Matthew W. Murphy v. Columbus McKinnon Corporation ( 2022 )

2022 WI 109SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP1124
COMPLETE TITLE: Matthew W. Murphy,
Plaintiff-Appellant,
Wisconsin Power and Light Company,
Involuntary-Plaintiff,
v.
Columbus McKinnon Corporation,
Defendant-Respondent-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 399 Wis. 2d 18, 963 N.W.2d 837PDC No:2021 WI App 61 - Published
OPINION FILED: December 28, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 12, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Sauk
JUDGE: Michael P. Screnock
JUSTICES:
ROGGENSACK, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined
except for ¶¶38 and 41. KAROFSKY, J., filed a concurring
opinion, in which ANN WALSH BRADLEY and DALLET, JJ., joined.
HAGEDORN, J., filed an opinion concurring in part and dissenting
in part, in which ZIEGLER, C.J., and REBECCA GRASSL BRADLEY, J.,
joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs
filed by Larry J. Britton, Shannon M. Trevithick, Debora F.
Pagel, Esq., Kevin J. English, Erin E. Connare, and Britton &
Associates, S.C., Mequon, and Phillips Lytle LLP, Buffalo. There
was an oral argument by Kevin J. English, introduced by Shannon
M. Trevithick.
For the plaintiff-appellant, there was a brief filed by
Douglas J. Phebus, Victor M. Arellano, and Arellano & Phebus,
S.C. There was an oral argument by Douglas J. Phebus.
An amicus curiae brief was filed by Jesse B. Blocher and
Habush, Habush, & Rottier, S.C., Waukesha, for the Wisconsin
Association for Justice. There was an oral argument by Jesse B.
Blocher.
2
2022 WI 109NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP1124
(L.C. No. 2016CV51)
STATE OF WISCONSIN : IN SUPREME COURT
Matthew W. Murphy,
Plaintiff-Appellant,
Wisconsin Power and Light Company, FILED
Involuntary-Plaintiff, DEC 28, 2022
v. Sheila T. Reiff
Clerk of Supreme Court
Columbus McKinnon Corporation,
Defendant-Respondent-Petitioner.
ROGGENSACK, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined
except for ¶¶38 and 41. KAROFSKY, J., filed a concurring
opinion, in which ANN WALSH BRADLEY and DALLET, JJ., joined.
HAGEDORN, J., filed an opinion concurring in part and dissenting
in part, in which ZIEGLER, C.J., and REBECCA GRASSL BRADLEY, J.,
joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 PATIENCE DRAKE ROGGENSACK, J. We review a published
decision of the court of appeals1 that reversed in part and
1Murphy v. Columbus McKinnon Corp., 2021 WI App 61, 399
Wis. 2d 18, 963 N.W.2d 837.
No. 2020AP1124
affirmed in part the circuit court's2 grant of summary judgment
for defendant Columbus McKinnon Corporation ("CMC"). We begin
with the common law that applied to a design defect and then
interpret, for the first time, Wis. Stat. § 895.047 (2019-20)3
following the legislature's creation of this state's product
liability statute in 2011. We then apply the statute to the
facts of this case to affirm the court of appeals' mandate and
remand for further proceedings.
¶2 In interpreting Wisconsin's product liability statute
when the claim is for a defective design, we conclude as
follows: (1) Wis. Stat. § 895.047(1)(a) requires proof of a
more safe, reasonable alternative design the omission of which
renders the product not reasonably safe; (2) proof that the
consumer-contemplation standard4 as set out in § 895.047(1)(b)
(for strict liability claims for a defective design) has been
met; and (3) proof that the remaining three factors of a
§ 895.047(1) claim have been met. The statute's plain language
is clear in showing that the legislature codified the common law
consumer-contemplation standard in § 895.047(1)(b). We disagree
with the court of appeals' conclusion that the legislature
The
2 Honorable Michael P. Screnock of Sauk County,
presided.
All subsequent references to the Wisconsin Statutes are to
3
the 2019-20 version unless otherwise indicated.
The consumer-contemplation standard is sometimes referred
4
to herein and in our case law as the consumer-contemplation
test.
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No. 2020AP1124
discarded the consumer-contemplation test by incorporating the
risk-utility balancing test. We also decline to adopt comment f
of Restatement (Third) of Torts §2, upon which the court of
appeals relied. With a clear understanding of the requirements
that a plaintiff must establish, and considering the multiple
genuine disputes of material fact, which we explain below, we
affirm the court of appeals in reversing summary judgment and
remand to the circuit court for further proceedings.
I. BACKGROUND
¶3 As a society, we owe a great deal to those who ensure
electricity reaches our homes, work places, and public
institutions. But that electricity reaches us, thanks in large
part, due to the utility line technicians who perform a
dangerous job. The United States Bureau of Labor Statistics
recorded 2,310 nonfatal occupational injuries and illnesses for
electrical power-line installers and repairers in 2013.5
Plaintiff Matthew Murphy, a line technician for Wisconsin Power
& Light Company,6 was one of those injured workers, sustaining
substantial injury after a thirty-foot utility pole fell,
struck, and came to rest atop him while Murphy attempted to load
5 Bureau of Labor Statistics, U.S. Dep't of Labor, Injuries
and Illnesses of Line Installers and Repairers (Feb. 28, 2018),
https://www.bls.gov/opub/ted/2018/injuries-and-illnesses-of-
line-installers-and-repairers.htm (last visited Dec. 19, 2022).
6 Murphy "held the positions of Line Technician Apprentice,
Line Technician, and Technical Assistant." R. 44 at 52
(Wisconsin Power & Light Company Response to Interrogatory No.
15).
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No. 2020AP1124
used utility poles from the ground onto a trailer bed on May 14,
2013.7
¶4 Utility workers lift poles using a truck-mounted boom
featuring a winch, to which workers fix tongs that attach to the
pole to enable secure lifting. Murphy's employer, Wisconsin
Power and Light Company (WPL), provided regular training to its
linemen regarding the appropriate procedure for attaching tongs.
At least two styles of tongs were regularly on the trucks at the
time of Murphy's injury, including: "Dixie" style tongs and
"Hogg-Davis" jaw-style tongs. Dixie tongs resemble old-
fashioned ice tongs, and are attached by placing a pointed prong
on either side of the pole. Once the tongs are lifted upward,
Dixie tongs close in a manner akin to scissors, and the force of
upward lifting typically draws the points further into the pole
against which the tongs are placed. Different from the two-
prong Dixie tongs, Hogg-Davis jaw-style tongs feature multiple
(often three) teeth along the inside of each side of the tongs.
Jaw-style tongs clamp around the pole, providing six surfaces to
contact the pole during lifting.
¶5 When an individual lifts poles alone, line technicians
are trained to attach the lifting tongs to the winch and then to
the pole. Placement on the pole is paramount, and line
On the day of the accident, Murphy's "original job
7
assignment was to string wire at a different
location. . . . Plaintiff's work assignment changed to pick up
poles that had been removed from the ground and left lying to
the side of Golf Course Road." R. 44 at 52 (Wisconsin Power &
Light Company Response to Interrogatory No. 16).
4
No. 2020AP1124
technicians must be aware of two critical points for proper tong
placement: (1) the balance point relative to the length of the
pole; and (2) the attachment point as relative to the
circumference of the pole. Regarding the balance point, line
technicians are trained to place the lifting implement slightly
off of the balance point so that the higher "light" end is
toward the lineman. This placement prevents unpredictable
teetering in a pole lifted at the exact balance point, and it
ensures the lineman can push down on the higher end of a
slightly-askew pole, rather than lift up on the lower end.
Because poles are typically tapered, the balance point is not
necessarily in the exact middle of the pole. As for the
attachment point on the circumference, the tongs should grasp
the lower third of the pole's circumference, as viewed by cross-
section, to prevent slipping or falling that is more likely to
occur from attachment nearer to the middle or top-third points.
¶6 After selecting and attaching the desired tongs, line
technicians are trained to follow certain protocol while loading
poles from the ground onto a trailer bed. They are trained to
perform a test lift to ensure the lifting implement does not
slip or otherwise fail, and to test the attachment point.8 Line
technicians then lower and make adjustments to the tongs'
positioning, as needed. Having verified the tongs are attached
securely and at the appropriate placement, line technicians then
raise the hoist high enough to clear the sides of the truck bed.
8 Test lifts entail lifting the hoist anywhere from six
inches to two feet.
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No. 2020AP1124
¶7 Accordingly, line technicians must lift the pole at
least somewhat higher than six feet to ensure both ends of the
pole clear the side rails of the truck. They are trained not to
lift the hoist "above the lineman's head." They are similarly
trained not to stand under suspended poles, or to raise a load
overhead. However, line technicians must remain in close
proximity to the suspended poles, as they are trained to "right"
an askew pole by placing downward pressure on the upper end to
ensure the pole remains relatively horizontal to the ground.
¶8 While ideally line technicians work in pairs to
perform this task, utility companies acknowledge this is not
always feasible, and they also have trained them for independent
work. Line technicians have the option to wear a waist belt
that can remotely control the hoist. This device allows line
technicians to operate both the boom and winch, as well as place
as-needed pressure to right a pole.
¶9 Murphy had worked as a line technician for
approximately six years and had loaded and unloaded utility
poles numerous times. On the date of his injury, Murphy and a
colleague worked as a pair to load used utility poles from the
side of the road to a trailer. However, due to the poles'
location, the pair decided to bring the utility poles to the
location of the boom and hoist truck. As Murphy's coworker
dragged poles toward Murphy with one truck, Murphy independently
loaded poles onto a trailer using a waist belt and a separate
truck with the boom. Murphy attached Dixie tongs to an old,
6
No. 2020AP1124
weathered, hard pole. Once hoisted in the air, the pole came
loose from the tongs and struck Murphy, injuring him severely.
¶10 Murphy has no recollection of the accident due to his
injuries; his coworker did not witness the accident as he was
moving a truck. The only two eyewitnesses were drivers waiting
for Murphy's colleague to move the truck out of the way to
reopen traffic after dragging a pole to Murphy.
¶11 The Dixie tongs Murphy used on the date of his
accident were manufactured by defendant CMC. CMC is aware line
technicians use the Dixie tongs to lift poles, and it marketed
the tongs as "pole tongs" in its own advertisements. Murphy's
employer purchased the Dixie tongs intending to use them to lift
poles. Murphy brought a products liability lawsuit against CMC
alleging both strict product liability for a design defect under
Wis. Stat. § 895.047(1), relying on the Hogg-Davis jaw-style
design as providing a more safe alternative design, and as
support for a common law claim of negligent design.9
Initially, Murphy also alleged strict product liability
9
claims on the theory of failure to warn and, in addition to the
alternative design of "Hogg-Davis" jaw-style tongs, a second
alternative choker-style design. Additional defendants included
CM Hydraulic Tool Supply, Inc., from whom Murphy's employer
purchased the CMC "Dixie" tongs, and CM Hydraulic's insurer,
United Fire & Casualty. Murphy's former employer, Wisconsin
Power and Light Company, is an involuntary plaintiff in this
lawsuit. In September 2018, Murphy, CM Hydraulic, and United
Fire settled for an undisclosed amount. Murphy confirmed his
withdrawal of the failure to warn claim at a hearing for summary
judgment on December 10, 2018. The court of appeals confirmed
Murphy "concedes through silence that he has forfeited and
abandoned argument based on this purported alternative [choker-
style] design." Murphy, 399 Wis. 2d 18, ¶14. The issue of
choker-style tongs was not raised with this court, so we, too,
7
No. 2020AP1124
¶12 Following over two years of discovery, CMC moved for
summary judgment. Finding genuine disputes of material fact,
the circuit court denied summary judgment and recommended the
parties reconvene with their experts to resolve unanswered
questions. Four months later, the court denied summary judgment
again, reasoning the persistent factual disputes and difficulty
in allocating fault did not allow for summary judgment on
Murphy's claims or on CMC's defenses. The parties set a trial
date for April 2020. Faced with delaying the trial
significantly due to the COVID-19 pandemic, the circuit court
sua sponte reconsidered CMC's motion for summary judgment at a
hearing on motions in limine and granted summary judgment for
CMC. Murphy appealed.
¶13 The court of appeals reversed in part and affirmed in
part. Agreeing with the circuit court that there was
insufficient evidence to support Murphy's second alternative
choker-design theory, the court of appeals affirmed summary
judgment on that claim in favor of CMC. Regarding the primary
alternative design theory of Hogg-Davis jaw-style tongs,
however, the court of appeals concluded there were genuine
disputes of material fact, and reversed summary judgment.10
Lastly, the court of appeals acknowledged that multiple genuine
treat the second alternative design theory as abandoned.
CMC also raised a question regarding admissibility of
10
expert witness testimony on review, which it did not raise at
the court of appeals. As this question does not properly appear
before us, we decline to address it, as is our prerogative.
State v. Mark, 2006 WI 78, ¶11, 292 Wis. 2d 1, 718 N.W.2d 90.
8
No. 2020AP1124
disputes of material fact precluded it from apportioning
negligence to affirm summary judgment for CMC or from addressing
CMC's other fact-specific defenses. CMC sought review before
us, which we granted.
II. DISCUSSION
A. Standard of Review
¶14 This case presents a question of statutory
interpretation, which we independently decide. Andruss v.
Divine Savior Healthcare Inc., 2022 WI 27, ¶24, 401 Wis. 2d 368,
973 N.W.2d 435.
¶15 CMC asks us to reinstate the circuit court's grant of
summary judgment in its favor. We review summary judgment
independently. In so doing, we decide whether there are genuine
issues of material fact, but we do not resolve any disputed
factual issues. Id., ¶¶40, 42. Essentially, we apply the same
methodology as the circuit court, although we benefit from the
decisions of both the circuit court and the court of appeals.
Butler v. Advanced Drainage Sys., Inc., 2006 WI 102, ¶17, 294
Wis. 2d 397, 717 N.W.2d 760.
B. Development of Wisconsin's Product Liability Law
¶16 In resolving the issues raised in this case, we review
the development of Wisconsin's product liability law as
established in the common law and the parties' positions
regarding the interpretation of Wis. Stat. § 895.047(1),
followed by our statutory interpretation.
9
No. 2020AP1124
1. Common Law11
¶17 As we begin, we note that the better part of the last
century featured changes to the landscape of strict product
liability. Dippel v. Sciano, 37 Wis. 2d 443, 449, 155 N.W.2d 55(1967). While at one point an injured person needed to
demonstrate privity of contract to establish liability, United
States jurisdictions, including Wisconsin, dispensed with that
requirement decades ago. Id. at 450. As we moved away from
grounding defective product claims in contract, we established
manufacturer and supplier liability in negligence——in tort. Id.
at 451-52, relying on Cohan v. Associated Fur Farms, Inc., 261
Wis. 584, 589, 53 N.W.2d 788 (1952) and Smith v. Atco Co., 6
Wis. 2d 371, 383-84, 94 N.W.2d 697 (1959).12
¶18 In Dippel, we voiced a desire to move more slowly in
developing our products liability law than other jurisdictions.
Dippel, 37 Wis. 2d at 453. But, in the absence of statutory
guidance, we adopted a rule of strict liability in accord with
11"Common law" has been defined as "The body of law derived
from judicial decisions." Black's Law Dictionary 293 (8th ed.
2004).
12Smith v. Atco Co., 6 Wis. 2d 371, 383-84, 94 N.W.2d 697(1959) ("The question of liability should be approached from the
standpoint of the standard of care to be exercised by the
reasonably prudent person in the shoes of the defendant
manufacturer or supplier. Such an approach will eliminate any
necessity of determining whether a particular product is
'inherently dangerous.' If a manufacturer or supplier is
hereafter to be relieved from liability as a matter of law by
the courts, such result should be reached on the basis that
there was no causal negligence established against the defendant
rather than that the product was not inherently dangerous.").
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No. 2020AP1124
that set forth in § 402A of the Restatement (Second) of Torts
(Am. Law Inst. 1965). Id. at 453, 458-59, 462.13 Section 402A
states:
(1) One who sells any product in a defective
condition unreasonably dangerous to the user or
consumer or to his property is subject to liability
for physical harm thereby caused to the ultimate user
or consumer, or to his property, if
(a) The seller is engaged in the business of
selling such a product, and
(b) It is expected to and does reach the user or
consumer without substantial change in the
condition in which it is sold.
(2) The rule stated in Subsection (1) applies
although
(a) The seller has exercised all possible care in
the preparation and sale of his product, and
(b) The user or consumer has not bought the
product from or entered into any contractual
relation with the seller.
Restatement (Second) of Torts § 402A.
¶19 By adopting Restatement (Second) of Torts § 402A, we
set out five requirements that a plaintiff must prove to prevail
in a strict liability products claim.14 Id. at 460. At the same
13"Strict liability in tort for the sale of a defective
product unreasonably dangerous to an intended user or consumer
now arises in this state by virtue of a decision of this court
[as opposed to by statute]." Dippel v. Sciano, 37 Wis. 2d 443,
462, 155 N.W.2d 55 (1967).
14"From a reading of the plain language of the rule, the
plaintiff must prove (1) that the product was in defective
condition when it left the possession or control of the seller,
(2) that it was unreasonably dangerous to the user or consumer,
(3) that the defect was a cause (a substantial factor) of the
plaintiff's injuries or damages, (4) that the seller engaged in
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No. 2020AP1124
time, we acknowledged available defenses of assumption of risk
and contributory negligence when a plaintiff failed to exercise
reasonable care. Id. at 459-60. We also acknowledged that the
product must be "reasonably used for the purpose for which it
was intended," and that the "abuse or alteration of the product
may relieve or limit liability."15 Id. at 460.
the business of selling such product or, put negatively, that
this is not an isolated or infrequent transaction not related to
the principal business of the seller, and (5) that the product
was one which the seller expected to and did reach the user or
consumer without substantial change in the condition it was when
he sold it." Id. at 460.
15 However, by keeping traditional defenses such as
comparative negligence in adopting Restatement (Second) of Torts
§ 402A, Wisconsin did not wholesale adopt strict liability.
Rather, as one justice proclaimed, this court merely adopted a
manner to establish "negligence as a matter of law and such
negligence is subject to the ordinary rules of causation and the
defense applicable to negligence. While the [Restatement of
Torts (Second) § 402A], imposes a strict or absolute liability
regardless of the negligence of the seller, we do not." Id. at
464 (Hallows, J., concurring) (underscored sentence adopted in
Schuh v. Fox River Tractor Co., 63 Wis. 2d 728, 735, 218 N.W.2d
279 (1974)). By establishing the requisite elements in § 402A,
a Wisconsin plaintiff was "relieved of the burden of proving
specific acts of negligence by the manufacturer who is then
deemed negligent per se." Vincer v. Esther Williams All-
Aluminum Swimming Pool Co., 69 Wis. 2d 326, 330, 230 N.W.2d 794(1975).
See also, Greiten v. La Dow, 70 Wis. 2d 589, 600 n.1, 235
N.W.2d 677 (1975) (Heffernan, J. concurring), dismissing the
language in Arbet v. Gussarson, 66 Wis. 2d 551, 555-56, 225
N.W.2d 431, that suggests § 402A merely shifted the burden of
negligence (stating, "Under this doctrine [of strict products
liability], where plaintiff shows that a manufacturer markets a
product in a 'defective condition' which is 'unreasonably
dangerous to the user,' the manufacturer then has the burden to
prove lack of negligence.").
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No. 2020AP1124
¶20 In Vincer, we clarified that the appropriate test to
employ as to whether a product is "unreasonably dangerous," as
required under § 402A(1) of the Restatement (Second), is the
consumer-contemplation test. Vincer v. Esther Williams All-
Aluminum Swimming Pool Co., 69 Wis. 2d 326, 332, 230 N.W.2d 794(1975). As such, we established that the consumer-contemplation
test for an unreasonably dangerous defect "depends []on the
reasonable expectations of the ordinary consumer concerning the
characteristics of this type of product." Id. The test is
objective and not dependent on a particular injured consumer's
knowledge. Id. However, we also reasoned that a particular
injured consumer's knowledge of the dangerous condition of a
product may be "evidence of contributory negligence under the
circumstances." Id. We then discussed comments g (defective
condition) and i (unreasonably dangerous) to § 402A in Vincer,
id. at 330, 331, and we concluded that "a product can be deemed
defective and unreasonably dangerous based solely on consumer
expectations." Green v. Smith & Nephew AHP, Inc., 2001 WI 109,
¶4, 245 Wis. 2d 772, 629 N.W.2d 727.
¶21 Accordingly, the consumer-contemplation test was
employed to assess whether a product was "unreasonably
dangerous" as well as whether it was in a "defective condition."
Stated otherwise, a litigant was required to show that the
product design was "dangerous to an extent beyond that which
would be contemplated by the ordinary consumer who purchased it,
with the ordinary knowledge common to the community as to its
characteristics." Vincer, 69 Wis. 2d at 331 (quoting
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No. 2020AP1124
Restatement (Second) of Torts § 402A cmt. i). We have
reaffirmed that "Wisconsin is committed to the consumer-
contemplation test for determining whether a product is
defective." Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 121
Wis. 2d 338, 368, 360 N.W.2d 2 (1984); see also Green, 245
Wis. 2d 772, ¶46.
¶22 As the law in products liability developed, the
American Law Institute introduced the Restatement (Third) of
Torts: Products Liability, in 1998. In pertinent part, Section
2 states:
A product is defective when, at the time of sale or
distribution, it contains a manufacturing defect, is
defective in design, or is defective because of
inadequate instructions or warnings. A product:
(a) contains a manufacturing defect when the
product departs from its intended design . . . .
(b) is defective in design when the foreseeable
risks of harm posed by the product could have
been reduced or avoided by the adoption of a
reasonable alternative design by the seller or
other distributor . . . and the omission of the
alternative design renders the product not
reasonably safe;
(c) is defective because of inadequate
instructions or warnings . . . .
Restatement (Third) of Torts § 2.
¶23 Section 2 of the Third Restatement separated products
liability claims into three categories: "manufacturing defects,
design defects, and defects based on failure to warn." Godoy ex
rel. Gramling v. E.I. du Pont de Nemours & Co., 2009 WI 78, ¶17,
319 Wis. 2d 91, 768 N.W.2d 674. CMC has argued that § 2(b)
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No. 2020AP1124
replaced the consumer-contemplation test with the risk-utility
test as the standard for judging whether a product is in a
defective condition. We repeatedly have declined invitations to
adopt the Restatement (Third) of Torts § 2. See Sharp v. Case
Corp., 227 Wis. 2d 1, 19, 595 N.W.2d 380 (1999); Green, 245
Wis. 2d 772, ¶74.16
¶24 While parties did not invite this court to adopt the
Restatement (Third) of Torts § 2 in Godoy or Horst, the separate
writings in both cases, issued the same day in 2009, expounded
the merits and deficiencies of both § 402A of Restatement
(Second) and § 2(b) of the Restatement (Third).17 Godoy, 319
Wis. 2d 91, Horst v. Deere & Co., 2009 WI 75, 319 Wis. 2d 147,
769 N.W.2d 536.
¶25 In 2011, the legislature created Wis. Stat. § 895.047as part of Act 2, which altered the landscape of Wisconsin's
product liability law. Accordingly, § 895.047 is the first
statute to guide the judiciary in product liability claims in
this state. The statute, now at issue, establishes what a
plaintiff must show in order to prove a claim of strict
See also Haase v. Badger Mining Corp., 2004 WI 97, ¶23,
16
274 Wis. 2d 143, 682 N.W.2d 389 (declining to adopt Restatement
(Third) of Torts § 5).
The parties point out that despite the fact that four
17
Justices professed a preference for the Restatement (Third)
§ 2(b) and spoke favorably of adopting it, the court did not do
so in either case. One of the four Justices did not participate
in either Godoy (Justice Roggensack) or Horst (Justice Ziegler).
Godoy ex rel. Gramling v. E.I. du Pont de Nemours & Co., 2009 WI
78, 319 Wis. 2d 91, 768 N.W.2d 674; Horst v. Deere & Co., 2009
WI 75, 319 Wis. 2d 147, 769 N.W.2d 536.
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No. 2020AP1124
liability for a design defect. This case presents the first
opportunity for judicial statutory interpretation of § 895.047
since its creation. We pause briefly to summarize the parties'
arguments regarding the statute's meaning.
2. Parties' Arguments
¶26 CMC urges this court to read Wis. Stat. § 895.047 as a
wholesale adoption of the Restatement (Third) of Torts' risk-
utility test as complete replacement of the common law consumer-
contemplation test. CMC interprets the separate writings in
Godoy and Horst as directives from the court to the legislature,
and suggests the legislature adopted the entire Restatement
(Third) of Torts § 2(b) in response. CMC argues the identical
language between a large portion of the Restatement (Third)
§ 2(b) and one of the five paragraphs of § 895.047(1) must,
therefore, mean that the legislature did away with decades of
common law in a few short strokes of the pen. In asserting
Wisconsin adopted the Restatement (Third) of Torts when the
legislature created § 895.047 in 2011, CMC summarily concludes
that Wisconsin has "abandon[ed] any distinction between strict
liability and negligence actions."
¶27 Contrastingly, Murphy and amicus argue a
straightforward, plain language reading of Wis. Stat. § 895.047.
They assert that the Wisconsin Legislature created a unique,
hybrid products liability claim that includes five requirements,
but which retains the consumer-contemplation test and the
distinction between strict liability and negligence as to
product claims.
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No. 2020AP1124
¶28 We conclude, as we explain below, Wis. Stat. § 895.047remains loyal to Wisconsin's roots in the common law consumer-
contemplation test. While § 895.047 appears to borrow language
from the Restatement (Third) of Torts, the legislature did not
adopt the entirety of § 2, nor did it enact the Restatement's
voluminous comments.18
3. Wisconsin Stat. § 895.047
¶29 Statutory interpretation "begins with the language of
the statute. If the meaning of the statute is plain, we
ordinarily stop the inquiry." State ex rel. Kalal v. Cir. Ct.
for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d
110. It is helpful to revisit the principles of statutory
interpretation we set forth in Kalal:
Judicial deference to the policy choices enacted into
law by the legislature requires that statutory
interpretation focus primarily on the language of the
statute. We assume that the legislature's intent is
expressed in the statutory language. Extrinsic
evidence of legislative intent may become relevant to
statutory interpretation in some circumstances, but is
not the primary focus of inquiry. . . . It is the
enacted law, not the unenacted intent, that is binding
on the public. Therefore, the purpose of statutory
interpretation is to determine what the statute means
so that it may be given its full, proper, and intended
effect.
Id., ¶44. "Statutory language is read where possible to give
reasonable effect to every word, in order to avoid surplusage."
Id., ¶46. We do not consult extrinsic sources of interpretation
Amicus points out Restatement (Third) of Torts § 2 has 18
18
comments with a total of 11,000 words. See also Restatement
(Third) of Torts § 2.
17
No. 2020AP1124
if the statute is unambiguous, although we do read a statute
within its context and according to its structure in a plain
reading interpretation. Id., ¶¶46, 49.
¶30 With these principles in mind, Wis. Stat. § 895.047(1)
states in relevant part:
[A] manufacturer is liable to a claimant if the
claimant establishes all of the following by a
preponderance of the evidence:
(a) That the product is defective because
it . . . is defective in design. . . . A product is
defective in design if the foreseeable risks of harm
posed by the product could have been reduced or
avoided by the adoption of a reasonable alternative
design by the manufacturer and the omission of the
alternative design renders the product not reasonably
safe.
(b) That the defective condition rendered the
product unreasonably dangerous to persons or property.
(c) That the defective condition existed at the
time the product left the control of the manufacturer.
(d) That the product reached the user or
consumer without substantial change in the condition
in which it was sold.
(e) That the defective condition was a cause of
the claimant's damages.
§ 895.047(1). In so providing, the legislature set a
particularized requirement that proof of the requirements of
"all" paragraphs in subsec. (1) is necessary to prevail on a
defective design claim. The legislature has required meeting
statutory criteria in other contexts. See, e.g., County of Dane
v. LIRC, 2009 WI 9, ¶¶26, 27, 315 Wis. 2d 293, 759 N.W.2d 571(directing that when statutory criteria define a condition, all
18
No. 2020AP1124
the requirements of the statute must be met in order to
prevail). Accordingly, each paragraph following subsec. 1 is an
obligation a plaintiff must satisfy to move forward with a
defective design, product-liability claim.
¶31 While the language in para. (a) repeats the language
from the Restatement (Third) § 2 subsecs. (a), (b), and (c),
Wis. Stat. § 895.047(1) paras. (b), (c), (d), and (e) codify the
common law Wisconsin courts have developed and applied for
decades. For example, § 895.047(1)(b) requires that the
"defective condition" renders the product "unreasonably
dangerous," which is a part of the common law test. See
Tietsworth v. Harley-Davidson, Inc., 2004 WI 32, ¶¶7, 8, 270
Wis. 2d 146, 677 N.W.2d 233 (applying the "unreasonably
dangerous" common law test to Harley's TC-88's defective
engine). Also, in Kozlowski v. John E. Smith's Sons Co., 87
Wis. 2d 882, 889, 275 N.W.2d 915 (1979), we set out common law
factors such as recognizing an "unreasonably dangerous product,"
"fail[ing] to exercise ordinary care to render its product
safe," and "failing to inform users of the defective condition,"
all in regard to an unreasonably dangerous air compression
sausage stuffer).
¶32 In addition, Wis. Stat. § 895.047(6) specifically
maintains the criteria for claims of negligence and breach of
warranty, claims well-grounded in Wisconsin common law.19 See
Wisconsin Stat. § 895.047(6) states: "Inapplicability.
19
This section does not apply to actions based on a claim of
negligence or breach of warranty."
19
No. 2020AP1124
Stehlik v. Rhoads, 2002 WI 73, ¶¶52, 53, 253 Wis. 2d 477, 645
N.W.2d 889 (explaining the common law limitations on liability
grounded in negligence); Foley v. City of West Allis, 113
Wis. 2d 475, 483, 335 N.W.2d 824 (1983) (explaining common law
standard of ordinary care in regard to use of seat belts);
Robert H. Lande, A Traditional and Textualist Analysis of the
Goals of Antitrust, 81 Fordham L. Rev. 2349, 2366 (citing Scalia
& Garner, Reading Law: The Interpretation of Legal Texts (2012)
at 320, explaining the canon of imputed common law meaning as
providing that when a statute uses a common-law term without
defining it, the statute adopts its common law meaning).
¶33 Paragraph (a) of Wis. Stat. § 895.047(1)(a) mirrors
language from Restatement (Third) § 2. It does not adopt the
common law standard as § 895.047(b) does. The terms and
language of para. (1)(a) are not complex, technical, or
difficult to understand. Therefore, our focus must be
"primarily on the language of the statute." Kalal, 271
Wis. 2d 633, ¶44. Section 895.047(1)(a), as relevant here to
the issue of claimed design defects, establishes two unambiguous
requirements that a plaintiff must allege and prove: (1) "the
foreseeable risks of harm posed by the product could have been
reduced or avoided by the adoption of a reasonable alternative
design;" and (2) "the omission of the alternative design renders
the product not reasonably safe." Accordingly, the plain
language of paragraph (1)(a) is clear. Since the legislature
did not direct us further to incorporate or apply a test from
the Restatement (Third) of Torts § 2, we conclude "[i]t is the
20
No. 2020AP1124
enacted law, not the unenacted intent, that is binding on the
public." Id. We interpret para. (1)(a) by its plain language,
and conclude that the paragraph is unambiguous; therefore, we
cease our inquiry. Id., ¶45.
¶34 However, for the sake of thoroughness, we address
another of CMC's arguments on the interpretation of para.
(1)(a). CMC asserts the word "reasonable/reasonably" in para.
(1)(a) accomplishes at least one, if not all, of the
following: (1) it creates the risk-utility balancing test found
in Restatement (Third) of Torts § 2(b), and reads in the
requirements of comment f ("Design defects: factors relevant in
determining whether the omission of a reasonable alternative
design renders a product not reasonably safe");20 (2) it confuses
Comment f to Restatement (Third) of Torts § 2 spans three
20
pages of the Restatement, so we relay only the portion the court
of appeals relied on:
A broad range of factors may be considered in
determining whether an alternative design is
reasonable and whether its omission renders a product
not reasonably safe. The factors include, among
others, the magnitude and probability of the
foreseeable risks of harm, the instructions and
warnings accompanying the product, and the nature and
strength of consumer expectations regarding the
product, including expectations arising from product
portrayal and marketing. See Comment g. The relative
advantages and disadvantages of the product as
designed and as it alternatively could have been
designed may also be considered. Thus, the likely
effects of the alternative design on production costs;
the effects of the alternative design on product
longevity, maintenance, repair, and esthetics; and the
range of consumer choice among products are factors
that may be taken into account. A plaintiff is not
necessarily required to introduce proof on all of
21
No. 2020AP1124
factfinders; and (3) it blurs any relevant distinction between
the statute's terms.
¶35 Regardless of where the language that was employed in
Wis. Stat. § 895.047(1)(a) originated, the legislature left no
further direction that the statute should be interpreted by
superimposing extra-statutory language. Stated otherwise, we
will not read Restatement language or Restatement comments into
a statute, simply because the legislature selectively adopted
some wording from the Restatement.
¶36 As for CMC's argument that the word "reasonable"
serves as an impediment to juries, bench and bar alike, we must
disagree. Parties adjudicate the issue of reasonability all the
time——we need look only to the other claim in this
action: negligence. One element of a negligence claim turns on
whether the defendant's standard of care fell below that of a
"reasonable person." Jankee v. Clark Cnty., 2000 WI 64, ¶9, 235
Wis. 2d 700, 612 N.W.2d 297. To our knowledge, circuit courts,
attorneys, and juries have had little trouble understanding and
applying the issue of reasonability.21
these factors; their relevance, and the relevance of
other factors, will vary from case to case.
Restatement (Third) of Torts § 2 cmt. f. See also Murphy, 399
Wis. 2d 18, ¶31.
21As parties pointed out at oral argument, courts have used
the Wis. JI——Civil 3260.1 (2014) for Product Liability under
Wis. Stat. § 895.047 for over a decade and there have been "no
appeals, no issues." Our own research turned up no results of
cases appealing the use or interpretation of the standard Wis.
JI——Civil 3260.1. We do, however, note the comments to Wis. JI—
—Civil 3260.1 suggest the legislature abandoned the consumer-
22
No. 2020AP1124
¶37 At first blush, CMC's final argument regarding the
challenge in reading Wis. Stat. § 895.047(1)(a) within the
entirety of § 895.047 provides more substantive contentions, but
we dispose of the argument because of para. (a)'s plain language
and para. (b)'s codification of the common law. CMC asserts
that para. (a)'s language "not reasonably safe" cannot be read
in harmony with para. (b)'s "unreasonably dangerous." But, just
as we can identify that para. (a) codifies language from the
Restatement (Third), we also can identify (b)'s "unreasonably
dangerous" language as a codification of the consumer-
contemplation test from this state's common law. See e.g.,
Dippel, 37 Wis. 2d 443; Vincer, 69 Wis. 2d 326; Green, 245
Wis. 2d 772. This is where we recognize the legislature's
retention of the consumer-contemplation test in the statute.
Scalia & Garner, supra, at 320 (describing canon of imputed
common law meaning).
¶38 Further, Wis. Stat. § 895.047 presents the rare
situation in which the legislature recorded its findings and
intent in neighboring Wis. Stat. § 895.046, which also was
created under Act 2. While we need not consult legislative
intent, we have done so to confirm a plain meaning analysis in
the past. Kalal, 271 Wis. 2d 633, ¶51. In § 895.046(1g), the
legislature recorded its intent in clarifying product liability
contemplation test and adopted the risk-utility test, which is
problematic and incorrect.
23
No. 2020AP1124
law was in part "to return tort law to its historical, common
law roots."22
¶39 As a final matter, we briefly address CMC's argument,
noted earlier, that Wisconsin's product liability statute
eliminates plaintiffs' ability to bring a claim in negligence
for product design. To the contrary, Wis. Stat. § 895.047(6)
22 Wisconsin Stat. § 895.046(1g) states:
Legislative findings and intent. The legislature
finds that it is in the public interest to clarify
product liability law, generally, and the application
of the risk contribution theory of liability first
announced by the Wisconsin Supreme Court in Collins v.
Eli Lilly Co., 116 Wis. 2d 166[, 342 N.W.2d 37]
(1984), specifically, in order to return tort law to
its historical, common law roots. This return both
protects the rights of citizens to pursue legitimate
and timely claims of injury resulting from defective
products, and assures that businesses may conduct
activities in this state without fear of being sued
for indefinite claims of harm from products which
businesses may never have manufactured, distributed,
sold, or promoted, or which were made and sold decades
ago. The legislature finds that the application of
risk contribution to former white lead carbonate
manufacturers in Thomas v. Mallett, [2005 WI 129, 285
Wis. 2d 236, 701 N.W.2d 523], was an improperly
expansive application of the risk contribution theory
of liability announced in Collins, and that
application raised substantial questions of
deprivation of due process, equal protection, and
right to jury trial under the federal and Wisconsin
constitutions. The legislature finds that this
section protects the right to a remedy found in
[A]rticle I, [S]ection 9, of the Wisconsin
Constitution, by preserving the narrow and limited
application of the risk contribution theory of
liability announced in Collins.
§ 895.046(1g).
24
No. 2020AP1124
plainly states the products liability section "does not apply to
actions based on a claim of negligence or breach of warranty."
Such claims establish their provenance outside of § 895.047, and
the statute does not extinguish a plaintiff's ability to bring a
claim in negligence against a product manufacturer.
¶40 Therefore, Wis. Stat. § 895.047(1) enumerates five
criteria a plaintiff must establish in a defective design claim
against a manufacturer.23 Despite Restatement (Third), a plain
language reading of para. (a) establishes two requirements,
noted above. The statute in other paragraphs codifies
Wisconsin's commitment to the consumer-contemplation test (para.
(b)), while also codifying this state's common law in paras.
(c), (d), and (e). Lastly, subsec. (6) does not preclude
plaintiffs from bringing a common law negligent design claim
when the plaintiff also alleges a strict liability cause of
action against a manufacturer.
¶41 Although we decline to adopt any of Restatement
(Third) of Torts § 2 comments today, including comment f upon
which the court of appeals extensively relied, the common law
While
23 Dippel, 37 Wis. 2d 443, establishes five
requirements for a product liability claim under § 402A, and
Wis. Stat. § 895.047(1) also enumerates five requirements, the
statute tracks the following changes: First, § 895.047(1) does
not include one requirement from Dippel "(4) that the seller
engaged in the business of selling such product or, put
negatively, that this is not an isolated or infrequent
transaction not related to the principal business of the
seller;" id. at 460, and secondly, of course, § 895.047(1)
includes para. (1)(a), the language of which is borrowed from
the Restatement (Third) of Torts § 2.
25
No. 2020AP1124
pre-2011 continues to provide persuasive authority in products
liability cases.24
24The Sumnicht factors may be persuasive in regard to the
reasonableness of a design and are:
1) [C]onformity of defendant's design to the practices
of other manufacturers in its industry at the time of
manufacture; 2) the open and obvious nature of the
alleged danger; . . . 3) the extent of the claimant's
use of the very product alleged to have caused the
injury and the period of time involved in such use by
the claimant and others prior to the injury without
any harmful incident. . . . 4) the ability of the
manufacturer to eliminate danger without impairing the
product's usefulness or making it unduly expensive;
and 5) the relative likelihood of injury resulting
from the product's present design.
Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 121 Wis. 2d 338,
372, 360 N.W.2d 2 (1984) (citing Collins v. Ridge Tool Co., 520
F.2d 591, 594 (7th Cir. 1975)).
26
No. 2020AP1124
C. Summary Judgment
¶42 This brings us to the court of appeals' decision to
reverse the circuit court's grant of summary judgment in CMC's
favor. "Every decision on a motion for summary judgment begins
with a review of the complaint to determine whether, on its
face, it states a claim for relief." Butler, 294 Wis. 2d 397,
¶18 (citing Hoida, Inc. v. M&I Midstate Bank, 2006 WI 69, ¶16,
291 Wis. 2d 283, 717 N.W.2d 17). If it does, "we examine the
answer to see if issues of fact or law have been joined."
Butler, 294 Wis. 2d 397, ¶18. When the "complaint and answer
are sufficient to join issue, we examine the moving party's
affidavits to determine whether they establish a prima facie
case for summary judgment." Id. Any factual dispute will not
necessarily preclude summary judgment, only disputes of material
fact will do so. Id. Accordingly, we review whether Murphy's
complaint asserted (1) a strict product liability claim under
Wis. Stat. § 895.047, and (2) a negligent design claim against
CMC.
¶43 To prevail under the strict product liability claim,
Murphy, a line technician, must demonstrate all of the five
statutory factors: First, the foreseeable risks of the Dixie
tongs could have been reduced or avoided by the adoption of a
reasonable alternative design and CMC's omission of a reasonable
alternative design rendered the Dixie tongs not reasonably safe.
Murphy's expert witness, Dr. John DeRosia, opined that "[t]here
are several alternative designs that do not share the single
point of failure flaw of the Dixie lifting tongs. One device,
27
No. 2020AP1124
manufactured by Hogg-Davis . . . uses multiple teeth on each
side of the tongs. The [Hogg-Davis] tongs also incorporate a
locking mechanism that prevents them [from] opening
inadvertently."25 DeRosia also explained:
An advantage of the Hogg-Davis tongs would be that the
weight of the tongs, over 22 pounds, would tend to
push the tongs open completely, allowing the teeth of
the tongs to engage fully. In [an attached photo
showing the tongs holding a suspended pole], the top
four of the six teeth are embedded into the wood of
the pole. The bottom two teeth, being closer together
than the teeth above also act to trap the pole and
prevent the pole from escaping. If a failure of the
grasp of the upper four teeth occurs, the bottom teeth
would prevent the pole from falling out of the grasp
of the tongs."[26]
¶44 Accordingly, Murphy provided evidence that the Dixie
tongs, by their defective design of a single attachment point on
each side of the pole, presented foreseeable risks that a pole
could fall out of the tongs' grasp. DeRosia points to a
reasonable alternative design that features multiple contact
surfaces, and an additional set of teeth below the teeth
contacting a suspended pole that would serve to catch the pole
if a clamp failed. DeRosia also describes the smaller opening
at the bottom of the Hogg-Davis tongs that prevents loss of a
clamped pole. DeRosia opined that the Dixie tongs' omission of
additional teeth or contact surfaces renders the Dixie tongs not
reasonably safe.
25 R. 42 at 4.
26 R. 154 at 6.
28
No. 2020AP1124
¶45 DeRosia also opined that the Dixie tongs failed to
address the foreseeable risk that a long, heavy pole would tilt
or teeter when lifted by tongs with a single point on either
side. DeRosia's reports sufficiently support the theory that a
reasonable alternative design, such as the six, half-inch-long
teeth of the Hogg-Davis tongs, would reduce or avoid the
foreseeable risks posed by a tilting pole.
¶46 Second, the Dixie tongs' defect rendered the product
unreasonably dangerous to persons or property under the
consumer-contemplation standard. Under that test, "the article
sold must be dangerous to an extent beyond that which would be
contemplated by the ordinary consumer who purchases it, with the
ordinary knowledge common to the community as to its
characteristics." Vincer, 69 Wis. 2d at 331. At the time of
Murphy's accident, CMC advertised the Dixie tongs as "Lifting
tongs [] used to lift logs and poles into place. Lifting tongs
are certified and tested for overhead lifting."27 Further, the
pole that fell on Murphy was 600 pounds, well within the Dixie
tongs' 2,500 pound workload rating. Given that Murphy was not
lifting a load beyond the tongs' rated maximum, and that the
tongs are advertised for lifting poles, and certified for
overhead lifting, he provided evidence that an ordinary consumer
would not anticipate anything more than the inherent dangers of
working with a heavy, suspended load. Line technicians would
not expect the Dixie tongs to pose a danger beyond what they
27 R. 42 at 4.
29
No. 2020AP1124
could contemplate, such as the tongs losing gripping force based
on a teetering pole. Accordingly, based on the evidence Murphy
presented, an ordinary consumer of Dixie tongs would not
contemplate the dangers posed by the Dixie tongs' unsafe design.
Murphy survives on para. (b) as well.
¶47 The last factor in Murphy's strict product liability
claim, that the defective design was a cause of Murphy's
damages, is supported by DeRosia's opinion, but is contested by
CMC, who has raised Murphy's conduct as a cause of his injuries.
CMC also had its own expert witness who did not concur in
DeRosia's judgment. This does not defeat Murphy's claims but it
may create disputes of material facts in regard to his strict
products liability claim for a defectively designed product.28
¶48 To prevail on the negligent design claim, Murphy must
establish a traditional negligence claim that CMC owed him a
duty, that the Dixie tongs' design did not meet the standard of
care that duty required, and therefore CMC breached its duty,
which caused his injuries. Collins v. Eli Lilly Co., 116
Wis. 2d 166, 181-82, 342 N.W.2d 37 (1984); see also Wis. JI——
Civil 1005.
¶49 CMC's answer denies all elements of the claims,
although it concedes it manufactured the Dixie tongs at issue in
Murphy's injuries. CMC also asserts Murphy was contributorily
negligent as a matter of law, which CMC contends precludes his
Whether the pole would have fallen from an alternative
28
design tongs, e.g., the Hogg-Davis tongs, is a contested
material fact.
30
No. 2020AP1124
recovery. Therefore, CMC argues, it is entitled to summary
judgment as a matter of law.
¶50 A review of the record suggests the parties
dispute: (1) whether Murphy stood beneath or to the side of the
pole as it fell; (2) whether Murphy's hands were outstretched to
right the pole or on the remote control; (3) how high Murphy
lifted the pole; (4) where Murphy attached the tongs on the
pole, relative to the two critical points; and (5) whether
Murphy conducted a test lift. Because there are these and other
disputes of material fact, summary judgment is not appropriate.
¶51 Furthermore, "[a]s a general rule . . . the existence
of negligence is a question of fact which is to be decided by
the jury," as are questions of reasonability, and apportionment
of negligence. Ceplina v. S. Milwaukee Sch. Bd., 73 Wis. 2d
338, 342, 243 N.W.2d 183 (1976); accord Dottai v. Altenbach, 19
Wis. 2d 373, 375, 120 N.W.2d 41 (1963) ("It is a rare case when
summary judgment can be granted in an action grounded on
negligence"); Schuh v. Fox River Tractor Co., 63 Wis. 2d 728,
744, 218 N.W.2d 279 (1974) ("Generally, the apportionment of
negligence is for the jury."). Because there are disputed
issues of material fact, we affirm the court of appeals in
reversing summary judgment and remand for further proceedings.
III. CONCLUSION
¶52 In interpreting Wisconsin's product liability statute
when the claim is for a defective design, we conclude as
follows: (1) Wis. Stat. § 895.047(1)(a) requires proof of a
more safe, reasonable alternative design the omission of which
31
No. 2020AP1124
renders the product not reasonably safe; (2) proof that the
consumer-contemplation standard as set out in § 895.047(1)(b)
(for strict liability claims for a defective design) has been
met; and (3) proof that the remaining three factors of a
§ 895.047(1) claim have been met. The statute's plain language
is clear in showing that the legislature codified the common law
consumer-contemplation standard in § 895.047(1)(b). We disagree
with the court of appeals' conclusion that the legislature
discarded the consumer-contemplation test by incorporating the
risk-utility balancing test. We also decline to adopt comment
f, upon which the court of appeals relied. With a clear
understanding of the requirements that a plaintiff must
establish, and considering the multiple genuine disputes of
material fact, which we have explained above, we affirm the
court of appeals in reversing summary judgment and remand to the
circuit court for further proceedings.
By the Court.—The decision of the court of appeals is
affirmed.
32
No. 2020AP1124.jjk
¶53 JILL J. KAROFSKY, J. (concurring). I agree that
both Murphy's strict liability design defect claim and common
law negligence claim survive the motion for summary judgment
because Murphy has introduced material issues of fact on each of
the claims' elements.1 However, I write to clarify the
relationship between Wis. Stat. § 895.047 and the common law, as
well as the application of that law to the facts of this case.
¶54 I begin my concurrence by laying out the historic
common law test for a design defect claim, particularly focusing
on the "defect" and "unreasonably dangerous" elements of the
claim. Next, I interpret Wis. Stat. § 895.047, which
establishes the current test for a design defect claim, and
delineate which aspects of the current test draw from the common
law. Finally, I apply the elements of the statutory test found
in § 895.047(1)(a) and (1)(b) to the facts of this case and
determine, as the majority/lead opinion has, that Murphy has
established disputed issues of material fact for each element.
The majority/lead opinion states that in order to prevail
1
on its negligent design claim, Murphy will need to establish the
elements of a traditional negligence claim. See majority/lead
op., ¶48. With regard to the "duty" elements, I note that
Wisconsin has long followed the minority view set forth in the
dissent of Palsgraph. Rockweit by Donahue v. Senecal, 197 Wis.
2d 409, 419-20, 541 N.W.2d 742 (1995) (discussing Palsgraph v.
Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928) (Andrews,
J. dissenting)). Pursuant to this approach, everyone owes to
the world at large the duty of exercising ordinary care.
Hartleberg v. Norwest Bank Wis., 2005 WI 109, ¶17, 283 Wis. 2d
234, 700 N.W.2d 15. Thus, in Wisconsin, the test is whether the
"defendant failed to exercise ordinary care and the act or
omission complained of was the cause of the plaintiff's injury."
Hoida, Inc. v. M & I Midstate Bank, 2006 WI 69, ¶22, 291 Wis. 2d
283, 717 N.W.2d 17; see, also Wis JI-Civil 1005.
1
No. 2020AP1124.jjk
I. The Common Law Test
¶55 Prior to 2011, a litigant seeking to prove a design
defect claim looked to the consumer contemplation test, derived
from common law, to satisfy two elements of the claim: (1) that
the design was "defective," and (2) that the product was
"unreasonably dangerous." See Green v. Smith & Nephew AHP,
Inc., 2001 WI 109, ¶29, 245 Wis. 2d 772, 629 N.W.2d 727("[A]lthough defect and unreasonable danger are distinct
elements to a claim in strict products liability, both elements
are based on consumer expectations.").
¶56 To prove a product design "defective" under the
consumer contemplation test, a litigant was required to show
that the product was "in a condition not contemplated by the
ultimate consumer, which will be unreasonably dangerous to him."
Vincer v. Esther Williams All-Aluminum Swimming Pool Co., 69
Wis. 2d 326, 330, 230 N.W.2d 794 (1975)(quoting Restatement
(Second) of Torts § 402A, cmt. g).
¶57 To prove a product design was "unreasonably dangerous"
under the consumer contemplation test, a litigant was required
to show that the product design was "dangerous to an extent
beyond that which would be contemplated by the ordinary consumer
who purchases it, with the ordinary knowledge common to the
community as to its characteristics." Vincer, 69 Wis. 2d at 331(quoting Restatement (Second) of Torts § 402A cmt. i).
II. The Current Test
¶58 In 2011 the legislature enacted Wis. Stat. § 895.047.
This statute retains the common law distinction between the
2
No. 2020AP1124.jjk
"defect" and "unreasonably dangerous" elements. Importantly,
this statute also abrogates the consumer contemplation test for
the "defect" element of the claim. Section 895.047 reads as
follows:
(1) Liability of Manufacturer. In an action for
damages caused by a manufactured product based on a
claim of strict liability, a manufacturer is liable to
a claimant if the claimant establishes all of the
following by a preponderance of the evidence:
(a) That the product is defective because it
contains a manufacturing defect, is defective in
design, or is defective because of inadequate
instructions or warnings. . . . A product is
defective in design if the foreseeable risk of
harm posed by the product could have been reduced
or avoided by the adoption of a reasonable
alternative design by the manufacturer and the
omission of the alternative design renders the
product not reasonably safe. . . .
(b) That the defective condition renders the
product unreasonably dangerous to persons or
property.
(c) That the defective condition existed at the
time the product left the control of the
manufacturer.
(d) That the product reached the user or
consumer without substantial change in the
condition in which it was sold.
(e) That the defective condition was a cause of
the claimant's damages.
¶59 Section (1)(a), the defect element, clearly and
unambiguously sets out the test for when "[a] product is
defective in design." Instead of codifying the common law
consumer contemplation test, the legislature adopted language
from the Restatement (Third) of Torts that requires "defect" be
3
No. 2020AP1124.jjk
proved through the submission of a reasonable alternative
design, the omission of which renders the product not reasonably
safe.
¶60 This statutory test for "defect" is incompatible with
the common law consumer contemplation test. Specifically, the
statute is silent as to consumer contemplation, while the common
law test required that the product be in a condition "not
contemplated" by the consumer. The statute focuses on whether a
manufacturer adopted a reasonable alternative design, rendering
a consumer's contemplation of a product's condition irrelevant.
Clearly, section (1)(a) abrogates the common law with regard to
the "defect" element. See Wis. Mfrs. and Com. v. Evers, 2022 WI
38, ¶15, 977 N.W.2d 374 (stating that statutory language that
establishes a general rule applicable to all relevant claims
cannot coexist with contrary common law).
¶61 While section (1)(a) addresses the "defect" element
and replaces the common law "defect" test, section (1)(b)
codifies the "unreasonably dangerous" element of the claim and
remains consistent with the common law consumer contemplation
test. Under the consumer contemplation test, the "unreasonably
dangerous" element of a strict liability claim merely defines
what it means to be "unreasonably dangerous." Because the
legislature continued using the term "unreasonably dangerous"
without further definition or explanation, I conclude that the
common law continues to inform our understanding of that term in
this context.
III. Application of the Current Test
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No. 2020AP1124.jjk
¶62 Having parsed out the two elements of a design defect
strict liability claim at issue here, I now analyze whether
Murphy established issues of material fact on both of those
elements. I do so to further bolster and clarify the
majority/lead opinion's analysis. Like the majority/lead
opinion, I conclude Murphy has established issues of material
fact and his claims must survive summary judgment.
¶63 Under Wis. Stat. § 895.047(1)(a), the "defect"
element, Murphy is required to show that "the foreseeable risk
of harm posed by the product could have been reduced or avoided
by the adoption of a reasonable alternative design by the
manufacturer and the omission of the alternative design renders
the product not reasonably safe." To meet his burden, Murphy
asserts that the Hogg-Davis tongs are a reasonable alternative
design to the Dixie tongs. Murphy points to his expert witness,
who testified that the Hogg-Davis tongs have three features that
reduce the foreseeable risk that a pole will fall from the tongs
and cause injury. First, Murphy's expert testified that the
Hogg-Davis tongs have multiple teeth on each side of the device
which create redundancy in the clamping mechanism. Thus, if one
tooth slips out of a pole, the other teeth remain embedded. R.
154, pg 6. This redundancy is particularly important when
handling weathered and worn poles, which are more likely to slip
out of a tooth's grasp. Second, Murphy's expert also testified
that the Hogg-Davis tongs have superior clamping force. R. 116,
pg 25-28. Third, both Murphy's and CMC's expert discussed that
the Hogg-Davis tongs include a locking mechanism absent in Dixie
5
No. 2020AP1124.jjk
tongs that would keep the tongs from opening in the event a
tooth slips. R. 68, pg 19; R. 118, pg 17-20. According to
Murphy, these features reduce the foreseeable risk that a pole
will fall from the tongs, and the omission of these features
renders Dixie tongs not reasonably safe.
¶64 CMC disputes the claim that Hogg-Davis tongs have
superior clamping force and questions whether the multiple teeth
of the Hogg-Davis tongs or the inclusion of the locking
mechanism actually lead to a lower failure rate. These are
disputed issues of fact that preclude summary judgment on the
"defect" element.2
¶65 Under Wis. Stat. § 895.047(1)(b), the "unreasonably
dangerous" element, Murphy is required to show that "the
defective condition renders the product unreasonably dangerous
to persons or property." Murphy offers that lack of redundancy
makes the Dixie tongs too likely to fail, especially when
lifting old and weathered poles. Additionally, according to
Murphy, the inadequate clamping force of the Dixie style tongs
means the teeth are less likely to fully embed into poles and
may slip at high rates. Finally, Murphy argues that the absence
of the Hogg-Davis style locking mechanism allows Dixie tongs to
dangerously open and drop poles at higher rates than tongs that
include the additional locking mechanism. This is because the
2 The court of appeals in this case looked to the
Restatement (Third) of Torts comment (f) to apply the reasonable
alternative design portion of this test. While it is
unnecessary to adopt comment (f) in this case, I would not
foreclose the use of the Restatement's comments, including
comment (f), as persuasive in future cases.
6
No. 2020AP1124.jjk
only force holding Dixie tongs closed is the downward force of
the weight of the pole itself——if a tooth slips, the tongs open
and the pole drops. Murphy contends that these dangers are
beyond the scope of what an ordinary consumer would expect.
¶66 For a product to be unreasonably dangerous, it must be
"dangerous to an extent beyond that which would be contemplated
by the ordinary consumer who purchases it, with the ordinary
knowledge common to the community as to its characteristics."
Vincer, 69 Wis. 2d at 331 (quoting Restatement (Second) of Torts
§ 402A cmt. i). This is an objective test from the perspective
of a reasonable consumer of pole tongs, here, a utility worker.
¶67 Given the emphasis on safety procedures in occupations
like Murphy's, it can be assumed that a reasonable utility
worker expects a pole lift to be somewhat dangerous. Lift
failures must be anticipated on some level. However, it is
unclear whether a reasonable utility worker expects that these
failures stem only from user error or if utility workers
reasonably anticipate that the tongs' teeth may slip, even if
the tongs are placed and used correctly. The potential for grip
failure when tongs are used correctly may be beyond the scope of
what an ordinary utility worker would contemplate. CMC's own
expert appears to say that if tongs (of any style) are attached
correctly, they should not slip and drop a pole. See R. 118, pg
19.
¶68 Furthermore, a lift device could still be unreasonably
dangerous even though lift failures may not be entirely
avoidable. A lift device that fails at significantly higher
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No. 2020AP1124.jjk
rates than other devices may be dangerous beyond the level that
is contemplated by the consumer. It is not clear from the
record whether a reasonable utility worker would expect pole
tongs to fail more often when used on worn and weathered poles.
Yet there is evidence in the record from Murphy's expert that
pole tongs do, in fact, fail more often when they are used on
old and weathered poles. These implicate questions of fact for
a jury, and thus summary judgment cannot be granted on the
"unreasonably dangerous" element on this record.
¶69 Although it may be a close call, Murphy has introduced
evidence that consumers expect pole tongs to grip and hold a
pole if placed correctly and expect pole tongs to grip and hold
worn and weathered poles. There is no evidence in the record
from either side indicating exactly what a utility worker would
consider to be a reasonable lift failure rate, but Murphy
contends the failure rate is too high. In summary, a device
which fails at higher than usual rates or unexpectedly fails
under certain circumstances may still be dangerous beyond
consumer expectations. Here, Murphy has raised enough of an
issue to allow a jury to consider it.
¶70 As to the final three elements, CMC does not dispute
that Murphy has met the requirements under (1)(c) or (1)(d), so
it is unnecessary to analyze those elements further. I agree
with the majority/lead opinion's analysis of the (1)(e)
causation element and so do not reproduce that analysis here.
IV. Conclusion
8
No. 2020AP1124.jjk
¶71 In conclusion, Wis. Stat. § 895.047(1)(a) abrogates
the common law test for what makes a design "defective" in a
strict liability design defect claim, but (1)(b) retains the
common law consumer contemplation test for what makes a design
"unreasonably dangerous." Murphy has established a disputed
issue of material fact for both of those elements and thus the
claim must survive CMC's motion for summary judgment.
¶72 I am authorized to state that Justices ANN WALSH
BRADLEY and REBECCA FRANK DALLET join this concurrence.
9
No. 2020AP1124.bh
¶73 BRIAN HAGEDORN, J. (concurring in part, dissenting
in part). This case involves a negligence claim and a strict
liability claim against Columbus McKinnon Corporation (CMC)
alleging that CMC's Dixie tongs were defectively designed. A
majority of this court concludes CMC is not entitled to summary
judgment and sends both claims back to the circuit court. While
I agree that the negligence claim can proceed, I part ways with
respect to the strict liability claim. Reviewing the undisputed
material facts in this case, Matthew Murphy has failed to
present any evidence establishing that the Dixie tongs were
unreasonably dangerous under Wis. Stat. § 895.047(1)(b).
Therefore, I would grant CMC's motion for summary judgment on
the strict liability claim.
I. WISCONSIN STAT. § 895.047
¶74 In 2011, the legislature modified in part and codified
in part the common law elements of a strict liability claim
based on a design defect. See 2011 Wis. Act 2, § 31; Wis. Stat.
§ 895.047(1). Under the statute, a plaintiff must establish
each of the following:
(a) That the product is defective because it . . . is
defective in design . . . . A product is defective in
design if the foreseeable risks of harm posed by the
product could have been reduced or avoided by the
adoption of a reasonable alternative design by the
manufacturer and the omission of the alternative
design renders the product not reasonably safe. . . .
(b) That the defective condition rendered the product
unreasonably dangerous to persons or property.
(c) That the defective condition existed at the time
the product left the control of the manufacturer.
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No. 2020AP1124.bh
(d) That the product reached the user or consumer
without substantial change in the condition in which
it was sold.
(e) That the defective condition was a cause of the
claimant's damages.
§ 895.047(1).
¶75 As the majority/lead opinion notes, the backdrop to
this enactment was debate in this court over whether we should
jettison the consumer contemplation test adopted from the
Restatement (Second) of Torts and instead adopt the reasonable
alternative design test described in the Restatement (Third) of
Torts: Products Liability § 2.1 The legislature weighed in and
created a unique hybrid test via the enactment of Wis. Stat.
§ 895.047(1). This case focuses on the meaning and application
of the elements described in paragraphs (a) and (b).
¶76 Paragraph (a) requires two showings. First, a
plaintiff must prove "the foreseeable risks of harm posed by the
product could have been reduced or avoided by the adoption of a
reasonable alternative design by the manufacturer." Wis. Stat.
§ 895.047(1)(a). Second, a plaintiff must prove "the omission
of the alternative design renders the product not reasonably
safe." Id. The reasonable alternative design language is
copied nearly word for word from the Restatement (Third) of
1 See Green v. Smith & Nephew AHP, Inc., 2001 WI 109, ¶¶122-
34, 245 Wis. 2d 772, 629 N.W.2d 727 (Sykes, J., dissenting)
(advocating for adoption of Restatement (Third) of Torts:
Products Liability § 2 as a change from the court's current
common law test); Godoy ex rel. Gramling v. E.I. du Pont de
Nemours & Co., 2009 WI 78, ¶¶76-110, 319 Wis. 2d 91, 768
N.W.2d 674 (Prosser, J., concurring) (same); Horst v. Deere &
Co., 2009 WI 75, ¶¶87-104, 319 Wis. 2d 147, 769 N.W.2d 536(Gableman, J., concurring) (same).
2
No. 2020AP1124.bh
Torts: Products Liability § 2(b).2 This was, quite consciously,
a legislative policy decision to depart from the consumer
contemplation test this court borrowed from the Restatement
(Second) of Torts and embrace the reasonable alternative design
test from the Restatement (Third) of Torts——at least in part.
The parties debate whether we should adopt particular comments
from the Restatement (Third) of Torts to further clarify the
meaning of the reasonable alternative design test——comment f in
particular. But the legislature did not explicitly incorporate
any particular comments, and we need not do so in order to
decide this case.3
¶77 The legislature also created Wis. Stat.
§ 895.047(1)(b), which requires proof that "the defective
condition rendered the product unreasonably dangerous to persons
or property." This is a separate condition, and it contains no
2The Restatement (Third) of Torts: Products Liability
§ 2(b) provides:
A product . . . is defective in design when the
foreseeable risks of harm posed by the product could
have been reduced or avoided by the adoption of a
reasonable alternative design by the seller or other
distributor, or a predecessor in the commercial chain
of distribution, and the omission of the alternative
design renders the product not reasonably safe . . . .
The only difference between the two is that the Restatement
(Third) focuses on the seller or distributor of the product and
Wis. Stat. § 895.047(1)(a) focuses on the manufacturer. The
legislature chose to address the liability of sellers and
distributers in subsec. (2) of § 895.047 by referencing to the
same standards for manufacturer liability in subsec. (1).
3These comments may very well prove persuasive and useful
when applying the reasonable alternative design test. We simply
leave those questions for another day.
3
No. 2020AP1124.bh
reference, direct or indirect, to the Restatement (Third) of
Torts or any other test. This element was not created out of
thin air, however. Under our cases, a strict liability design
defect claim required this very thing: proof that the product
was unreasonably dangerous. And the test under our common law
was the consumer-contemplation test. See Vincer v. Esther
Williams All-Aluminum Swimming Pool Co., 69 Wis. 2d 326, 332,
230 N.W.2d 794 (1975) (adopting the consumer contemplation test
to determine if a product was unreasonably dangerous). Without
any textual evidence of a departure from the common law, this
statutory addition is best read as codifying the common law test
to determine whether a product is unreasonably dangerous.4
¶78 Finally, of particular relevance in this case, the
legislature's modifications to the test for strict liability
explicitly exempted application to negligence claims. See Wis.
Stat. § 895.047(6) ("This section does not apply to actions
based on a claim of negligence or breach of warranty.").
Therefore, the ordinary principles of common law negligence
remain unaltered by these legislative changes.
II. APPLICATION
¶79 Murphy advances two claims against CMC for its
allegedly defective design of Dixie tongs: negligence and
4Another tricky question we leave for another day concerns
the proper test for determining whether "the omission of the
alternative design renders the product not reasonably safe"
under Wis. Stat. § 895.047(1)(a), and to what degree daylight
exists between a product that is "not reasonably safe" under
para. (a) and "unreasonably dangerous" under para.(b).
4
No. 2020AP1124.bh
strict liability. With respect to Murphy's negligence claim,
CMC does not develop separate arguments based on traditional
negligence principles. Therefore, its summary judgment motion
on the negligence claim fails. But CMC does maintain that
Murphy has presented insufficient evidence on his strict
liability claim to survive summary judgment. To that, I now
turn.
¶80 The parties in this case focused largely on the proper
law we should apply, and in that vein, the briefs gave most of
their attention to the reasonable alternative design requirement
in Wis. Stat. § 895.047(1)(a). However, after reviewing the
record, I conclude that Murphy has failed to marshal any
evidence that the Dixie tongs are unreasonably dangerous under
Wis. Stat. § 895.047(1)(b). For that reason, CMC is entitled to
summary judgment on its strict liability claim.5
¶81 Once again, to determine if a product is unreasonably
dangerous under Wis. Stat. § 895.047(1)(b), we look to the
common law consumer contemplation test. We have described that
test as follows:
[W]hether a product contains an unreasonably dangerous
defect depends upon the reasonable expectations of the
ordinary consumer concerning the characteristics of
this type of product. If the average consumer would
reasonably anticipate the dangerous condition of the
product and fully appreciate the attendant risk of
injury, it would not be unreasonably dangerous and
5"Summary judgment is appropriate when there is no genuine
issue of material fact and 'the moving party is entitled to
judgment as a matter of law.'" Quick Charge Kiosk LLC v. Kaul,
2020 WI 54, ¶9, 392 Wis. 2d 35, 944 N.W.2d 598 (quoting Wis.
Stat. § 802.08(2)).
5
No. 2020AP1124.bh
defective. This is an objective test and is not
dependent upon the knowledge of the particular injured
consumer, although his knowledge may be evidence of
contributory negligence under the circumstances.
Vincer, 69 Wis. 2d at 332.
¶82 This framework calls attention to the end-user of the
product. The product in this case is not designed for
homeowners building a backyard shed or children tinkering with
Tonka trucks. The Dixie tongs at issue here are designed to
lift and move poles weighing up to 2,500 pounds in highly
specialized construction work. This is no average consumer
product. The consumer contemplation test in this case therefore
must focus on the objective awareness and knowledge of the
specially trained workers who use this product. See id. at 331("The article sold must be dangerous to an extent beyond that
which would be contemplated by the ordinary consumer who
purchases it, with the ordinary knowledge common to the
community as to its characteristics." (quoting Restatement
(Second) of Torts, § 402A cmt. i)).6 The question, therefore, is
what a specialist like Murphy would reasonably understand
concerning the danger of using this product. No one doubts that
lifting and moving massive poles is fraught with danger. But
the risk of danger or even death does not mean that a product is
unreasonably dangerous to the end-user. If mere danger
sufficed, every chainsaw, extension ladder, and construction
Accord Kaiser v. Johnson & Johnson, 947 F.3d 996, 1002,
6
1014 (7th Cir. 2020) (noting that for purposes of determining if
a transvaginal mesh medical device is unreasonably dangerous
under Indiana law "the relevant consumers here are pelvic-floor
surgeons").
6
No. 2020AP1124.bh
vehicle would qualify. That is not the law. The test requires
that we ask whether the end-user of the product would
"reasonably anticipate the dangerous condition of the product
and fully appreciate the attendant risk of injury." Id. at 332.
If so, even a dangerous product is not unreasonably dangerous
under our common law, and by extension, under Wis. Stat.
§ 895.047(1)(b).
¶83 So we turn to the evidence offered to see whether
there is any evidence from which a jury could find the Dixie
tongs are unreasonably dangerous based on the expectations of
the someone like Murphy——a line technician who is trained to use
these types of pole-lifting products. Murphy argues that the
Dixie tongs are unreasonably dangerous because the tongs only
have two points of contact and therefore do not have a
redundancy. Murphy also notes that CMC knew: (1) the Dixie
tongs were used to lift poles; (2) the attendant danger that a
dropped pole could kill or injure someone; and (3) that workers
guide poles with one hand while using the Dixie tongs. Murphy's
expert, John DeRosia, stated in his report,
If a single failure occurs, i.e., the grip of a tooth
on one side of the tongs, the tongs will no longer
grasp the pole which will fall with potentially
dangerous consequences. Other than the engagement of
the teeth the tongs do not have a mechanism to capture
the pole.[7]
CMC asks us to disregard DeRosia's expert testimony as
7
untested speculation. This is, in effect, a request for the
court to rule on its Daubert motion that remains pending before
the circuit court. See Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579 (1993). I agree with the majority/lead opinion that we
should not address this issue because it is not properly before
us.
7
No. 2020AP1124.bh
DeRosia continued that this "problem is exacerbated with wooden
poles that are weathered" and that in order to manipulate the
pole while lifting it, the "worker is in close proximity to the
pole."
¶84 This evidence, if proven, may demonstrate that the
Dixie tongs could have perilous consequences should something go
wrong or that the design could have been improved. But it is
insufficient to demonstrate that the Dixie tongs are
unreasonably dangerous based on the expectations and dangers the
end-user would reasonably expect. Notably, none of this
evidence addresses the expectations of line technicians like
Murphy who use the Dixie tongs. The average user of Dixie tongs
would undoubtedly appreciate the inherent danger posed by their
use. As DeRosia notes, Dixie tongs are advertised for overhead
lifting of logs and poles. The summary judgment record reflects
that Murphy received extensive safety training on how to
properly use Dixie tongs; the danger of error would not be lost
on him or others using the product. The record further reflects
that CMC is not aware of anyone else who has been injured while
using Dixie tongs. It is not investigating any alleged
incidents nor are there any other lawsuits relating to Dixie
tongs. During his deposition, DeRosia also testified that he
had not investigated a single prior incident where someone was
injured while using the Dixie tongs. In short, while Murphy
introduced evidence of the inherent risk of danger, he produced
nothing from which a reasonable juror could conclude that Dixie
8
No. 2020AP1124.bh
tongs are unreasonably dangerous based on the objective and
known risks to someone who uses them.
¶85 The majority/lead opinion disagrees. It states that
because "Murphy was not lifting a load beyond the tongs' rated
maximum, and that the tongs are advertised for lifting poles,
and certified for overhead lifting, he provided evidence that an
ordinary consumer would not anticipate anything more than the
inherent dangers of working with a heavy, suspended load."
Majority op., ¶46. This argument is difficult to follow. It
does not say anything about what an ordinary user of the product
would reasonably anticipate other than that the product contains
inherent dangers. But as already explained, that's not the test
under Wis. Stat. § 895.047(1)(b).
¶86 The concurrence reaches the same conclusion but for
different reasons. It relies on the absence of evidence to
conclude summary judgment is improper. For example, the
concurrence points to the fact that the record is unclear with
respect to "whether a reasonable utility worker would expect
pole tongs to fail more often when used on worn and weathered
poles." Concurrence, ¶68. And it relies on the fact that there
is no evidence "indicating exactly what a utility worker would
consider to be a reasonable lift failure rate." Id., ¶69. But
on summary judgment, Murphy must offer some evidentiary basis to
counter the undisputed evidence that Dixie tongs are not
unreasonably dangerous. The fact that Murphy has failed to do
so is precisely why CMC's motion for summary judgment should be
granted.
9
No. 2020AP1124.bh
III. CONCLUSION
¶87 In order to prevail on his strict liability claim,
Murphy must establish all of the requirements of Wis. Stat.
§ 895.047(1). The undisputed material facts in the record show
that the Dixie tongs are not unreasonably dangerous as a matter
of law under § 895.047(1)(b). Accordingly, summary judgment
should be granted to CMC on Murphy's strict liability claim. I
respectfully dissent from the court's resolution of the strict
liability claim, but concur with its conclusion on Murphy's
negligence claim.
¶88 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER and Justice REBECCA GRASSL BRADLEY join this
concurrence/dissent.
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No. 2020AP1124.bh
1