Two Electrical Linemen, Harnessed Atop A Power Pole, Silhouetted Against The Sun

Jan. 2, 2023 – The Wisconsin Supreme Court has for the first time interpreted a key provision of the 2011 state products liability statute.


Murphy v. Columbus McKinnon Corporation,
2022 WI 109 (Dec. 28, 2022), the supreme court held (4-3) that in enacting the 2011 law, the legislature retained the consumer-contemplation test for determining whether a product is defective.

Justice Patience Roggensack wrote the majority opinion, joined by Justice Ann Walsh Bradley, Justice Rebecca Dallet, and Justice Jill Karofsky (except for paragraphs 38 and 41).

Justice Karofsky wrote a concurring opinion, joined by Justice A.W. Bradley and Justice Dallet. Justice Brian Hagedorn wrote an opinion concurring in part and dissenting in part, joined by Chief Justice Annette Ziegler and Justice Rebecca Bradley.

Injured Using Dixie Tongs

In May 2013, Matthew Murphy, a line technician, suffered serious injuries when using a truck-mounted boom winch and Dixie tongs to load used utility poles onto a trailer.

Dixie tongs have two pointed prongs that close, scissors-like, as the boom lifts the pole; the resulting force drives the point of each tong deeper into the pole.

Another type of tongs, Hogg-Davis tongs, include three teeth on the inside of each side of their tongs. Consequently, when Hogg-Davis tongs close around a pole, they provide six surface contacts during lifting.

On the day he was injured, Murphy attached the Dixie tongs to a wood utility pole, which had become hardened after years of weathering. After Murphy hoisted the pole into the air, the pole got loose from the tongs and slammed into Murphy.

The Dixie tongs used by Murphy when he was injured were manufactured by Columbus McKinnon Corporation (CMC).

Lawsuit and Long Discovery 

Murphy filed a products liability lawsuit against CMC in Sauk County Circuit Court.

Murphy alleged a strict product liability claim under
Wis. Stat. section 895.047(1) and a common law claim of negligent design. He claimed that the Hogg-Davis tongs provided a safe alternate design.

After two years of discovery, the circuit court granted summary judgment for CMC. Murphy appealed.

The Wisconsin Court of Appeals affirmed in part and reversed in part. CMC appealed.

Battle of Meaning of 2011 Law  

Before the supreme court, CMC argued that by enacting section 895.047(1), the legislature had adopted the risk-utility test for determining whether a product is defective as that test is set forth in the Restatement (Third) of Torts.

Murphy, however, argued that the legislature in enacting section 895.047(1) had instead retained: 1) the common-law consumer-contemplation test for determining whether a product is defective; and 2) the common-law distinction between strict liability and negligence claims for product liability actions.

The wording from section 895.047(1)(A)(a) that CMC argued established the risk-utility test reads as follows: “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.”

Legislature Didn’t Adopt Restatement Test   

In her opinion for the majority, Justice Roggensack acknowledged that the wording of section 895.047(1)(a) matched verbatim the wording of subsections 2(a)-(c) of the Restatement (Third).

But the statute lacked any express wording from the legislature directing courts to apply the risk-utility test from the Restatement (Third), she pointed out.

“Regardless of where the language that was employed in Wis. Stat. section 895.047(1)(a) originated, the legislature left no further direction that the statute should be interpreted by superimposing extra-statutory language,” Justice Roggensack wrote.

“Stated otherwise, we will not read Restatement language … into a statute, simply because the legislature selectively adopted some wording from the Restatement.”

Consequently, Roggensack wrote, subsections (b)-(e) of section 895.047(1) “codify the common law Wisconsin courts have developed and applied for decades.”

Additionally, Justice Roggensack noted that section 895.047(6) retained the criteria for negligence and breach of warranty claims long-established under Wisconsin common law. Furthermore, she wrote, in enacting section 895.046(1g), the legislature specified that in enacting the 2011 law “was in part ‘to return tort law to its historical, common law roots.’”

Summary Judgment Standard Not Met

Justice Roggensack concluded that under the consumer-contemplation test, Murphy had demonstrated that sufficient disputes of material fact existed and summary judgment for CMC was not warranted.

Murphy’s expert witness had written a report that supported Murphy’s theory that the Hogg-Davis tongs would have lessened the foreseeable risk posed by a utility pole tilting while it was hoisted, Justice Roggensack noted, and the expert had also opined that the defective design of the Dixie tongs was a cause of Murphy’s injuries.

Additionally, Roggensack explained, Murphy had given evidence that an ordinary consumer wouldn’t expect any danger beyond an inherent danger when using the Dixie tongs to lift the utility poles:

·       The pole that injured Murphy was within the tongs’ rated maximum load;

·       the tongs were advertised for lifting poles; and

·       the tongs were certified for overhead lifting.

Concurrence: Consumer Contemplation Test Remains

In her concurrence, Justice Karofsky wrote that section 895.047(1)(a) “focuses on whether a manufacturer adopted a reasonable alternative design, rendering a consumer’s contemplation of a product’s condition irrelevant.”

However, she reasoned, section 895.047(1)(b) codified the “unreasonably dangerous” element of the common law’s products liability test and was consistent with the consumer contemplation test.

Dissent: Majority Misapplied Test

In his dissent, Justice Hagedorn agreed with the majority that in enacting section 895.047, the legislature had created a hybrid test for assessing claims of design defects in products liability cases.

But Hagedorn argued that the majority had misapplied the consumer contemplation test to Murphy’s case. The Dixie tongs, given their specialized use, were no ordinary consumer product, Justice Hagedorn argued.

“While Murphy introduced evidence of the inherent risk of danger, he produced nothing from which a reasonable juror could conclude that Dixie tongs are unreasonably dangerous based on the objective and known risks to someone who uses them,” Hagedorn wrote.