Main Page Not logged inLogin

For questions, changes or clarifications regarding the Product Liability, please contact

Last Reviewed / Modified On 23 Feb 2016.


Defect in Design – the feasibility of alternative designs and consumer expectations

Wisconsin applies the consumer contemplation test to determine whether a product is defective under strict liability. Godoy ex rel. Gramling v. E.I. DuPont de Nemours & Co., 2009 WI 78, ¶ 39, 319 Wis. 2d 91, 768 N.W.2d 674. "Defective," for purposes of the consumer contemplation test, means that the product is in a condition not contemplated by the ultimate consumer and unreasonably dangerous to that consumer. Godoy, 2009 WI 78, 40. Determination of a "defect" is done on a case by case basis relying on the ultimate consumers' expectations. Godoy, 2009 WI 78, 40.

A product has a design defect when the design itself is a cause of the unreasonable danger. Godoy, 2009 WI 78, ¶ 29. A product is defective in design if the foreseeable risks of harm that the product poses could have been decreased or prevented if a reasonable alternative design had been used by the manufacturer, and the failure to adopt this alternative design made the product not reasonably safe. Wis. Stat. § 895.047(1)(a); Gorton v. Am. Cyanamid Co., 194 Wis. 2d 203, 221-22, 533 N.W.2d 746 (1995). The feasibility of an alternative design can be considered when evaluating a design defect claim, but it is not a requirement. Godoy, 2009 WI 78, 4. A product may be defective and unreasonably dangerous even though there are no alternative, safer designs available. Godoy, WI 78, 43.

Where the alleged defect in the product's design is the presence of one of its ingredients, and that ingredient's very presence is a characteristic of the product itself, a defective design claim cannot be maintained. Godoy, 2009 WI 78, 33-34. Dismissal is required if the injury was caused by "an inherent characteristic of the product" that would be recognized by an ordinary person who uses the product. Wis. Stat. § 895.047(3)(d). The law recognizes that some ingredients cannot be eliminated from a design without eliminating the product itself. When the ingredient cannot be designed out of the product, other claims may be asserted, but a design defect claim is not one of them. Godoy, 2009 WI 78, 45.

Misuse of Products

A manufacturer has a duty to foresee all reasonable uses and misuses and the resulting foreseeable dangers. Tanner v. Shoupe, 228 Wis. 2d 357, 368, 596 N.W.2d 805 (Ct. App. 1999); Schuh v. Fox River Tractor Co., 63 Wis. 2d 728, 742-43, 218 N.W.2d 279 (1974). The duty to warn arises when the manufacturer has, or should have, knowledge of a dangerous use. Tanner, 228 Wis. 2d at 368.

A defense to a claim of strict product liability is that the product was not being "reasonably used for the purpose for which it was intended." Dippel v. Sciano, 37 Wis.2d 443, 460, 155 N.W.2d 55 (1967); see also WIS JI-CIVIL 3260.1 (manufacturer of an unreasonably dangerous product "is regarded by law as responsible for harm caused by the product ... provided the product was being used for the purpose for which it was designed and intended to be used."). Accordingly, the defense of contributory negligence is available under Wisconsin strict liability law. Green v. Smith & Nephew AHP, Inc., 2001 WI 109, 57, 245 Wis. 2d 772, 629 N.W.2d 727. A consumer may be found to be contributorily negligent if he sustains injuries from a product while abusing or misusing, or after altering the product. Dippel, 37 Wis. 2d at 460. Thus, while "foreseeable risk of harm" is not an element required to satisfy a strict liability claim in Wisconsin, "foreseeable use" is a concept nonetheless at issue in many strict liability cases. Green, 2001 WI 109, 60.

Unanticipated, Unforeseeable, or Unintended Use of Products

Though a defendant is required to foresee potential uses of the product, a defendant will not be found liable for injuries resulting from the abnormal or unintended use of the product, if such use was not reasonably foreseeable. Schuh, 63 Wis. 2d at 742-43. A defendant must anticipate the environment which is normal for the use of the product and the reasonably foreseeable risks of the product in that environment. Schuh, 63 Wis. 2d at 741. A plaintiff has a duty of ordinary care to protect himself from known or readily apparent danger, and he must therefore use a product for the purpose for which it was intended. Dippel, 37 Wis. 2d at 460. A defendant has the duty to warn of dangers inherent in the use not intended by the defendant if such unintended use was reasonably foreseeable by the defendant. WI JI-CIVIL 3260.1.

Alteration of Products

In order to maintain a strict products liability claim the plaintiff must show that the product has not undergone a substantial and material change from the time it left the manufacturer or seller. Wis. Stat. § 895.047(1)(d); Glassey v. Continental Ins. Co., 176 Wis. 2d 587, 599, 500 N.W.2d 295 (1993); Westphal v. E.I. du Pont de Nemours, 192 Wis. 2d 347, 360, 531 N.W.2d 386 (Ct. App. 1995). When the condition of the product at the time of an accident is substantially and materially different from its condition at the time it left the control of the manufacturer or seller, the plaintiff will be unable to prove a prima facie case and the strict products liability claim must be dismissed. Glassey, 176 Wis. 2d at 599; Westphal, 192 Wis. 2d at 360. A substantial and material change is a change in the design, function or character of the product linked to the accident." Glassey, 176 Wis. 2d at 600.

The substantial change must be one that could not reasonably be foreseen or expected. Schuh, 63 Wis. 2d at 742; Dippel, 37 Wis. 2d at 460.

When a component part is subject to a manufacturing process that changes its physical properties, the component has undergone a substantial change as a matter of law. Westphal, 192 Wis. 2d at 362. The component "need not be completely obliterated or undergo a chemical transformation to be substantially changed"; rather, the question is whether the component has been combined with another or treated in such a manner that renders it substantially and materially different from its condition when it left the control of the manufacturer. Westphal, 192 Wis. 2d at 363, citing Glassey, 176 Wis. 2d at 600.

Unavoidably Unsafe Products

Comment k to Section 402A of the Restatement (Second) of Torts precludes the imposition of strict liability on sellers of "unavoidably unsafe" products. Wisconsin has not adopted this particular rule because it has been deemed "too restrictive" and not in line with the strict products liability law in Wisconsin. Collins v. Eli Lilly Co., 116 Wis. 2d 166, 196-97, 342 N.W.2d 37, 51-52 (1984). Thus, sellers of inherently dangerous products may be found strictly liable for injuries resulting from the products. Collins v. Eli Lill y Co., 116 Wis. 2d 166, 196-97, 342 N.W.2d 37, 51-52 (1984).

Duty to Warn - Dangerous or Obviously Unsafe Conditions

Defendants have a duty to warn potential users of any defects or "inherent conditions that make the products unreasonably dangerous." Flaminio v. Honda Motor Co., 733 F. 2d 463, 466 (7th Cir. 1984). A manufacturer risks strict liability for failure to warn if the defendant could "foresee that the product would be unreasonably dangerous unless there was a warning." Flaminio, 733 F. 2d at 466. Even if the product is designed or manufactured as safely as possible, however, the manufacturer must warn consumers of any hidden dangers associated with the product. Tanner v. Shoupe, 228 Wis. 2d 357, 367, 596 N.W.2d 805 (Ct. App. 1999).

The warning must be "adequate and appropriate under the circumstances" in which the consumer uses the product. Tanner, 228 Wis. 2d at 367. A defendant must anticipate how and in what environment consumers will typically use the product. Tanner, 228 Wis. 2d at 367; see Anderson v. Alfa-Laval Agri, Inc., 209 Wis. 2d 337, 353, 564 N.W.2d 788 (Ct. App. 1997). The defendant has the duty to foresee all reasonable uses and misuses and the resulting foreseeable dangers" associated with its product. Tanner, 228 Wis. 2d at 368. To recover damages, however, the plaintiff must also prove that the manufacturers' negligent failure to warn caused his or her injuries. Anderson, 209 Wis. 2d at 353-54.

Courts strictly construe the distributors' or manufacturers' duty to warn; a general warning is not necessarily adequate to warn of a specific danger. Tanner, 228 Wis. 2d at 377-78. Further, a plaintiff may still proceed in his failure to warn claim even if he does not read the manufacturer's warning accompanying the product. Tanner, 228 Wis. 2d at 380-81. The adequacy of warnings is determined by reference to the effect on a reasonable person, regardless of whether the actual consumer reads the warnings. Tanner, 228 Wis. 2d at 380-81.

A defendant may raise the "open and obvious danger" defense in both negligence and strict liability claims. Griebler v. Doughboy Recreational, Inc., 160 Wis. 2d 547, 560, 466 N.W.2d 897 (1991). Under this defense, "where, based on the undisputed facts, the dangerous condition of a chattel is open and obvious to the reasonable user, no warning is required . . . and summary judgment dismissing a negligence claim premised on failure to warn is proper." Pagel v. Marcus Corp., 2008 WI App 110, ¶ 19, 313 Wis. 2d 78, 756 N.W.2d 447.

Similarly, the sophisticated user defense provides that there is '"no duty to warn if the user knows or should know of the potential danger, especially when the user is a professional who should be aware of the characteristics of the product."' Haase v. Badger Mining Corp., 2003 WI App 192, 19, 266 Wis. 2d 970, 669 N.W.2d 737 (quoting Bergfeld v. Unimin Corp., 319 F. 3d 350, 353 (8th Cir. 2003)), aff’d 2004 WI 97, 274 Wis. 2d 143, 682 N.W.2d 389.

State of the Art Defenses

Courts have accepted evidence that the defendant-manufacturer has conformed to accepted industry-wide standards. See Wisconsin Elect. Power Co. v. Zallea Bros., Inc., 606 F. 2d 697, 703 (7th Cir. 1979) ("[E]vidence of industry practice is admissible in Wisconsin at the trial court's discretion."). By analyzing industry-wide practices, the jury can determine whether the manufacturer could have implemented an alternative design or strategy to make the product safer. See Morden v. Continental AG, 2000 WI 51, ¶¶ 56-7, 235 Wis. 2d 325, 11N.W.2d 659. In other words, "evidence 'of the custom of the industry (what the industry was doing) and the state of the art (what the industry could have done) at the time of the design or manufacture is relevant to the jury's determination of negligence." Morden, 235 Wis. 2d 325, ¶ 56 (quoting Friederichs v. Huebner, 110 Wis. 2d 581, 616-17, 329 N.W.2d 890 (1983)).

State of the art issues do not apply only to individual manufacturers. Rather, an entire industry "may be negligent in failing to adopt new and available devices." Friederichs v. Huebner, 110 Wis. 2d 581, 619, 329 N.W.2d 890 (1983). In such instances, the issues are whether manufacturers within the industry could reasonably and economically implement current technology to create safer products. Huebner, 110 Wis. 2d at 619.

Government Contractor Defense

Under Lyons v. CNA Ins. Companies, 207 Wis. 2d 446, 457-58, 558 N.W.2d 658 (Ct. App. 1996), a government contractor is immune from liability under Wisconsin law when

1. the governmental authority approved reasonably precise specifications;

2. the contractor's actions       conformed to those specifications; and

3. the contractor warned the supervising governmental authority about the possible dangers associated with those specifications that were known to the contractor but not to the governmental officials

Lyons, 207 Wis. 2d at 457-58; see also Wis. Stat. § 895.047(3)(b) ("Evidence that the product, at the time of sale, complied in material respects with relevant standards, conditions, or specifications adopted or approved by a federal or state law or agency shall create a rebuttable presumption that the product is not defective.")

The Wisconsin Supreme Court has clarified that "when a governmental contractor seeks immunity under Wis. Stat. § 893.80(4), the contractor must show both that the contract was an agent . . . as is expressed in the Lyons test, and that the allegedly injurious conduct was caused by the implementation of a decision for which immunity is available for governmental entities under § 893.80(4)." Showers Appraisals, LLC v. Musson Bros., 2013 WI 79, 36, 350 Wis. 2d 509, 835 N.W.2d 226. Section 893.80(4) "immunizes local governments and their officers, employees, or agents from liability for acts involving the exercise of discretion or judgment." Manning v. Vinton Const. Co., 2014 WI App 110, 14, 357 Wis. 2d 721, 855 N.W.2d 903.

Under the first two requirements of the Lyons test, immunity only applies under § 893.80(4) if the governmental entity "has the right to control the tasks performed by the contractor with 'reasonably precise specifications"' and if the contractor follows these specifications. Showers Appraisals, 350 Wis. 2d 509, 37. If this standard is met, then the contractor is a governmental agent under § 893.80(4). Showers Appraisals, 350 Wis. 2d 509 37. Under the expanded statutory analysis, however, the contractor receives immunity only if the "injury-causing act was legislative, quasi-legislative, judicial or quasi-judicial in character." Showers Appraisals, 350 Wis. 2d 509, 36. In other words, government contractor immunity does not apply "for claims of negligently performed work . . . when the sole basis for immunity is that the work was performed pursuant to a contract with a governmental entity." Showers Appraisals, 350 Wis. 2d 509, 58. For example, design choices are legislative or quasi-legislative functions. Showers Appraisals, 350 Wis. 2d 509, 38 (citing Lyons, 207 Wis. 2d at 452-58). Therefore, in a claim for negligent design, the defendant-contractor may receive immunity if it performed the work pursuant to a government-sanctioned design. Showers Appraisals, 350 Wis. 2d 509, 37.

To date, it remains to be seen how the Showers Appraisals decision will impact products liability claims. However, the Showers Appraisals analysis will apply whenever a contractor seeks immunity under Wis. Stat. § 893.80(4). See Manning v. Vinton Const. Co., 2014 WI App 110, 357 Wis. 2d 721, 855 N.W.2d 903.

Statutes of Limitation and of Repose

An action to recover damages for injury to the person or wrongful death must be commenced within three years from the date of accrual. Wis. Stat. § 893.54. An action to recover damages for injury to real or personal property must be commenced within six years after the cause of action accrues. Wis. Stat. § 893.52. Wisconsin has a fifteen year statute of repose in products liability actions, meaning that the defendant is not liable to the claimant for damages "if the product alleged to have caused the damage was manufactured 15 years or more before the claim accrues, unless the manufacturer makes specific representation that the product will last for a period beyond 15 years." Wis. Stat. § 895.047(5). Similarly, causes of action for injuries stemming from improvements to real property must be brought within ten years "following the date of substantial completion of the improvement to real property." Wis. Stat. § 893.89.

Wisconsin follows the "discovery rule," under which "tort claims shall accrue on the date the injury is discovered or with reasonable diligence should be discovered, whichever occurs first." Hansen v. A.H. Robins, Inc., 113 Wis. 2d 550, 560, 335 N.W.2d 578 (1983).

This outline was prepared with the research assistance of Sean Lees, Marquette University Law School 2015.

^ Back to Top