2022 WI 109

SUPREME COURT OF WISCONSIN

CASE NO.: 2020AP1124

COMPLETE TITLE: Matthew W. Murphy,

 Plaintiff-Appellant,

Wisconsin Power and Light Company,

 Involuntary-Plaintiff,

 v.

Columbus McKinnon Corporation,

 Defendant-Respondent-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS 

Reported at 399 Wis. 2d 18, 963 N.W.2d 837

PDC No:2021 WI App 61 - Published 

OPINION FILED: December 28, 2022 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: September 12, 2022 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Sauk 

JUDGE: Michael P. Screnock 

JUSTICES:

ROGGENSACK, J., delivered the majority opinion of the Court, in 

which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined 

except for ¶¶38 and 41. KAROFSKY, J., filed a concurring 

opinion, in which ANN WALSH BRADLEY and DALLET, JJ., joined. 

HAGEDORN, J., filed an opinion concurring in part and dissenting 

in part, in which ZIEGLER, C.J., and REBECCA GRASSL BRADLEY, J., 

joined. 

NOT PARTICIPATING:

 

ATTORNEYS:

For the defendant-respondent-petitioner, there were briefs 

filed by Larry J. Britton, Shannon M. Trevithick, Debora F. 

Pagel, Esq., Kevin J. English, Erin E. Connare, and Britton & 

Associates, S.C., Mequon, and Phillips Lytle LLP, Buffalo. There 

was an oral argument by Kevin J. English, introduced by Shannon 

M. Trevithick.
2

For the plaintiff-appellant, there was a brief filed by 

Douglas J. Phebus, Victor M. Arellano, and Arellano & Phebus, 

S.C. There was an oral argument by Douglas J. Phebus. 

An amicus curiae brief was filed by Jesse B. Blocher and 

Habush, Habush, & Rottier, S.C., Waukesha, for the Wisconsin 

Association for Justice. There was an oral argument by Jesse B. 

Blocher. 
2022 WI 109

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2020AP1124

(L.C. No. 2016CV51)

STATE OF WISCONSIN : IN SUPREME COURT

Matthew W. Murphy,

 Plaintiff-Appellant,

Wisconsin Power and Light Company,

 Involuntary-Plaintiff,

 v.

Columbus McKinnon Corporation,

 Defendant-Respondent-Petitioner.

FILED

DEC 28, 2022

Sheila T. Reiff

Clerk of Supreme Court

ROGGENSACK, J., delivered the majority opinion of the Court, in 

which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined 

except for ¶¶38 and 41. KAROFSKY, J., filed a concurring 

opinion, in which ANN WALSH BRADLEY and DALLET, JJ., joined. 

HAGEDORN, J., filed an opinion concurring in part and dissenting 

in part, in which ZIEGLER, C.J., and REBECCA GRASSL BRADLEY, J., 

joined.

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 PATIENCE DRAKE ROGGENSACK, J. We review a published 

decision of the court of appeals1 that reversed in part and 

 

1 Murphy v. Columbus McKinnon Corp., 2021 WI App 61, 399 

Wis. 2d 18, 963 N.W.2d 837.
No. 2020AP1124 

2

affirmed in part the circuit court's2 grant of summary judgment 

for defendant Columbus McKinnon Corporation ("CMC"). We begin 

with the common law that applied to a design defect and then 

interpret, for the first time, Wis. Stat. § 895.047 (2019-20)3

following the legislature's creation of this state's product 

liability statute in 2011. We then apply the statute to the 

facts of this case to affirm the court of appeals' mandate and 

remand for further proceedings. 

¶2 In interpreting Wisconsin's product liability statute 

when the claim is for a defective design, we conclude as 

follows: (1) Wis. Stat. § 895.047(1)(a) requires proof of a 

more safe, reasonable alternative design the omission of which 

renders the product not reasonably safe; (2) proof that the 

consumer-contemplation standard4 as set out in § 895.047(1)(b) 

(for strict liability claims for a defective design) has been 

met; and (3) proof that the remaining three factors of a 

§ 895.047(1) claim have been met. The statute's plain language 

is clear in showing that the legislature codified the common law 

consumer-contemplation standard in § 895.047(1)(b). We disagree 

with the court of appeals' conclusion that the legislature 

 

2 The Honorable Michael P. Screnock of Sauk County, 

presided.

3 All subsequent references to the Wisconsin Statutes are to 

the 2019-20 version unless otherwise indicated.

4 The consumer-contemplation standard is sometimes referred 

to herein and in our case law as the consumer-contemplation 

test.
No. 2020AP1124 

3

discarded the consumer-contemplation test by incorporating the 

risk-utility balancing test. We also decline to adopt comment f 

of Restatement (Third) of Torts §2, upon which the court of 

appeals relied. With a clear understanding of the requirements 

that a plaintiff must establish, and considering the multiple 

genuine disputes of material fact, which we explain below, we 

affirm the court of appeals in reversing summary judgment and 

remand to the circuit court for further proceedings.

I. BACKGROUND

¶3 As a society, we owe a great deal to those who ensure 

electricity reaches our homes, work places, and public 

institutions. But that electricity reaches us, thanks in large 

part, due to the utility line technicians who perform a 

dangerous job. The United States Bureau of Labor Statistics 

recorded 2,310 nonfatal occupational injuries and illnesses for 

electrical power-line installers and repairers in 2013.5 

Plaintiff Matthew Murphy, a line technician for Wisconsin Power 

& Light Company,6 was one of those injured workers, sustaining 

substantial injury after a thirty-foot utility pole fell, 

struck, and came to rest atop him while Murphy attempted to load 

 

5 Bureau of Labor Statistics, U.S. Dep't of Labor, Injuries 

and Illnesses of Line Installers and Repairers (Feb. 28, 2018), 

https://www.bls.gov/opub/ted/2018/injuries-and-illnesses-ofline-installers-and-repairers.htm (last visited Dec. 19, 2022).

6 Murphy "held the positions of Line Technician Apprentice, 

Line Technician, and Technical Assistant." R. 44 at 52 

(Wisconsin Power & Light Company Response to Interrogatory No. 

15).
No. 2020AP1124 

4

used utility poles from the ground onto a trailer bed on May 14, 

2013.7

¶4 Utility workers lift poles using a truck-mounted boom 

featuring a winch, to which workers fix tongs that attach to the 

pole to enable secure lifting. Murphy's employer, Wisconsin 

Power and Light Company (WPL), provided regular training to its 

linemen regarding the appropriate procedure for attaching tongs. 

At least two styles of tongs were regularly on the trucks at the 

time of Murphy's injury, including: "Dixie" style tongs and 

"Hogg-Davis" jaw-style tongs. Dixie tongs resemble oldfashioned ice tongs, and are attached by placing a pointed prong 

on either side of the pole. Once the tongs are lifted upward, 

Dixie tongs close in a manner akin to scissors, and the force of 

upward lifting typically draws the points further into the pole 

against which the tongs are placed. Different from the twoprong Dixie tongs, Hogg-Davis jaw-style tongs feature multiple 

(often three) teeth along the inside of each side of the tongs. 

Jaw-style tongs clamp around the pole, providing six surfaces to 

contact the pole during lifting. 

¶5 When an individual lifts poles alone, line technicians 

are trained to attach the lifting tongs to the winch and then to 

the pole. Placement on the pole is paramount, and line 

 

7 On the day of the accident, Murphy's "original job 

assignment was to string wire at a different 

location. . . . Plaintiff's work assignment changed to pick up 

poles that had been removed from the ground and left lying to 

the side of Golf Course Road." R. 44 at 52 (Wisconsin Power & 

Light Company Response to Interrogatory No. 16). 
No. 2020AP1124 

5

technicians must be aware of two critical points for proper tong 

placement: (1) the balance point relative to the length of the 

pole; and (2) the attachment point as relative to the 

circumference of the pole. Regarding the balance point, line 

technicians are trained to place the lifting implement slightly 

off of the balance point so that the higher "light" end is 

toward the lineman. This placement prevents unpredictable 

teetering in a pole lifted at the exact balance point, and it 

ensures the lineman can push down on the higher end of a 

slightly-askew pole, rather than lift up on the lower end. 

Because poles are typically tapered, the balance point is not 

necessarily in the exact middle of the pole. As for the 

attachment point on the circumference, the tongs should grasp 

the lower third of the pole's circumference, as viewed by crosssection, to prevent slipping or falling that is more likely to 

occur from attachment nearer to the middle or top-third points. 

¶6 After selecting and attaching the desired tongs, line 

technicians are trained to follow certain protocol while loading 

poles from the ground onto a trailer bed. They are trained to 

perform a test lift to ensure the lifting implement does not 

slip or otherwise fail, and to test the attachment point.8 Line 

technicians then lower and make adjustments to the tongs' 

positioning, as needed. Having verified the tongs are attached 

securely and at the appropriate placement, line technicians then 

raise the hoist high enough to clear the sides of the truck bed. 

 

8 Test lifts entail lifting the hoist anywhere from six 

inches to two feet.
No. 2020AP1124 

6

¶7 Accordingly, line technicians must lift the pole at 

least somewhat higher than six feet to ensure both ends of the 

pole clear the side rails of the truck. They are trained not to 

lift the hoist "above the lineman's head." They are similarly 

trained not to stand under suspended poles, or to raise a load 

overhead. However, line technicians must remain in close 

proximity to the suspended poles, as they are trained to "right" 

an askew pole by placing downward pressure on the upper end to 

ensure the pole remains relatively horizontal to the ground. 

¶8 While ideally line technicians work in pairs to 

perform this task, utility companies acknowledge this is not 

always feasible, and they also have trained them for independent 

work. Line technicians have the option to wear a waist belt 

that can remotely control the hoist. This device allows line 

technicians to operate both the boom and winch, as well as place 

as-needed pressure to right a pole. 

¶9 Murphy had worked as a line technician for 

approximately six years and had loaded and unloaded utility 

poles numerous times. On the date of his injury, Murphy and a 

colleague worked as a pair to load used utility poles from the 

side of the road to a trailer. However, due to the poles' 

location, the pair decided to bring the utility poles to the 

location of the boom and hoist truck. As Murphy's coworker 

dragged poles toward Murphy with one truck, Murphy independently 

loaded poles onto a trailer using a waist belt and a separate 

truck with the boom. Murphy attached Dixie tongs to an old, 
No. 2020AP1124 

7

weathered, hard pole. Once hoisted in the air, the pole came 

loose from the tongs and struck Murphy, injuring him severely. 

¶10 Murphy has no recollection of the accident due to his 

injuries; his coworker did not witness the accident as he was 

moving a truck. The only two eyewitnesses were drivers waiting 

for Murphy's colleague to move the truck out of the way to 

reopen traffic after dragging a pole to Murphy. 

¶11 The Dixie tongs Murphy used on the date of his 

accident were manufactured by defendant CMC. CMC is aware line 

technicians use the Dixie tongs to lift poles, and it marketed 

the tongs as "pole tongs" in its own advertisements. Murphy's 

employer purchased the Dixie tongs intending to use them to lift 

poles. Murphy brought a products liability lawsuit against CMC 

alleging both strict product liability for a design defect under 

Wis. Stat. § 895.047(1), relying on the Hogg-Davis jaw-style 

design as providing a more safe alternative design, and as 

support for a common law claim of negligent design.9

 

9 Initially, Murphy also alleged strict product liability 

claims on the theory of failure to warn and, in addition to the 

alternative design of "Hogg-Davis" jaw-style tongs, a second 

alternative choker-style design. Additional defendants included 

CM Hydraulic Tool Supply, Inc., from whom Murphy's employer 

purchased the CMC "Dixie" tongs, and CM Hydraulic's insurer, 

United Fire & Casualty. Murphy's former employer, Wisconsin 

Power and Light Company, is an involuntary plaintiff in this 

lawsuit. In September 2018, Murphy, CM Hydraulic, and United 

Fire settled for an undisclosed amount. Murphy confirmed his 

withdrawal of the failure to warn claim at a hearing for summary 

judgment on December 10, 2018. The court of appeals confirmed 

Murphy "concedes through silence that he has forfeited and 

abandoned argument based on this purported alternative [chokerstyle] design." Murphy, 399 Wis. 2d 18, ¶14. The issue of 

choker-style tongs was not raised with this court, so we, too, 
No. 2020AP1124 

8

¶12 Following over two years of discovery, CMC moved for 

summary judgment. Finding genuine disputes of material fact, 

the circuit court denied summary judgment and recommended the 

parties reconvene with their experts to resolve unanswered 

questions. Four months later, the court denied summary judgment 

again, reasoning the persistent factual disputes and difficulty

in allocating fault did not allow for summary judgment on 

Murphy's claims or on CMC's defenses. The parties set a trial 

date for April 2020. Faced with delaying the trial 

significantly due to the COVID-19 pandemic, the circuit court 

sua sponte reconsidered CMC's motion for summary judgment at a 

hearing on motions in limine and granted summary judgment for 

CMC. Murphy appealed.

¶13 The court of appeals reversed in part and affirmed in 

part. Agreeing with the circuit court that there was 

insufficient evidence to support Murphy's second alternative 

choker-design theory, the court of appeals affirmed summary 

judgment on that claim in favor of CMC. Regarding the primary 

alternative design theory of Hogg-Davis jaw-style tongs, 

however, the court of appeals concluded there were genuine 

disputes of material fact, and reversed summary judgment.10 

Lastly, the court of appeals acknowledged that multiple genuine 

 

treat the second alternative design theory as abandoned.

10 CMC also raised a question regarding admissibility of 

expert witness testimony on review, which it did not raise at 

the court of appeals. As this question does not properly appear 

before us, we decline to address it, as is our prerogative. 

State v. Mark, 2006 WI 78, ¶11, 292 Wis. 2d 1, 718 N.W.2d 90.
No. 2020AP1124 

9

disputes of material fact precluded it from apportioning 

negligence to affirm summary judgment for CMC or from addressing 

CMC's other fact-specific defenses. CMC sought review before 

us, which we granted. 

II. DISCUSSION 

A. Standard of Review

¶14 This case presents a question of statutory 

interpretation, which we independently decide. Andruss v. 

Divine Savior Healthcare Inc., 2022 WI 27, ¶24, 401 Wis. 2d 368, 

973 N.W.2d 435. 

¶15 CMC asks us to reinstate the circuit court's grant of 

summary judgment in its favor. We review summary judgment 

independently. In so doing, we decide whether there are genuine 

issues of material fact, but we do not resolve any disputed 

factual issues. Id., ¶¶40, 42. Essentially, we apply the same 

methodology as the circuit court, although we benefit from the 

decisions of both the circuit court and the court of appeals. 

Butler v. Advanced Drainage Sys., Inc., 2006 WI 102, ¶17, 294 

Wis. 2d 397, 717 N.W.2d 760. 

B. Development of Wisconsin's Product Liability Law

¶16 In resolving the issues raised in this case, we review 

the development of Wisconsin's product liability law as 

established in the common law and the parties' positions 

regarding the interpretation of Wis. Stat. § 895.047(1), 

followed by our statutory interpretation. 
No. 2020AP1124 

10

1. Common Law11

¶17 As we begin, we note that the better part of the last 

century featured changes to the landscape of strict product 

liability. Dippel v. Sciano, 37 Wis. 2d 443, 449, 155 N.W.2d 55 

(1967). While at one point an injured person needed to 

demonstrate privity of contract to establish liability, United 

States jurisdictions, including Wisconsin, dispensed with that 

requirement decades ago. Id. at 450. As we moved away from 

grounding defective product claims in contract, we established 

manufacturer and supplier liability in negligence——in tort. Id.

at 451-52, relying on Cohan v. Associated Fur Farms, Inc., 261 

Wis. 584, 589, 53 N.W.2d 788 (1952) and Smith v. Atco Co., 6 

Wis. 2d 371, 383-84, 94 N.W.2d 697 (1959).12 

¶18 In Dippel, we voiced a desire to move more slowly in 

developing our products liability law than other jurisdictions. 

Dippel, 37 Wis. 2d at 453. But, in the absence of statutory 

guidance, we adopted a rule of strict liability in accord with 

 

11 "Common law" has been defined as "The body of law derived 

from judicial decisions." Black's Law Dictionary 293 (8th ed. 

2004).

12 Smith v. Atco Co., 6 Wis. 2d 371, 383-84, 94 N.W.2d 697 

(1959) ("The question of liability should be approached from the 

standpoint of the standard of care to be exercised by the 

reasonably prudent person in the shoes of the defendant 

manufacturer or supplier. Such an approach will eliminate any 

necessity of determining whether a particular product is 

'inherently dangerous.' If a manufacturer or supplier is 

hereafter to be relieved from liability as a matter of law by 

the courts, such result should be reached on the basis that 

there was no causal negligence established against the defendant 

rather than that the product was not inherently dangerous.").
No. 2020AP1124 

11

that set forth in § 402A of the Restatement (Second) of Torts 

(Am. Law Inst. 1965). Id. at 453, 458-59, 462.13 Section 402A 

states:

(1) One who sells any product in a defective 

condition unreasonably dangerous to the user or 

consumer or to his property is subject to liability 

for physical harm thereby caused to the ultimate user 

or consumer, or to his property, if

(a) The seller is engaged in the business of 

selling such a product, and

(b) It is expected to and does reach the user or 

consumer without substantial change in the 

condition in which it is sold.

(2) The rule stated in Subsection (1) applies 

although

(a) The seller has exercised all possible care in 

the preparation and sale of his product, and

(b) The user or consumer has not bought the 

product from or entered into any contractual 

relation with the seller. 

Restatement (Second) of Torts § 402A. 

¶19 By adopting Restatement (Second) of Torts § 402A, we 

set out five requirements that a plaintiff must prove to prevail 

in a strict liability products claim.14 Id. at 460. At the same 

 

13 "Strict liability in tort for the sale of a defective 

product unreasonably dangerous to an intended user or consumer 

now arises in this state by virtue of a decision of this court 

[as opposed to by statute]." Dippel v. Sciano, 37 Wis. 2d 443, 

462, 155 N.W.2d 55 (1967).

14 "From a reading of the plain language of the rule, the 

plaintiff must prove (1) that the product was in defective 

condition when it left the possession or control of the seller, 

(2) that it was unreasonably dangerous to the user or consumer, 

(3) that the defect was a cause (a substantial factor) of the 

plaintiff's injuries or damages, (4) that the seller engaged in 
No. 2020AP1124 

12

time, we acknowledged available defenses of assumption of risk 

and contributory negligence when a plaintiff failed to exercise 

reasonable care. Id. at 459-60. We also acknowledged that the 

product must be "reasonably used for the purpose for which it 

was intended," and that the "abuse or alteration of the product 

may relieve or limit liability."15 Id. at 460. 

 

the business of selling such product or, put negatively, that 

this is not an isolated or infrequent transaction not related to 

the principal business of the seller, and (5) that the product 

was one which the seller expected to and did reach the user or 

consumer without substantial change in the condition it was when 

he sold it." Id. at 460.

15 However, by keeping traditional defenses such as 

comparative negligence in adopting Restatement (Second) of Torts 

§ 402A, Wisconsin did not wholesale adopt strict liability. 

Rather, as one justice proclaimed, this court merely adopted a 

manner to establish "negligence as a matter of law and such 

negligence is subject to the ordinary rules of causation and the 

defense applicable to negligence. While the [Restatement of 

Torts (Second) § 402A], imposes a strict or absolute liability 

regardless of the negligence of the seller, we do not." Id. at 

464 (Hallows, J., concurring) (underscored sentence adopted in 

Schuh v. Fox River Tractor Co., 63 Wis. 2d 728, 735, 218 N.W.2d 

279 (1974)). By establishing the requisite elements in § 402A, 

a Wisconsin plaintiff was "relieved of the burden of proving 

specific acts of negligence by the manufacturer who is then 

deemed negligent per se." Vincer v. Esther Williams AllAluminum Swimming Pool Co., 69 Wis. 2d 326, 330, 230 N.W.2d 794 

(1975).

See 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.").
No. 2020AP1124 

13

¶20 In Vincer, we clarified that the appropriate test to 

employ as to whether a product is "unreasonably dangerous," as 

required under § 402A(1) of the Restatement (Second), is the 

consumer-contemplation test. Vincer v. Esther Williams AllAluminum Swimming Pool Co., 69 Wis. 2d 326, 332, 230 N.W.2d 794 

(1975). As 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. The test is 

objective and not dependent on a particular injured consumer's 

knowledge. Id. However, we also reasoned that a particular 

injured consumer's knowledge of the dangerous condition of a 

product may be "evidence of contributory negligence under the 

circumstances." Id. We 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 extent beyond that which 

would be contemplated by the ordinary consumer who purchased it, 

with the ordinary knowledge common to the community as to its 

characteristics." Vincer, 69 Wis. 2d at 331 (quoting 
No. 2020AP1124 

14

Restatement (Second) of Torts § 402A cmt. i). We have 

reaffirmed that "Wisconsin is committed to the consumercontemplation 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. In pertinent part, Section 

2 states:

A product is defective when, at the time of sale or 

distribution, it contains a manufacturing defect, is 

defective in design, or is defective because of 

inadequate instructions or warnings. A product:

(a) contains a manufacturing defect when the 

product departs from its intended design . . . .

(b) is defective in design when the foreseeable 

risks of harm posed by the product could have 

been reduced or avoided by the adoption of a 

reasonable alternative design by the seller or 

other distributor . . . and the omission of the 

alternative design renders the product not 

reasonably safe;

(c) is defective because of inadequate 

instructions or warnings . . . .

Restatement (Third) of Torts § 2.

¶23 Section 2 of the Third Restatement separated products 

liability claims into three categories: "manufacturing defects, 

design defects, and defects based on failure to warn." Godoy ex 

rel. Gramling v. E.I. du Pont de Nemours & Co., 2009 WI 78, ¶17, 

319 Wis. 2d 91, 768 N.W.2d 674. CMC has argued that § 2(b) 
No. 2020AP1124 

15

replaced the consumer-contemplation test with the risk-utility 

test as the standard for judging whether a product is in a 

defective condition. We repeatedly have declined invitations to 

adopt the Restatement (Third) of Torts § 2. See Sharp v. Case 

Corp., 227 Wis. 2d 1, 19, 595 N.W.2d 380 (1999); Green, 245 

Wis. 2d 772, ¶74.16

¶24 While parties did not invite this court to adopt the 

Restatement (Third) of Torts § 2 in Godoy or Horst, the separate 

writings in both cases, issued the same day in 2009, expounded 

the merits and deficiencies of both § 402A of Restatement 

(Second) and § 2(b) of the Restatement (Third).17 Godoy, 319 

Wis. 2d 91, Horst v. Deere & Co., 2009 WI 75, 319 Wis. 2d 147, 

769 N.W.2d 536. 

¶25 In 2011, the legislature created Wis. Stat. § 895.047 

as part of Act 2, which altered the landscape of Wisconsin's 

product liability law. Accordingly, § 895.047 is the first 

statute to guide the judiciary in product liability claims in 

this state. The statute, now at issue, establishes what a 

plaintiff must show in order to prove a claim of strict 

 

16 See also Haase v. Badger Mining Corp., 2004 WI 97, ¶23, 

274 Wis. 2d 143, 682 N.W.2d 389 (declining to adopt Restatement 

(Third) of Torts § 5).

17 The parties point out that despite the fact that four 

Justices professed a preference for the Restatement (Third) 

§ 2(b) and spoke favorably of adopting it, the court did not do 

so in either case. One of the four Justices did not participate 

in either Godoy (Justice Roggensack) or Horst (Justice Ziegler). 

Godoy ex rel. Gramling v. E.I. du Pont de Nemours & Co., 2009 WI 

78, 319 Wis. 2d 91, 768 N.W.2d 674; Horst v. Deere & Co., 2009 

WI 75, 319 Wis. 2d 147, 769 N.W.2d 536.
No. 2020AP1124 

16

liability for a design defect. This case presents the first 

opportunity for judicial statutory interpretation of § 895.047 

since its creation. We pause briefly to summarize the parties' 

arguments regarding the statute's meaning.

2. Parties' Arguments

¶26 CMC urges this court to read Wis. Stat. § 895.047 as a 

wholesale adoption of the Restatement (Third) of Torts' riskutility test as complete replacement of the common law consumercontemplation test. CMC interprets the separate writings in 

Godoy and Horst as directives from the court to the legislature, 

and suggests the legislature adopted the entire Restatement 

(Third) of Torts § 2(b) in response. CMC argues the identical 

language between a large portion of the Restatement (Third) 

§ 2(b) and one of the five paragraphs of § 895.047(1) must, 

therefore, mean that the legislature did away with decades of 

common law in a few short strokes of the pen. In asserting 

Wisconsin adopted the Restatement (Third) of Torts when the 

legislature created § 895.047 in 2011, CMC summarily concludes 

that Wisconsin has "abandon[ed] any distinction between strict 

liability and negligence actions." 

¶27 Contrastingly, Murphy and amicus argue a 

straightforward, plain language reading of Wis. Stat. § 895.047. 

They assert that the Wisconsin Legislature created a unique, 

hybrid products liability claim that includes five requirements, 

but which retains the consumer-contemplation test and the 

distinction between strict liability and negligence as to 

product claims. 
No. 2020AP1124 

17

¶28 We conclude, as we explain below, Wis. Stat. § 895.047 

remains loyal to Wisconsin's roots in the common law consumercontemplation test. While § 895.047 appears to borrow language 

from the Restatement (Third) of Torts, the legislature did not 

adopt the entirety of § 2, nor did it enact the Restatement's 

voluminous comments.18 

3. Wisconsin Stat. § 895.047

¶29 Statutory interpretation "begins with the language of 

the statute. If the meaning of the statute is plain, we 

ordinarily stop the inquiry." State ex rel. Kalal v. Cir. Ct. 

for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 

110. It is helpful to revisit the principles of statutory 

interpretation we set forth in Kalal:

Judicial deference to the policy choices enacted into 

law by the legislature requires that statutory 

interpretation focus primarily on the language of the 

statute. We assume that the legislature's intent is 

expressed in the statutory language. Extrinsic 

evidence of legislative intent may become relevant to 

statutory interpretation in some circumstances, but is 

not the primary focus of inquiry. . . . It is the 

enacted law, not the unenacted intent, that is binding 

on the public. Therefore, the purpose of statutory 

interpretation is to determine what the statute means 

so that it may be given its full, proper, and intended 

effect.

Id., ¶44. "Statutory language is read where possible to give 

reasonable effect to every word, in order to avoid surplusage." 

Id., ¶46. We do not consult extrinsic sources of interpretation 

 

18 Amicus points out Restatement (Third) of Torts § 2 has 18 

comments with a total of 11,000 words. See also Restatement 

(Third) of Torts § 2.
No. 2020AP1124 

18

if the statute is unambiguous, although we do read a statute 

within its context and according to its structure in a plain 

reading interpretation. Id., ¶¶46, 49. 

¶30 With these principles in mind, Wis. Stat. § 895.047(1) 

states in relevant part: 

[A] manufacturer is liable to a claimant if the 

claimant establishes all of the following by a 

preponderance of the evidence: 

(a) That the product is defective because 

it . . . is defective in design. . . . A product is 

defective in design if the foreseeable risks of harm 

posed by the product could have been reduced or 

avoided by the adoption of a reasonable alternative 

design by the manufacturer and the omission of the 

alternative design renders the product not reasonably 

safe. 

(b) That the defective condition rendered the 

product unreasonably dangerous to persons or property.

(c) That the defective condition existed at the 

time the product left the control of the manufacturer.

(d) That the product reached the user or 

consumer without substantial change in the condition 

in which it was sold.

(e) That the defective condition was a cause of 

the claimant's damages. 

§ 895.047(1). In so providing, the legislature set a 

particularized requirement that proof of the requirements of 

"all" paragraphs in subsec. (1) is necessary to prevail on a 

defective design claim. The legislature has required meeting 

statutory criteria in other contexts. See, e.g., County of Dane 

v. LIRC, 2009 WI 9, ¶¶26, 27, 315 Wis. 2d 293, 759 N.W.2d 571 

(directing that when statutory criteria define a condition, all 
No. 2020AP1124 

19

the requirements of the statute must be met in order to 

prevail). Accordingly, each paragraph following subsec. 1 is an 

obligation a plaintiff must satisfy to move forward with a 

defective design, product-liability claim. 

¶31 While the language in para. (a) repeats the language 

from the Restatement (Third) § 2 subsecs. (a), (b), and (c), 

Wis. Stat. § 895.047(1) paras. (b), (c), (d), and (e) codify the 

common law Wisconsin courts have developed and applied for 

decades. For example, § 895.047(1)(b) requires that the 

"defective condition" renders the product "unreasonably 

dangerous," which is a part of the common law test. See

Tietsworth v. Harley-Davidson, Inc., 2004 WI 32, ¶¶7, 8, 270 

Wis. 2d 146, 677 N.W.2d 233 (applying the "unreasonably 

dangerous" common law test to Harley's TC-88's defective 

engine). Also, in Kozlowski v. John E. Smith's Sons Co., 87 

Wis. 2d 882, 889, 275 N.W.2d 915 (1979), we set out common law 

factors such as recognizing an "unreasonably dangerous product," 

"fail[ing] to exercise ordinary care to render its product 

safe," and "failing to inform users of the defective condition," 

all in regard to an unreasonably dangerous air compression 

sausage stuffer). 

¶32 In addition, Wis. Stat. § 895.047(6) specifically 

maintains the criteria for claims of negligence and breach of 

warranty, claims well-grounded in Wisconsin common law.19 See

 

19 Wisconsin Stat. § 895.047(6) states: "Inapplicability. 

This section does not apply to actions based on a claim of 

negligence or breach of warranty."
No. 2020AP1124 

20

Stehlik v. Rhoads, 2002 WI 73, ¶¶52, 53, 253 Wis. 2d 477, 645 

N.W.2d 889 (explaining the common law limitations on liability 

grounded in negligence); Foley v. City of West Allis, 113 

Wis. 2d 475, 483, 335 N.W.2d 824 (1983) (explaining common law 

standard of ordinary care in regard to use of seat belts); 

Robert H. Lande, A Traditional and Textualist Analysis of the 

Goals of Antitrust, 81 Fordham L. Rev. 2349, 2366 (citing Scalia 

& Garner, Reading Law: The Interpretation of Legal Texts (2012) 

at 320, explaining the canon of imputed common law meaning as 

providing that when a statute uses a common-law term without 

defining it, the statute adopts its common law meaning). 

¶33 Paragraph (a) of Wis. Stat. § 895.047(1)(a) mirrors 

language from Restatement (Third) § 2. It does not adopt the 

common law standard as § 895.047(b) does. The terms and 

language of para. (1)(a) are not complex, technical, or 

difficult to understand. Therefore, our focus must be 

"primarily on the language of the statute." Kalal, 271 

Wis. 2d 633, ¶44. Section 895.047(1)(a), as relevant here to 

the issue of claimed design defects, establishes two unambiguous 

requirements that a plaintiff must allege and prove: (1) "the 

foreseeable risks of harm posed by the product could have been 

reduced or avoided by the adoption of a reasonable alternative 

design;" and (2) "the omission of the alternative design renders 

the product not reasonably safe." Accordingly, the plain 

language of paragraph (1)(a) is clear. Since the legislature 

did not direct us further to incorporate or apply a test from 

the Restatement (Third) of Torts § 2, we conclude "[i]t is the 
No. 2020AP1124 

21

enacted law, not the unenacted intent, that is binding on the 

public." Id. We interpret para. (1)(a) by its plain language, 

and conclude that the paragraph is unambiguous; therefore, we 

cease our inquiry. Id., ¶45.

¶34 However, for the sake of thoroughness, we address 

another of CMC's arguments on the interpretation of para. 

(1)(a). CMC asserts the word "reasonable/reasonably" in para. 

(1)(a) accomplishes at least one, if not all, of the 

following: (1) it creates the risk-utility balancing test found 

in Restatement (Third) of Torts § 2(b), and reads in the 

requirements of comment f ("Design defects: factors relevant in 

determining whether the omission of a reasonable alternative 

design renders a product not reasonably safe");20 (2) it confuses 

 

20 Comment f to Restatement (Third) of Torts § 2 spans three 

pages of the Restatement, so we relay only the portion the court 

of appeals relied on: 

A broad range of factors may be considered in 

determining whether an alternative design is 

reasonable and whether its omission renders a product 

not reasonably safe. The factors include, among 

others, the magnitude and probability of the 

foreseeable risks of harm, the instructions and 

warnings accompanying the product, and the nature and 

strength of consumer expectations regarding the 

product, including expectations arising from product 

portrayal and marketing. See Comment g. The relative 

advantages and disadvantages of the product as 

designed and as it alternatively could have been 

designed may also be considered. Thus, the likely 

effects of the alternative design on production costs; 

the effects of the alternative design on product 

longevity, maintenance, repair, and esthetics; and the 

range of consumer choice among products are factors 

that may be taken into account. A plaintiff is not 

necessarily required to introduce proof on all of 
No. 2020AP1124 

22

factfinders; and (3) it blurs any relevant distinction between 

the statute's terms. 

¶35 Regardless of where the language that was employed in 

Wis. Stat. § 895.047(1)(a) originated, the legislature left no 

further direction that the statute should be interpreted by 

superimposing extra-statutory language. Stated otherwise, we 

will not read Restatement language or Restatement comments into 

a statute, simply because the legislature selectively adopted 

some wording from the Restatement. 

¶36 As for CMC's argument that the word "reasonable" 

serves as an impediment to juries, bench and bar alike, we must 

disagree. Parties adjudicate the issue of reasonability all the 

time——we need look only to the other claim in this 

action: negligence. One element of a negligence claim turns on 

whether the defendant's standard of care fell below that of a 

"reasonable person." Jankee v. Clark Cnty., 2000 WI 64, ¶9, 235 

Wis. 2d 700, 612 N.W.2d 297. To our knowledge, circuit courts, 

attorneys, and juries have had little trouble understanding and 

applying the issue of reasonability.21 

 

these factors; their relevance, and the relevance of 

other factors, will vary from case to case.

Restatement (Third) of Torts § 2 cmt. f. See also Murphy, 399 

Wis. 2d 18, ¶31.

21 As parties pointed out at oral argument, courts have used 

the Wis. JI——Civil 3260.1 (2014) for Product Liability under 

Wis. Stat. § 895.047 for over a decade and there have been "no 

appeals, no issues." Our own research turned up no results of 

cases appealing the use or interpretation of the standard Wis. 

JI——Civil 3260.1. We do, however, note the comments to Wis. JI—

—Civil 3260.1 suggest the legislature abandoned the consumer-
No. 2020AP1124 

23

¶37 At first blush, CMC's final argument regarding the 

challenge in reading Wis. Stat. § 895.047(1)(a) within the 

entirety of § 895.047 provides more substantive contentions, but 

we dispose of the argument because of para. (a)'s plain language 

and para. (b)'s codification of the common law. CMC asserts 

that para. (a)'s language "not reasonably safe" cannot be read 

in harmony with para. (b)'s "unreasonably dangerous." But, just 

as we can identify that para. (a) codifies language from the 

Restatement (Third), we also can identify (b)'s "unreasonably 

dangerous" language as a codification of the consumercontemplation test from this state's common law. See e.g., 

Dippel, 37 Wis. 2d 443; Vincer, 69 Wis. 2d 326; Green, 245 

Wis. 2d 772. This is where we recognize the legislature's 

retention of the consumer-contemplation test in the statute. 

Scalia & Garner, supra, at 320 (describing canon of imputed 

common law meaning).

¶38 Further, Wis. Stat. § 895.047 presents the rare 

situation in which the legislature recorded its findings and 

intent in neighboring Wis. Stat. § 895.046, which also was 

created under Act 2. While we need not consult legislative 

intent, we have done so to confirm a plain meaning analysis in 

the past. Kalal, 271 Wis. 2d 633, ¶51. In § 895.046(1g), the 

legislature recorded its intent in clarifying product liability 

 

contemplation test and adopted the risk-utility test, which is 

problematic and incorrect.
No. 2020AP1124 

24

law was in part "to return tort law to its historical, common 

law roots."22 

¶39 As a final matter, we briefly address CMC's argument, 

noted earlier, that Wisconsin's product liability statute 

eliminates plaintiffs' ability to bring a claim in negligence 

for product design. To the contrary, Wis. Stat. § 895.047(6) 

 

22 Wisconsin Stat. § 895.046(1g) states:

Legislative findings and intent. The legislature 

finds that it is in the public interest to clarify 

product liability law, generally, and the application 

of the risk contribution theory of liability first 

announced by the Wisconsin Supreme Court in Collins v. 

Eli Lilly Co., 116 Wis. 2d 166[, 342 N.W.2d 37] 

(1984), specifically, in order to return tort law to 

its historical, common law roots. This return both 

protects the rights of citizens to pursue legitimate 

and timely claims of injury resulting from defective 

products, and assures that businesses may conduct 

activities in this state without fear of being sued 

for indefinite claims of harm from products which 

businesses may never have manufactured, distributed, 

sold, or promoted, or which were made and sold decades 

ago. The legislature finds that the application of 

risk contribution to former white lead carbonate 

manufacturers in Thomas v. Mallett, [2005 WI 129, 285 

Wis. 2d 236, 701 N.W.2d 523], was an improperly 

expansive application of the risk contribution theory 

of liability announced in Collins, and that 

application raised substantial questions of 

deprivation of due process, equal protection, and 

right to jury trial under the federal and Wisconsin 

constitutions. The legislature finds that this 

section protects the right to a remedy found in 

[A]rticle I, [S]ection 9, of the Wisconsin 

Constitution, by preserving the narrow and limited 

application of the risk contribution theory of 

liability announced in Collins. 

§ 895.046(1g).
No. 2020AP1124 

25

plainly states the products liability section "does not apply to 

actions based on a claim of negligence or breach of warranty." 

Such claims establish their provenance outside of § 895.047, and 

the statute does not extinguish a plaintiff's ability to bring a 

claim in negligence against a product manufacturer. 

¶40 Therefore, Wis. Stat. § 895.047(1) enumerates five 

criteria a plaintiff must establish in a defective design claim 

against a manufacturer.23 Despite Restatement (Third), a plain 

language reading of para. (a) establishes two requirements, 

noted above. The statute in other paragraphs codifies 

Wisconsin's commitment to the consumer-contemplation test (para. 

(b)), while also codifying this state's common law in paras. 

(c), (d), and (e). Lastly, 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 

 

23 While 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) does 

not include one requirement from Dippel "(4) that the seller 

engaged in the business of selling such product or, put 

negatively, that this is not an isolated or infrequent 

transaction not related to the principal business of the 

seller;" id. at 460, and secondly, of course, § 895.047(1) 

includes para. (1)(a), the language of which is borrowed from 

the Restatement (Third) of Torts § 2. 
No. 2020AP1124 

26

pre-2011 continues to provide persuasive authority in products 

liability cases.24

 

24 The Sumnicht factors may be persuasive in regard to the 

reasonableness of a design and 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 harmful incident. . . . 4) the ability of the 

manufacturer to eliminate danger without impairing the 

product's usefulness or making it unduly expensive; 

and 5) the relative likelihood of injury resulting 

from the product's present design.

Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 121 Wis. 2d 338, 

372, 360 N.W.2d 2 (1984) (citing Collins v. Ridge Tool Co., 520 

F.2d 591, 594 (7th Cir. 1975)).
No. 2020AP1124 

27

C. Summary Judgment

¶42 This brings us to the court of appeals' decision to 

reverse the circuit court's grant of summary judgment in CMC's 

favor. "Every decision on a motion for summary judgment begins 

with a review of the complaint to determine whether, on its 

face, it states a claim for relief." Butler, 294 Wis. 2d 397, 

¶18 (citing Hoida, Inc. v. M&I Midstate Bank, 2006 WI 69, ¶16, 

291 Wis. 2d 283, 717 N.W.2d 17). If it does, "we examine the 

answer to see if issues of fact or law have been joined." 

Butler, 294 Wis. 2d 397, ¶18. When the "complaint and answer 

are sufficient to join issue, we examine the moving party's 

affidavits to determine whether they establish a prima facie 

case for summary judgment." Id. Any factual dispute will not 

necessarily preclude summary judgment, only disputes of material 

fact will do so. Id. Accordingly, we review whether Murphy's 

complaint asserted (1) a strict product liability claim under 

Wis. Stat. § 895.047, and (2) a negligent design claim against 

CMC. 

¶43 To prevail under the strict product liability claim, 

Murphy, a line technician, must demonstrate all of the five 

statutory factors: First, the foreseeable risks of the Dixie 

tongs could have been reduced or avoided by the adoption of a 

reasonable alternative design and CMC's omission of a reasonable 

alternative design rendered the Dixie tongs not reasonably safe. 

Murphy's expert witness, Dr. John DeRosia, opined that "[t]here 

are several alternative designs that do not share the single 

point of failure flaw of the Dixie lifting tongs. One device, 
No. 2020AP1124 

28

manufactured by Hogg-Davis . . . uses multiple teeth on each 

side of the tongs. The [Hogg-Davis] tongs also incorporate a 

locking mechanism that prevents them [from] opening 

inadvertently."25 DeRosia also explained: 

An advantage of the Hogg-Davis tongs would be that the 

weight of the tongs, over 22 pounds, would tend to 

push the tongs open completely, allowing the teeth of 

the tongs to engage fully. In [an attached photo 

showing the tongs holding a suspended pole], the top 

four of the six teeth are embedded into the wood of 

the pole. The bottom two teeth, being closer together 

than the teeth above also act to trap the pole and 

prevent the pole from escaping. If a failure of the 

grasp of the upper four teeth occurs, the bottom teeth 

would prevent the pole from falling out of the grasp 

of the tongs."[26]

¶44 Accordingly, Murphy provided evidence that the Dixie 

tongs, by their defective design of a single attachment point on 

each side of the pole, presented foreseeable risks that a pole 

could fall out of the tongs' grasp. DeRosia points to a 

reasonable alternative design that features multiple contact 

surfaces, and an additional set of teeth below the teeth 

contacting a suspended pole that would serve to catch the pole 

if a clamp failed. DeRosia also describes the smaller opening 

at the bottom of the Hogg-Davis tongs that prevents loss of a 

clamped pole. DeRosia opined that the Dixie tongs' omission of 

additional teeth or contact surfaces renders the Dixie tongs not 

reasonably safe. 

 

25 R. 42 at 4.

26 R. 154 at 6.
No. 2020AP1124 

29

¶45 DeRosia also opined that the Dixie tongs failed to 

address the foreseeable risk that a long, heavy pole would tilt 

or teeter when lifted by tongs with a single point on either 

side. DeRosia's reports sufficiently support the theory that a 

reasonable alternative design, such as the six, half-inch-long 

teeth of the Hogg-Davis tongs, would reduce or avoid the 

foreseeable risks posed by a tilting pole. 

¶46 Second, the Dixie tongs' defect rendered the product 

unreasonably dangerous to persons or property under the 

consumer-contemplation standard. Under that test, "the article 

sold must be dangerous to an extent beyond that which would be 

contemplated by the ordinary consumer who purchases it, with the 

ordinary knowledge common to the community as to its 

characteristics." Vincer, 69 Wis. 2d at 331. At the time of 

Murphy's accident, CMC advertised the Dixie tongs as "Lifting 

tongs [] used to lift logs and poles into place. Lifting tongs 

are certified and tested for overhead lifting."27 Further, the 

pole that fell on Murphy was 600 pounds, well within the Dixie 

tongs' 2,500 pound workload rating. Given that Murphy was not 

lifting a load beyond the tongs' rated maximum, and that the 

tongs are advertised for lifting poles, and certified for 

overhead lifting, he provided evidence that an ordinary consumer 

would not anticipate anything more than the inherent dangers of 

working with a heavy, suspended load. Line technicians would 

not expect the Dixie tongs to pose a danger beyond what they

 

27 R. 42 at 4.
No. 2020AP1124 

30

could contemplate, such as the tongs losing gripping force based 

on a teetering pole. Accordingly, based on the evidence Murphy 

presented, an ordinary consumer of Dixie tongs would not 

contemplate the dangers posed by the Dixie tongs' unsafe design. 

Murphy survives on para. (b) as well. 

¶47 The last factor in Murphy's strict product liability 

claim, that the defective design was a cause of Murphy's 

damages, is supported by DeRosia's opinion, but is contested by 

CMC, who has raised Murphy's conduct as a cause of his injuries. 

CMC also had its own expert witness who did not concur in 

DeRosia's judgment. This does not defeat Murphy's claims but it 

may create disputes of material facts in regard to his strict 

products liability claim for a defectively designed product.28

¶48 To prevail on the negligent design claim, Murphy must 

establish a traditional negligence claim that CMC owed him a 

duty, that the Dixie tongs' design did not meet the standard of 

care that duty required, and therefore CMC breached its duty, 

which caused his injuries. Collins v. Eli Lilly Co., 116 

Wis. 2d 166, 181-82, 342 N.W.2d 37 (1984); see also Wis. JI——

Civil 1005. 

¶49 CMC's answer denies all elements of the claims, 

although it concedes it manufactured the Dixie tongs at issue in 

Murphy's injuries. CMC also asserts Murphy was contributorily 

negligent as a matter of law, which CMC contends precludes his 

 

28 Whether the pole would have fallen from an alternative 

design tongs, e.g., the Hogg-Davis tongs, is a contested 

material fact. 
No. 2020AP1124 

31

recovery. Therefore, CMC argues, it is entitled to summary 

judgment as a matter of law. 

¶50 A review of the record suggests the parties 

dispute: (1) whether Murphy stood beneath or to the side of the 

pole as it fell; (2) whether Murphy's hands were outstretched to 

right the pole or on the remote control; (3) how high Murphy 

lifted the pole; (4) where Murphy attached the tongs on the 

pole, relative to the two critical points; and (5) whether 

Murphy conducted a test lift. Because there are these and other 

disputes of material fact, summary judgment is not appropriate. 

¶51 Furthermore, "[a]s a general rule . . . the existence 

of negligence is a question of fact which is to be decided by 

the jury," as are questions of reasonability, and apportionment 

of negligence. Ceplina v. S. Milwaukee Sch. Bd., 73 Wis. 2d 

338, 342, 243 N.W.2d 183 (1976); accord Dottai v. Altenbach, 19 

Wis. 2d 373, 375, 120 N.W.2d 41 (1963) ("It is a rare case when 

summary judgment can be granted in an action grounded on 

negligence"); Schuh v. Fox River Tractor Co., 63 Wis. 2d 728, 

744, 218 N.W.2d 279 (1974) ("Generally, the apportionment of 

negligence is for the jury."). Because there are disputed 

issues of material fact, we affirm the court of appeals in 

reversing summary judgment and remand for further proceedings. 

III. CONCLUSION

¶52 In interpreting Wisconsin's product liability statute 

when the claim is for a defective design, we conclude as 

follows: (1) Wis. Stat. § 895.047(1)(a) requires proof of a 

more safe, reasonable alternative design the omission of which 
No. 2020AP1124 

32

renders the product not reasonably safe; (2) proof that the 

consumer-contemplation standard as set out in § 895.047(1)(b) 

(for strict liability claims for a defective design) has been 

met; and (3) proof that the remaining three factors of a 

§ 895.047(1) claim have been met. The statute's plain language 

is clear in showing that the legislature codified the common law 

consumer-contemplation standard in § 895.047(1)(b). We disagree 

with the court of appeals' conclusion that the legislature 

discarded the consumer-contemplation test by incorporating the 

risk-utility balancing test. We also decline to adopt comment 

f, upon which the court of appeals relied. With a clear 

understanding of the requirements that a plaintiff must 

establish, and considering the multiple genuine disputes of 

material fact, which we have explained above, we affirm the 

court of appeals in reversing summary judgment and remand to the 

circuit court for further proceedings.

By the Court.—The decision of the court of appeals is 

affirmed.
No. 2020AP1124.jjk

1

¶53 JILL J. KAROFSKY, J. (concurring). I agree that 

both Murphy's strict liability design defect claim and common 

law negligence claim survive the motion for summary judgment 

because Murphy has introduced material issues of fact on each of 

the claims' elements.1 However, I write to clarify the 

relationship between Wis. Stat. § 895.047 and the common law, as 

well as the application of that law to the facts of this case.

¶54 I begin my concurrence by laying out the historic 

common law test for a design defect claim, particularly focusing 

on the "defect" and "unreasonably dangerous" elements of the 

claim. Next, I interpret Wis. Stat. § 895.047, which 

establishes the current test for a design defect claim, and 

delineate which aspects of the current test draw from the common 

law. Finally, I apply the elements of the statutory test found 

in § 895.047(1)(a) and (1)(b) to the facts of this case and 

determine, as the majority/lead opinion has, that Murphy has 

established disputed issues of material fact for each element. 

 

1 The majority/lead opinion states that in order to prevail 

on its negligent design claim, Murphy will need to establish the 

elements of a traditional negligence claim. See majority/lead 

op., ¶48. With regard to the "duty" elements, I note that 

Wisconsin has long followed the minority view set forth in the 

dissent of Palsgraph. Rockweit by Donahue v. Senecal, 197 Wis. 

2d 409, 419-20, 541 N.W.2d 742 (1995) (discussing Palsgraph v. 

Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928) (Andrews, 

J. dissenting)). Pursuant to this approach, everyone owes to 

the world at large the duty of exercising ordinary care. 

Hartleberg v. Norwest Bank Wis., 2005 WI 109, ¶17, 283 Wis. 2d 

234, 700 N.W.2d 15. Thus, in Wisconsin, the test is whether the 

"defendant failed to exercise ordinary care and the act or 

omission complained of was the cause of the plaintiff's injury." 

Hoida, Inc. v. M & I Midstate Bank, 2006 WI 69, ¶22, 291 Wis. 2d 

283, 717 N.W.2d 17; see, also Wis JI-Civil 1005.
No. 2020AP1124.jjk

2

I. The Common Law Test

¶55 Prior to 2011, a litigant seeking to prove a design 

defect claim looked to the consumer contemplation test, derived 

from common law, to satisfy two elements of the claim: (1) that 

the design was "defective," and (2) that the product was 

"unreasonably dangerous." See Green v. Smith & Nephew AHP, 

Inc., 2001 WI 109, ¶29, 245 Wis. 2d 772, 629 N.W.2d 727 

("[A]lthough defect and unreasonable danger are distinct 

elements to a claim in strict products liability, both elements 

are based on consumer expectations.").

¶56 To prove a product design "defective" under the 

consumer contemplation test, a litigant was required to show 

that the product was "in a condition not contemplated by the 

ultimate consumer, which will be unreasonably dangerous to him." 

Vincer v. Esther Williams All-Aluminum Swimming Pool Co., 69 

Wis. 2d 326, 330, 230 N.W.2d 794 (1975)(quoting Restatement 

(Second) of Torts § 402A, cmt. g). 

¶57 To prove a product design was "unreasonably dangerous" 

under the consumer contemplation test, a litigant was required 

to show that the product design was "dangerous to an extent 

beyond that which would be contemplated by the ordinary consumer 

who purchases it, with the ordinary knowledge common to the 

community as to its characteristics." Vincer, 69 Wis. 2d at 331 

(quoting Restatement (Second) of Torts § 402A cmt. i).

II. The Current Test

¶58 In 2011 the legislature enacted Wis. Stat. § 895.047. 

This statute retains the common law distinction between the 
No. 2020AP1124.jjk

3

"defect" and "unreasonably dangerous" elements. Importantly, 

this statute also abrogates the consumer contemplation test for 

the "defect" element of the claim. Section 895.047 reads as 

follows:

(1) Liability of Manufacturer. In an action for 

damages caused by a manufactured product based on a 

claim of strict liability, a manufacturer is liable to 

a claimant if the claimant establishes all of the 

following by a preponderance of the evidence:

(a) That the product is defective because it 

contains a manufacturing defect, is defective in 

design, or is defective because of inadequate 

instructions or warnings. . . . A product is 

defective in design if the foreseeable risk of 

harm posed by the product could have been reduced 

or avoided by the adoption of a reasonable 

alternative design by the manufacturer and the 

omission of the alternative design renders the 

product not reasonably safe. . . .

(b) That the defective condition renders the 

product unreasonably dangerous to persons or 

property.

(c) That the defective condition existed at the 

time the product left the control of the 

manufacturer.

(d) That the product reached the user or 

consumer without substantial change in the 

condition in which it was sold.

(e) That the defective condition was a cause of 

the claimant's damages.

¶59 Section (1)(a), the defect element, clearly and 

unambiguously sets out the test for when "[a] product is 

defective in design." Instead of codifying the common law 

consumer contemplation test, the legislature adopted language 

from the Restatement (Third) of Torts that requires "defect" be 
No. 2020AP1124.jjk

4

proved through the submission of a reasonable alternative 

design, the omission of which renders the product not reasonably 

safe. 

¶60 This statutory test for "defect" is incompatible with 

the common law consumer contemplation test. Specifically, the 

statute is silent as to consumer contemplation, while the common 

law test required that the product be in a condition "not 

contemplated" by the consumer. The statute focuses on whether a 

manufacturer adopted a reasonable alternative design, rendering 

a consumer's contemplation of a product's condition irrelevant. 

Clearly, section (1)(a) abrogates the common law with regard to 

the "defect" element. See Wis. Mfrs. and Com. v. Evers, 2022 WI 

38, ¶15, 977 N.W.2d 374 (stating that statutory language that 

establishes a general rule applicable to all relevant claims 

cannot coexist with contrary common law). 

¶61 While section (1)(a) addresses the "defect" element 

and replaces the common law "defect" test, section (1)(b) 

codifies the "unreasonably dangerous" element of the claim and 

remains consistent with the common law consumer contemplation 

test. Under the consumer contemplation test, the "unreasonably 

dangerous" element of a strict liability claim merely defines 

what it means to be "unreasonably dangerous." Because the 

legislature continued using the term "unreasonably dangerous" 

without further definition or explanation, I conclude that the 

common law continues to inform our understanding of that term in 

this context. 

III. Application of the Current Test
No. 2020AP1124.jjk

5

¶62 Having parsed out the two elements of a design defect 

strict liability claim at issue here, I now analyze whether 

Murphy established issues of material fact on both of those 

elements. I do so to further bolster and clarify the 

majority/lead opinion's analysis. Like the majority/lead 

opinion, I conclude Murphy has established issues of material 

fact and his claims must survive summary judgment.

¶63 Under Wis. Stat. § 895.047(1)(a), the "defect" 

element, Murphy is required to show that "the foreseeable risk 

of harm posed by the product could have been reduced or avoided 

by the adoption of a reasonable alternative design by the 

manufacturer and the omission of the alternative design renders 

the product not reasonably safe." To meet his burden, Murphy 

asserts that the Hogg-Davis tongs are a reasonable alternative 

design to the Dixie tongs. Murphy points to his expert witness, 

who testified that the Hogg-Davis tongs have three features that 

reduce the foreseeable risk that a pole will fall from the tongs 

and cause injury. First, Murphy's expert testified that the 

Hogg-Davis tongs have multiple teeth on each side of the device 

which create redundancy in the clamping mechanism. Thus, if one 

tooth slips out of a pole, the other teeth remain embedded. R. 

154, pg 6. This redundancy is particularly important when 

handling weathered and worn poles, which are more likely to slip 

out of a tooth's grasp. Second, Murphy's expert also testified 

that the Hogg-Davis tongs have superior clamping force. R. 116, 

pg 25-28. Third, both Murphy's and CMC's expert discussed that 

the Hogg-Davis tongs include a locking mechanism absent in Dixie 
No. 2020AP1124.jjk

6

tongs that would keep the tongs from opening in the event a 

tooth slips. R. 68, pg 19; R. 118, pg 17-20. According to 

Murphy, these features reduce the foreseeable risk that a pole 

will fall from the tongs, and the omission of these features 

renders Dixie tongs not reasonably safe.

¶64 CMC disputes the claim that Hogg-Davis tongs have 

superior clamping force and questions whether the multiple teeth 

of the Hogg-Davis tongs or the inclusion of the locking 

mechanism actually lead to a lower failure rate. These are 

disputed issues of fact that preclude summary judgment on the 

"defect" element.2

¶65 Under Wis. Stat. § 895.047(1)(b), the "unreasonably 

dangerous" element, Murphy is required to show that "the 

defective condition renders the product unreasonably dangerous 

to persons or property." Murphy offers that lack of redundancy 

makes the Dixie tongs too likely to fail, especially when 

lifting old and weathered poles. Additionally, according to 

Murphy, the inadequate clamping force of the Dixie style tongs 

means the teeth are less likely to fully embed into poles and 

may slip at high rates. Finally, Murphy argues that the absence 

of the Hogg-Davis style locking mechanism allows Dixie tongs to 

dangerously open and drop poles at higher rates than tongs that 

include the additional locking mechanism. This is because the 

 

2 The court of appeals in this case looked to the 

Restatement (Third) of Torts comment (f) to apply the reasonable 

alternative design portion of this test. While it is 

unnecessary to adopt comment (f) in this case, I would not 

foreclose the use of the Restatement's comments, including 

comment (f), as persuasive in future cases.
No. 2020AP1124.jjk

7

only force holding Dixie tongs closed is the downward force of 

the weight of the pole itself——if a tooth slips, the tongs open 

and the pole drops. Murphy contends that these dangers are 

beyond the scope of what an ordinary consumer would expect.

¶66 For a product to be unreasonably dangerous, it must be 

"dangerous to an extent beyond that which would be contemplated 

by the ordinary consumer who purchases it, with the ordinary 

knowledge common to the community as to its characteristics." 

Vincer, 69 Wis. 2d at 331 (quoting Restatement (Second) of Torts 

§ 402A cmt. i). This is an objective test from the perspective 

of a reasonable consumer of pole tongs, here, a utility worker. 

¶67 Given the emphasis on safety procedures in occupations 

like Murphy's, it can be assumed that a reasonable utility 

worker expects a pole lift to be somewhat dangerous. Lift 

failures must be anticipated on some level. However, it is 

unclear whether a reasonable utility worker expects that these 

failures stem only from user error or if utility workers 

reasonably anticipate that the tongs' teeth may slip, even if 

the tongs are placed and used correctly. The potential for grip 

failure when tongs are used correctly may be beyond the scope of 

what an ordinary utility worker would contemplate. CMC's own 

expert appears to say that if tongs (of any style) are attached 

correctly, they should not slip and drop a pole. See R. 118, pg 

19.

¶68 Furthermore, a lift device could still be unreasonably 

dangerous even though lift failures may not be entirely 

avoidable. A lift device that fails at significantly higher 
No. 2020AP1124.jjk

8

rates than other devices may be dangerous beyond the level that 

is contemplated by the consumer. It is not clear from the 

record whether a reasonable utility worker would expect pole 

tongs to fail more often when used on worn and weathered poles. 

Yet there is evidence in the record from Murphy's expert that 

pole tongs do, in fact, fail more often when they are used on 

old and weathered poles. These implicate questions of fact for 

a jury, and thus summary judgment cannot be granted on the 

"unreasonably dangerous" element on this record.

¶69 Although it may be a close call, Murphy has introduced 

evidence that consumers expect pole tongs to grip and hold a 

pole if placed correctly and expect pole tongs to grip and hold 

worn and weathered poles. There is no evidence in the record 

from either side indicating exactly what a utility worker would 

consider to be a reasonable lift failure rate, but Murphy 

contends the failure rate is too high. In summary, a device 

which fails at higher than usual rates or unexpectedly fails 

under certain circumstances may still be dangerous beyond 

consumer expectations. Here, Murphy has raised enough of an 

issue to allow a jury to consider it. 

¶70 As to the final three elements, CMC does not dispute 

that Murphy has met the requirements under (1)(c) or (1)(d), so 

it is unnecessary to analyze those elements further. I agree 

with the majority/lead opinion's analysis of the (1)(e) 

causation element and so do not reproduce that analysis here.

IV. Conclusion
No. 2020AP1124.jjk

9

¶71 In conclusion, Wis. Stat. § 895.047(1)(a) abrogates 

the common law test for what makes a design "defective" in a 

strict liability design defect claim, but (1)(b) retains the 

common law consumer contemplation test for what makes a design 

"unreasonably dangerous." Murphy has established a disputed 

issue of material fact for both of those elements and thus the 

claim must survive CMC's motion for summary judgment.

¶72 I am authorized to state that Justices ANN WALSH 

BRADLEY and REBECCA FRANK DALLET join this concurrence. 

 
No. 2020AP1124.bh

1

¶73 BRIAN HAGEDORN, J. (concurring in part, dissenting 

in part). This case involves a negligence claim and a strict 

liability claim against Columbus McKinnon Corporation (CMC) 

alleging that CMC's Dixie tongs were defectively designed. A 

majority of this court concludes CMC is not entitled to summary 

judgment and sends both claims back to the circuit court. While 

I agree that the negligence claim can proceed, I part ways with 

respect to the strict liability claim. Reviewing the undisputed 

material facts in this case, Matthew Murphy has failed to 

present any evidence establishing that the Dixie tongs were 

unreasonably dangerous under Wis. Stat. § 895.047(1)(b). 

Therefore, I would grant CMC's motion for summary judgment on 

the strict liability claim.

I. WISCONSIN STAT. § 895.047

¶74 In 2011, the legislature modified in part and codified 

in part the common law elements of a strict liability claim 

based on a design defect. See 2011 Wis. Act 2, § 31; Wis. Stat. 

§ 895.047(1). Under the statute, a plaintiff must establish 

each of the following:

(a) That the product is defective because it . . . is 

defective in design . . . . A product is defective in 

design if the foreseeable risks of harm posed by the 

product could have been reduced or avoided by the 

adoption of a reasonable alternative design by the 

manufacturer and the omission of the alternative 

design renders the product not reasonably safe. . . .

(b) That the defective condition rendered the product 

unreasonably dangerous to persons or property.

(c) That the defective condition existed at the time 

the product left the control of the manufacturer.
No. 2020AP1124.bh

2

(d) That the product reached the user or consumer 

without substantial change in the condition in which 

it was sold.

(e) That the defective condition was a cause of the 

claimant's damages.

§ 895.047(1). 

¶75 As the majority/lead opinion notes, the backdrop to 

this enactment was debate in this court over whether we should 

jettison the consumer contemplation test adopted from the 

Restatement (Second) of Torts and instead adopt the reasonable 

alternative design test described in the Restatement (Third) of 

Torts: Products Liability § 2.1 The legislature weighed in and 

created a unique hybrid test via the enactment of Wis. Stat. 

§ 895.047(1). This case focuses on the meaning and application 

of the elements described in paragraphs (a) and (b).

¶76 Paragraph (a) requires two showings. First, a 

plaintiff must prove "the foreseeable risks of harm posed by the 

product could have been reduced or avoided by the adoption of a 

reasonable alternative design by the manufacturer." Wis. Stat. 

§ 895.047(1)(a). Second, a plaintiff must prove "the omission 

of the alternative design renders the product not reasonably 

safe." Id. The reasonable alternative design language is 

copied nearly word for word from the Restatement (Third) of 

 

1 See Green v. Smith & Nephew AHP, Inc., 2001 WI 109, ¶¶122-

34, 245 Wis. 2d 772, 629 N.W.2d 727 (Sykes, J., dissenting) 

(advocating for adoption of Restatement (Third) of Torts: 

Products Liability § 2 as a change from the court's current 

common law test); Godoy ex rel. Gramling 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).
No. 2020AP1124.bh

3

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. 

The parties debate whether we should adopt particular comments 

from the Restatement (Third) of Torts to further clarify the 

meaning of the reasonable alternative design test——comment f in 

particular. But the legislature did not explicitly incorporate 

any particular comments, and we need not do so in order to 

decide this case.3 

¶77 The legislature also created Wis. Stat. 

§ 895.047(1)(b), which requires proof that "the defective 

condition rendered the product unreasonably dangerous to persons 

or property." This is a separate condition, and it contains no 

 

2 The Restatement (Third) of Torts: Products Liability 

§ 2(b) provides: 

A product . . . is defective in design when the 

foreseeable risks of harm posed by the product could 

have been reduced or avoided by the adoption of a 

reasonable alternative design by the seller or other 

distributor, or a predecessor in the commercial chain 

of distribution, and the omission of the alternative 

design renders the product not reasonably safe . . . .

The only difference between the two is that the Restatement 

(Third) focuses on the seller or distributor of the product and 

Wis. Stat. § 895.047(1)(a) focuses on the manufacturer. The 

legislature chose to address the liability of sellers and 

distributers in subsec. (2) of § 895.047 by referencing to the 

same standards for manufacturer liability in subsec. (1). 

3 These comments may very well prove persuasive and useful 

when applying the reasonable alternative design test. We simply 

leave those questions for another day.
No. 2020AP1124.bh

4

reference, direct or indirect, to the Restatement (Third) of 

Torts or any other test. This element was not created out of 

thin air, however. Under our cases, a strict liability design 

defect claim required this very thing: proof that the product 

was unreasonably dangerous. And the test under our common law 

was the consumer-contemplation test. See Vincer v. Esther 

Williams All-Aluminum Swimming Pool Co., 69 Wis. 2d 326, 332, 

230 N.W.2d 794 (1975) (adopting the consumer contemplation test 

to determine if a product was unreasonably dangerous). Without 

any textual evidence of a departure from the common law, this 

statutory addition is best read as codifying the common law test 

to determine whether a product is unreasonably dangerous.4

¶78 Finally, of particular relevance in this case, the 

legislature's modifications to the test for strict liability 

explicitly exempted application to negligence claims. See Wis. 

Stat. § 895.047(6) ("This section does not apply to actions 

based on a claim of negligence or breach of warranty."). 

Therefore, the ordinary principles of common law negligence 

remain unaltered by these legislative changes. 

II. APPLICATION

¶79 Murphy advances two claims against CMC for its 

allegedly defective design of Dixie tongs: negligence and 

 

4 Another tricky question we leave for another day concerns 

the proper test for determining whether "the omission of the 

alternative design renders the product not reasonably safe" 

under Wis. Stat. § 895.047(1)(a), and to what degree daylight 

exists between a product that is "not reasonably safe" under 

para. (a) and "unreasonably dangerous" under para.(b). 
No. 2020AP1124.bh

5

strict liability. With respect to Murphy's negligence claim, 

CMC does not develop separate arguments based on traditional 

negligence principles. Therefore, its summary judgment motion 

on the negligence claim fails. But CMC does maintain that 

Murphy has presented insufficient evidence on his strict 

liability claim to survive summary judgment. To that, I now 

turn.

¶80 The parties in this case focused largely on the proper 

law we should apply, and in that vein, the briefs gave most of 

their attention to the reasonable alternative design requirement 

in Wis. Stat. § 895.047(1)(a). However, after reviewing the 

record, I conclude that Murphy has failed to marshal any 

evidence that the Dixie tongs are unreasonably dangerous under 

Wis. Stat. § 895.047(1)(b). For that reason, CMC is entitled to 

summary judgment on its strict liability claim.5

¶81 Once again, to determine if a product is unreasonably 

dangerous under Wis. Stat. § 895.047(1)(b), we look to the 

common law consumer contemplation test. We have described that 

test as follows:

[W]hether a product contains an unreasonably dangerous 

defect depends upon the reasonable expectations of the 

ordinary consumer concerning the characteristics of 

this type of product. If the average consumer would 

reasonably anticipate the dangerous condition of the 

product and fully appreciate the attendant risk of 

injury, it would not be unreasonably dangerous and 

 

5 "Summary judgment is appropriate when there is no genuine 

issue of material fact and 'the moving party is entitled to 

judgment as a matter of law.'" Quick Charge Kiosk LLC v. Kaul, 

2020 WI 54, ¶9, 392 Wis. 2d 35, 944 N.W.2d 598 (quoting Wis. 

Stat. § 802.08(2)).
No. 2020AP1124.bh

6

defective. This is an objective test and is not 

dependent upon the knowledge of the particular injured 

consumer, although his knowledge may be evidence of 

contributory negligence under the circumstances.

Vincer, 69 Wis. 2d at 332. 

¶82 This framework calls attention to the end-user of the 

product. The product in this case is not designed for 

homeowners building a backyard shed or children tinkering with 

Tonka trucks. The Dixie tongs at issue here are designed to 

lift and move poles weighing up to 2,500 pounds in highly 

specialized construction work. This is no average consumer 

product. The consumer contemplation test in this case therefore 

must focus on the objective awareness and knowledge of the 

specially trained workers who use this product. See id. at 331 

("The article sold must be dangerous to an extent beyond that 

which would be contemplated by the ordinary consumer who 

purchases it, with the ordinary knowledge common to the 

community as to its characteristics." (quoting Restatement 

(Second) of Torts, § 402A cmt. i)).6 The question, therefore, is 

what a specialist like Murphy would reasonably understand 

concerning the danger of using this product. No one doubts that 

lifting and moving massive poles is fraught with danger. But 

the risk of danger or even death does not mean that a product is

unreasonably dangerous to the end-user. If mere danger 

sufficed, every chainsaw, extension ladder, and construction 

 

6 Accord Kaiser v. Johnson & Johnson, 947 F.3d 996, 1002, 

1014 (7th Cir. 2020) (noting that for purposes of determining if 

a transvaginal mesh medical device is unreasonably dangerous 

under Indiana law "the relevant consumers here are pelvic-floor 

surgeons"). 
No. 2020AP1124.bh

7

vehicle would qualify. That is not the law. The test requires 

that we ask whether the end-user of the product would 

"reasonably anticipate the dangerous condition of the product 

and fully appreciate the attendant risk of injury." Id. at 332. 

If so, even a dangerous product is not unreasonably dangerous 

under our common law, and by extension, under Wis. Stat. 

§ 895.047(1)(b). 

¶83 So we turn to the evidence offered to see whether 

there is any evidence from which a jury could find the Dixie 

tongs are unreasonably dangerous based on the expectations of 

the someone like Murphy——a line technician who is trained to use 

these types of pole-lifting products. Murphy argues that the 

Dixie tongs are unreasonably dangerous because the tongs only 

have two points of contact and therefore do not have a 

redundancy. Murphy also notes that CMC knew: (1) the Dixie 

tongs were used to lift poles; (2) the attendant danger that a 

dropped pole could kill or injure someone; and (3) that workers 

guide poles with one hand while using the Dixie tongs. Murphy's 

expert, John DeRosia, stated in his report, 

If a single failure occurs, i.e., the grip of a tooth 

on one side of the tongs, the tongs will no longer 

grasp the pole which will fall with potentially 

dangerous consequences. Other than the engagement of 

the teeth the tongs do not have a mechanism to capture 

the pole.[7] 

 

7 CMC asks us to disregard DeRosia's expert testimony as 

untested speculation. This is, in effect, a request for the 

court to rule on its Daubert motion that remains pending before 

the circuit court. See Daubert v. Merrell Dow Pharm., Inc., 509 

U.S. 579 (1993). I agree with the majority/lead opinion that we 

should not address this issue because it is not properly before 

us.
No. 2020AP1124.bh

8

DeRosia continued that this "problem is exacerbated with wooden 

poles that are weathered" and that in order to manipulate the 

pole while lifting it, the "worker is in close proximity to the 

pole." 

¶84 This evidence, if proven, may demonstrate that the 

Dixie tongs could have perilous consequences should something go 

wrong or that the design could have been improved. But it is 

insufficient to demonstrate that the Dixie tongs are 

unreasonably dangerous based on the expectations and dangers the 

end-user would reasonably expect. Notably, none of this 

evidence addresses the expectations of line technicians like 

Murphy who use the Dixie tongs. The average user of Dixie tongs 

would undoubtedly appreciate the inherent danger posed by their 

use. As DeRosia notes, Dixie tongs are advertised for overhead 

lifting of logs and poles. The summary judgment record reflects 

that Murphy received extensive safety training on how to 

properly use Dixie tongs; the danger of error would not be lost 

on him or others using the product. The record further reflects 

that CMC is not aware of anyone else who has been injured while 

using Dixie tongs. It is not investigating any alleged 

incidents nor are there any other lawsuits relating to Dixie 

tongs. During his deposition, DeRosia also testified that he 

had not investigated a single prior incident where someone was 

injured while using the Dixie tongs. In short, while Murphy 

introduced evidence of the inherent risk of danger, he produced 

nothing from which a reasonable juror could conclude that Dixie 
No. 2020AP1124.bh

9

tongs are unreasonably dangerous based on the objective and 

known risks to someone who uses them. 

¶85 The majority/lead opinion disagrees. It states that 

because "Murphy was not lifting a load beyond the tongs' rated 

maximum, and that the tongs are advertised for lifting poles, 

and certified for overhead lifting, he provided evidence that an 

ordinary consumer would not anticipate anything more than the 

inherent dangers of working with a heavy, suspended load." 

Majority op., ¶46. This argument is difficult to follow. It 

does not say anything about what an ordinary user of the product 

would reasonably anticipate other than that the product contains 

inherent dangers. But as already explained, that's not the test 

under Wis. Stat. § 895.047(1)(b). 

¶86 The concurrence reaches the same conclusion but for 

different reasons. It relies on the absence of evidence to 

conclude summary judgment is improper. For example, the 

concurrence points to the fact that the record is unclear with 

respect to "whether a reasonable utility worker would expect 

pole tongs to fail more often when used on worn and weathered 

poles." Concurrence, ¶68. And it relies on the fact that there 

is no evidence "indicating exactly what a utility worker would 

consider to be a reasonable lift failure rate." Id., ¶69. But 

on summary judgment, Murphy must offer some evidentiary basis to 

counter the undisputed evidence that Dixie tongs are not 

unreasonably dangerous. The fact that Murphy has failed to do 

so is precisely why CMC's motion for summary judgment should be 

granted. 
No. 2020AP1124.bh

10

III. CONCLUSION

¶87 In order to prevail on his strict liability claim, 

Murphy must establish all of the requirements of Wis. Stat. 

§ 895.047(1). The undisputed material facts in the record show 

that the Dixie tongs are not unreasonably dangerous as a matter 

of law under § 895.047(1)(b). Accordingly, summary judgment 

should be granted to CMC on Murphy's strict liability claim. I 

respectfully dissent from the court's resolution of the strict 

liability claim, but concur with its conclusion on Murphy's 

negligence claim.

¶88 I am authorized to state that Chief Justice ANNETTE 

KINGSLAND ZIEGLER and Justice REBECCA GRASSL BRADLEY join this 

concurrence/dissent.
No. 2020AP1124.bh

1