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Products Liability Law
Contrary to Popular Belief, the Consumer-Contemplation Test Still Applies to Wisconsin Design
By Richard T. Orton and Aaron R. Wegrzyn
Defect Claims
The Wisconsin Supreme Court closed out 2022 with a question of first impression— how to interpret Wisconsin’s products liability statute enacted in 2011, Wis. Stat. § 895.047. The most notable aspect of the court’s decision in Murphy v. Columbus McKinnon Corporation, 405 Wis. 2d 157, 982 N.W.2d 898 (2022), is its conclusion that the state legislature “created a unique, hybrid products liability claim” that incorporates elements from Section 2 of the Restatement (Third) of Torts as well as from Wisconsin’s common law precedents founded in Section 402A of the Restatement (Second) of Torts.
    The case arose out of an accident involving the transportation of old electrical line poles. The plaintiff, a utility company technician, used a truck-mounted boom equipped with specialty “Dixie” tongs to hoist downed poles onto a truck bed. As the plaintiff moved one of these poles, the tongs lost their grip and the pole fell onto the plaintiff, causing severe injuries. He brought both a strict product liability design defect and common law negligent design claim against the manufacturer of the Dixie tongs. The trial court granted the defendant summary judgment on both claims, which the intermediate court of appeals reversed.
 Richard T. Orton
 Although the Wisconsin Supreme Court issued a splintered decision, with majority, concurring, and dissenting opinions, the justices agreed on several key points:
 1. Despite section 895.047(1)’s inclusion of language taken directly from the Restatement (Third), each justice agreed that the statute did not entirely abolish the consumer-contemplation test recognized under Wisconsin common law (and derived from the Restatement (Second)). Only one justice— who happened to author the majority opinion—indicated that the pre-statute common law (presumably including the consumer-contemplation test) could continue to provide persuasive authority for both the defect and unreasonably dangerous elements of a design defect claim under the statute. The remaining six justices took the position that the consumer-contemplation test now only applies to the unreasonably dangerous element (but they disagreed as to whether the test had been satisfied in the case presented).
 Aaron R. Wegrzyn

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