Matthew W. Murphy v. Columbus McKinnon Corporation

(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.").

                                12
                                                                     No.    2020AP1124



       ¶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      All-

Aluminum Swimming Pool Co.,

69 Wis. 2d 326, 332


(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."

     The test is

objective and not dependent on a particular injured consumer's

knowledge.

     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."

    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

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,

     (quoting
                                            13
                                                                           No.     2020AP1124



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

reaffirmed       that     "Wisconsin       is   committed        to     the       consumer-

contemplation       test     for       determining       whether       a     product        is

defective."       Sumnicht v. Toyota Motor Sales, U.S.A., Inc.,

121 Wis. 2d 338, 368

360 N.W.2d 2

   (1984);     see       also       Green,

245 Wis. 2d 772, ¶46

.

    ¶22     As    the     law     in    products     liability         developed,          the

American    Law    Institute       introduced      the   Restatement             (Third)    of

Torts:    Products Liability, in 1998.               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

768 N.W.2d 674

.                    CMC has argued that § 2(b)


                                           14
                                                                     No.     2020AP1124



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,

, 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

       See also Haase v. Badger Mining Corp.,

2004 WI 97, ¶23

,
       16

274 Wis. 2d 143

682 N.W.2d 389

 (declining to adopt Restatement
(Third) of Torts § 5).

       The parties point out that despite the fact that four
       17

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

768 N.W.2d 674

; Horst v. Deere & Co.,

2009 WI 75

319 Wis. 2d 147

769 N.W.2d 536

.

                                          15
                                                                       No.    2020AP1124



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' risk-

utility test as complete replacement of the common law consumer-

contemplation 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.
                                          16
                                                                           No.    2020AP1124



       ¶28       We conclude, as we explain below,

Wis. Stat. § 895.047


remains loyal to Wisconsin's roots in the common law consumer-

contemplation 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


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

comments with a total of 11,000 words.     See also Restatement
(Third) of Torts § 2.

                                              17
                                                               No.   2020AP1124



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


                                   18
                                                                                  No.    2020AP1124



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

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

This section does not apply to actions based on a claim of
negligence or breach of warranty."

                                                 19
                                                                          No.      2020AP1124



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
                                             20
                                                                        No.     2020AP1124



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


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

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
                                            21
                                                                     No.   2020AP1124



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

.
     21As 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-
                                        22
                                                                           No.     2020AP1124



    ¶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     consumer-

contemplation test from this state's common law.                                  See e.g.,

Dippel,

37 Wis. 2d 443

;    Vincer,

69 Wis. 2d 326

;       Green,

.         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.

                                              23
                                                          No.    2020AP1124



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).

                                    24
                                                                          No.     2020AP1124



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


       While
       23      Dippel,

37 Wis. 2d 443

,   establishes  five
requirements for a product liability claim under § 402A, and

Wis. Stat. § 895.047

(1) also enumerates five requirements, the
statute tracks the following changes: First, § 895.047(1) 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.

                                            25
                                                  No.   2020AP1124



pre-2011 continues to provide persuasive authority in products

liability cases.24




     24The 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)).

                               26
                                                                       No.    2020AP1124



                                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."

     Any factual dispute will not

necessarily preclude summary judgment, only disputes of material

fact will do so.

        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,
27
No. 2020AP1124

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.

                                              28
                                                                     No.     2020AP1124



    ¶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,

.               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.

                                          29
                                                                                 No.      2020AP1124



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

Whether the pole would have fallen from an alternative
28

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

30
No. 2020AP1124

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
                                                    31
                                                                             No.     2020AP1124



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.




                                                  32
                                                                           No.      2020AP1124.jjk


       ¶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.


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

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.

                                             1
                                                                              No.   2020AP1124.jjk


                              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

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

    (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,


(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

2
No. 2020AP1124.jjk

"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.

(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
3
No. 2020AP1124.jjk

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

4
No. 2020AP1124.jjk

¶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

5
No. 2020AP1124.jjk

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.

                                             6
                                                                          No.    2020AP1124.jjk


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,

(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

7
No. 2020AP1124.jjk

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

8
No. 2020AP1124.jjk

¶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.




                                      9
                                                                No.   2020AP1124.bh


    ¶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.
                               1
                                                             No.    2020AP1124.bh

    (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,

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

768 N.W.2d 674

 (Prosser, J., concurring) (same); Horst v. Deere &
Co.,

2009 WI 75, ¶¶87-104

319 Wis. 2d 147

769 N.W.2d 536

(Gableman, J., concurring) (same).

                                      2
                                                                     No.   2020AP1124.bh


Torts:      Products Liability § 2(b).2            This was, quite consciously,

a   legislative      policy    decision       to    depart    from     the    consumer

contemplation       test   this   court       borrowed      from   the     Restatement

(Second) of Torts and embrace the reasonable alternative design

test from the Restatement (Third) of Torts——at least in part.

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

      2The 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).
      3These comments may very well prove persuasive and useful
when applying the reasonable alternative design test. We simply
leave those questions for another day.

                                          3
                                                                              No.    2020AP1124.bh


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