consumer contemplation test in Wisconsin

2022We 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

2022We 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

2022We 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.

2022We 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.

2022As 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.

2022We 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

2022Gramling 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.

2022Gramling 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.

2022Gramling 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.

2022Gramling 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.

2022See 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."). 12 No. 2020AP1124 ¶20 In Vincer, we clarified that the appropriate test to empl

2022See 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."). 12 No. 2020AP1124 ¶20 In Vincer, we clarified that the appropriate test to empl

2009Power Co., 176 Wis.2d 740, 792 , 501 N.W.2d 788 (1993)). ¶ 41 The term "defect" is not susceptible to any general definition.

2009Power Co., 176 Wis.2d 740, 792 , 501 N.W.2d 788 (1993)). ¶ 41 The term "defect" is not susceptible to any general definition.

2022See e.g., Dippel, 37 Wis. 2d 443 ; Vincer, 69 Wis. 2d 326 ; Green, 245 Wis. 2d 772 .

2022Lastly, 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)

2022See 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."). 12 No. 2020AP1124 ¶20 In Vincer, we clarified that the appropriate test to empl

2022See 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."). 12 No. 2020AP1124 ¶20 In Vincer, we clarified that the appropriate test to empl

2021Ltd., 652 N.W.2d 159, 168 (Iowa 2002) (quoting 2 Dan B.

2009Alaska: Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 878 (1979).

2009See Green v. Smith & Nephew AHP, Inc., 2001 WI 109 , 245 Wis.2d 772 , 629 N.W.2d 727 . [3] Specifically, the consumer contemplation test asks whether the product in question, when it left the manufacturer, was in a condition not contemplated by the ordinary consumer, Restatement (Second) of Torts § 402A cmt. g. (1965), and whether the product was "dangerous to an extent beyond that which would be contemplated by the ordinary consumer," id. at cmt. i. [4] A similar argument can be made for failure to warn claims. [5] Alaska: Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 878 (1979).

2009App. 1995) (in a case involving a child who suffered injuries after lighting his pajamas on fire when playing with a lighter, the question of whether the lighter was unreasonably dangerous is determined by the perspective of the ordinary adult consumer, not the perspective of the minor child) Bellotte v. Zayre Corp., 116 N.H. 52 , 352 A.2d 723, 725-26 (1976) (in a certified question from the First Circuit Court of Appeals involving a five-year-old whose pajamas were set on fire when playing with matches, the New Hampshire Supreme Court stated that the question of whether the pajamas were unrea

2009App. 1995) (in a case involving a child who suffered injuries after lighting his pajamas on fire when playing with a lighter, the question of whether the lighter was unreasonably dangerous is determined by the perspective of the ordinary adult consumer, not the perspective of the minor child) Bellotte v. Zayre Corp., 116 N.H. 52 , 352 A.2d 723, 725-26 (1976) (in a certified question from the First Circuit Court of Appeals involving a five-year-old whose pajamas were set on fire when playing with matches, the New Hampshire Supreme Court stated that the question of whether the pajamas were unrea

2009See id. cmt. j (warnings are not required "when the danger, or potentiality of danger, is generally known and recognized"); Tanner v. Shoupe, 228 Wis. 2d 357, 367 , 596 N.W.2d 805 (Ct. App. 1999) ("In order for a defective design to render a product unreasonably dangerous, the defect must be hidden from the ordinary consumer, that is, not an open and obvious defect.").

2009See id. cmt. j (warnings are not required "when the danger, or potentiality of danger, is generally known and recognized"); Tanner v. Shoupe, 228 Wis. 2d 357, 367 , 596 N.W.2d 805 (Ct. App. 1999) ("In order for a defective design to render a product unreasonably dangerous, the defect must be hidden from the ordinary consumer, that is, not an open and obvious defect.").

2001See Morden v. Continental AG, 2000 WI 51, ¶ 46 , 235 Wis. 2d 325 , 611 N.W.2d 659 (explaining that under Wisconsin law, foreseeability of the risk of harm is an element of negligence, not strict products liability); Meyer v. Val-Lo-Will Farms, Inc., 14 Wis. 2d 616, 622 , 111 N.W.2d 500 (1961) (explaining that negligence claims require a risk-benefit analysis).

2001See Morden v. Continental AG, 2000 WI 51, ¶ 46 , 235 Wis. 2d 325 , 611 N.W.2d 659 (explaining that under Wisconsin law, foreseeability of the risk of harm is an element of negligence, not strict products liability); Meyer v. Val-Lo-Will Farms, Inc., 14 Wis. 2d 616, 622 , 111 N.W.2d 500 (1961) (explaining that negligence claims require a risk-benefit analysis).

2001In Sumnicht , this court adhered to the consumer contemplation test for use in design defect cases, but also outlined a list of factors to assist in the determination of dangerous defectiveness: The relevant factors are: "(1) [Cjonformity 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 harm

2001In Sumnicht , this court adhered to the consumer contemplation test for use in design defect cases, but also outlined a list of factors to assist in the determination of dangerous defectiveness: The relevant factors 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 har

2001See Morden v. Continental AG, 2000 WI 51, ¶ 46 , 235 Wis. 2d 325 , 611 N.W.2d 659 (explaining that under Wisconsin law, foreseeability of the risk of harm is an element of negligence, not strict products liability); Meyer v. Val-Lo-Will Farms, Inc., 14 Wis. 2d 616, 622 , 111 N.W.2d 500 (1961) (explaining that negligence claims require a risk-benefit analysis).

2001See Morden v. Continental AG, 2000 WI 51 , ś 46, 235 Wis. 2d 325 , 611 N.W.2d 659 (explaining that under Wisconsin law, foreseeability of the risk of harm is an element of negligence, not strict products liability); Meyer v. Val-Lo-Will Farms, Inc., 14 Wis. 2d 616, 622 , 111 N.W.2d 500 (1961) (explaining that negligence claims require a risk-benefit analysis).

2001Smith's Sons Co., 87 Wis. 2d 882, 893 , 275 N.W.2d 915 (1979) (noting the Vincer court's adoption of Comments g and i); accord Netzel v. State Sand & Gravel Co., 51 Wis. 2d 1, 10-11 , 186 N.W.2d 258 (1971) (approving a jury instruction based on the consumer-contemplation standard). ¶ 30.

2001Smith's Sons Co., 87 Wis. 2d 882, 893 , 275 N.W.2d 915 (1979) (noting the Vincer court's adoption of Comments g and i); accord Netzel v. State Sand & Gravel Co., 51 Wis. 2d 1, 10-11 , 186 N.W.2d 258 (1971) (approving a jury instruction based on the consumer-contemplation standard). ¶ 30.