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Products Liability Law
2. All the justices agreed that in order to prove a design defect, the statute requires plaintiffs to demonstrate a reasonable alternative design, the omission of which renders the product at issue “not reasonably safe.” All the justices also declined to adopt any specific test from the Restatement (Third) (particularly comment f.). Only the three dissenting justices explicitly acknowledged the legislature’s conscious policy decision not only to depart from the consumer-contemplation test for this element, but to embrace the reasonable-alternative-design test for defectiveness from the Restatement (Third)—“at least in part.” Further, six justices (the three concurring and three dissenting) noted that while the legislature did not incorporate any comments from the Restatement (Third) and the Court did not need to do so to resolve this case, the comments may prove persuasive and useful in applying this test in future cases.
3. Based on Wis. Stat. § 895.047(6)’s express disclaimer of the statute’s application to “actions based on a claim of negligence or breach of warranty,” all of the justices rejected the defendant’s argument that section 895.047 effectively eliminated common law claims for negligent design.
The key takeaway from the Murphy decision is that the consumer-contemplation test remains alive and well for strict liability design defect claims in Wisconsin (at least with respect to the inquiry as to whether a product is unreasonably dangerous) and common law precedents will continue to guide Wisconsin courts in determining whether that standard is met. As demonstrated by the dissent in Murphy, different judges will approach the consumer-contemplation test from different perspectives, with varying interpretations of what an “ordinary consumer” looks like in a particular context.
This decision is particularly notable given the history of products liability law in Wisconsin. In multiple decisions spanning more than a decade, the Supreme Court rejected requests to discard the consumer- contemplation test from the Restatement (Second) in favor of the risk-benefit test under the Restatement (Third). Many viewed the 2011 enactment of section 895.047 as the legislature stepping in to put the issue to rest by statutorily establishing the Restatement (Third) standard as Wisconsin law. But, with Murphy, the Supreme Court has unanimously interpreted the statute as a hybrid of standards from both Restatements, resurrecting the consumer-contemplation test once again.
Thus, the fight continues. Your move, legislature.
Richard T. Orton is an FDCC Defense Counsel member and the managing partner of Gass Turek LLC in Milwaukee, WI. Contact him at: orton@gassturek.com. Aaron R. Wegrzyn is a litigator with the firm. Contact him at: wegrzyn@gassturek.com.
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FDCC ANNUAL INSIGHTS 2023