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Wisconsin Supreme Court Signals Changes in Product Liability

Product Liability Update Jeffrey K. Spoerk, Lars E. Gulbrandsen

The Wisconsin Supreme Court recently issued two decisions that define key principles governing product liability in Wisconsin and represent important victories for Quarles & Brady Product Liability Group's clients in those cases. The two opinions also signal a dramatic future change in the law. First, the Court confirmed that a product is not defectively designed if it contains some dangerous condition that is inherent to the product, such as a knife that is sharp. Second, the Court ruled that whether or not a product is defective is determined by the reasonable expectations of a consumer or user of the product, not the expectations of a bystander who is not using the product. Finally, a majority of the Justices signaled in concurring opinions that they are ready to abandon the consumer expectation test altogether and adopt the risk/utility test set forth in the Restatement (Third) of Torts. The Quarles & Brady Product Liability Group has tried numerous cases in other jurisdictions that rely upon the risk/utility test; whether or not that test is more advantageous for manufacturers depends upon the circumstances of the case.

In Godoy v. Du Pont, et al., 2009 WI 78, the plaintiff alleged that he had been injured by ingesting white lead carbonate pigment contained in residential paint. The plaintiff claimed the product, white lead carbonate pigment, was defectively designed because it contained lead. In a unanimous decision, the Court affirmed the trial court's dismissal of this design defect claim. The Court observed that the presence of lead is an inherent characteristic of white lead carbonate pigment. Just as a knife cannot be considered defective because it is sharp, and aluminum foil cannot be defective for containing aluminum, so white lead carbonate is not defectively "designed" because it contains lead. This apparent common-sense proposition should have broad applicability to any product where the condition that makes a product dangerous is an inherent characteristic of the product.

In Horst v. Deere & Company, 2009 WI 75, which was tried to a defense verdict and then successfully argued by Quarles & Brady, the Court affirmed that for now the consumer contemplation test is the sole test in Wisconsin for determining whether a product is defective. Plaintiffs sued Deere & Company for damages resulting from an accident involving a riding lawn mower. Two-year-old Jonathon Horst was injured when his father ran over him while mowing in reverse, severing both of his feet. Plaintiffs alleged that the lawn mower was defectively designed because it allowed the operator to travel in reverse with the mower deck engaged, i.e., with the blades turning. At trial, the jury found that the lawn mower was not defective, applying Wisconsin's consumer contemplation test, which is based on the Restatement (Second) of Torts s. 402A. Under that test, a product is defective "when it is in a condition not contemplated by the ordinary user or consumer, which is unusually dangerous to the ordinary user or consumer . . . " WI JI CIVIL 3260.

On appeal, plaintiffs argued that the consumer contemplation test is not the law in Wisconsin when a bystander is injured by a product that presents a unique risk of injury to a bystander. Plaintiffs argued that Wisconsin should adopt a "bystander contemplation test," which would require the jury to consider whether a product is unreasonably dangerous based on the contemplation of an ordinary bystander. In a four-to-two split decision, the Court rejected the plaintiffs' argument, holding that the consumer contemplation test is the proper test for all strict liability claims in Wisconsin, even in cases in which a bystander is injured. The Court noted that bystanders can still recover under Wisconsin strict liability law.

While the Court's ultimate decision unequivocally rejected the call to change the status quo in Wisconsin product liability law, the concurrence authored by Justice Gabelman, when taken with Justice Prosser's concurrence in Godoy, portends a dramatic shift in the basic standard for determining whether a product is defectively designed under Wisconsin law. When Wisconsin adopted strict liability for defective products 42 years ago, it embraced the consumer contemplation test. The concurring opinions point out that Wisconsin is one of the relatively few states that still employs the consumer contemplation test. Instead, most states now evaluate allegedly defective products using the risk/utility test. That test is set forth in the Restatement (Third) of Torts ยง 2(b).

Justice Ziegler joined the concurring opinion in Godoy, and Justice Roggensack joined the concurrence in Horst. Thus, it is clear that a majority (four of seven) justices favor adoption of the risk/utility test. However, because Justice Ziegler recused in Horst (because she had been the trial judge whose jury instructions were at issue), and Justice Roggensack recused in Godoy, the concurring opinions in the two cases each comprised only three justices. Accordingly, neither concurrence was supported by a majority of the Court, so neither concurrence could effect a change in the law . . . yet.

The risk/utility test will change the outcome in some product liability cases. As the name suggests, the risk/utility test requires a jury to weigh the utility of a product against the risk of injury that the product's design creates. As part of this analysis, a product is defective if it presents a foreseeable risk of harm that could have been avoided with a reasonable alternative design. This test may help manufacturers in cases where the product is a useful product and there is no feasible way to reduce the risk of injury. On the other hand, under the consumer contemplation test, the jury could find that the product is defective if it concludes that consumers expected the product to be accident-proof.

The risk/utility test may present a disadvantage to manufacturers in other cases, particularly where the product user does something obviously careless. The proverbial lawnmower-as-hedge-trimmer example illustrates this point. Under the consumer contemplation test, the jury should conclude that no reasonable consumer would expect the lawnmower to prevent injury if the consumer uses it as a hedge trimmer. However, if a cheap and feasible shutoff switch would have prevented the accident, under the risk/utility test the jury may find liability (albeit limited by the consumer's comparative negligence). On a similar note, abandonment of the consumer contemplation test probably would eliminate the open and obvious hazard defense, which has barred liability in certain cases where a consumer proceeds in the face of an open and obvious hazard.

There are many other differences between the consumer contemplation test and the risk/utility test, such as the relevance of foreseeability. Suffice to say, it appears from Godoy and Horst that change is coming to the law of product liability in Wisconsin.

If you have questions about these Wisconsin Supreme Court decisions or product liability matters in general, contact Jeff Spoerk at 414-277-5337 or e-mail at, Lars Gulbrandsen at 414-277-5137 or e-mail at or your Quarles & Brady attorney.