895.047(1)(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:
895.047(1)(a)
(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 contains a manufacturing defect if the product departs from its intended design even though all possible care was exercised in the manufacture of the product. 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. A product is defective because of inadequate instructions or warnings only if the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.
895.047(1)(b)
(b) That the defective condition rendered the product unreasonably dangerous to persons or property.
895.047(1)(c)
(c) That the defective condition existed at the time the product left the control of the manufacturer.
895.047(1)(d)
(d) That the product reached the user or consumer without substantial change in the condition in which it was sold.
895.047(1)(e)
(e) That the defective condition was a cause of the claimant's damages.
895.047(2)
(2) Liability of seller or distributor. 895.047(2)(a)(a) A seller or distributor of a product is not liable based on a claim of strict liability to a claimant unless the manufacturer would be liable under sub.
(1) and any of the following applies:
895.047(2)(a)1.
1. The claimant proves by a preponderance of the evidence that the seller or distributor has contractually assumed one of the manufacturer's duties to manufacture, design, or provide warnings or instructions with respect to the product.
895.047(2)(a)2.
2. The claimant proves by a preponderance of the evidence that neither the manufacturer nor its insurer is subject to service of process within this state.
895.047(2)(a)3.
3. A court determines that the claimant would be unable to enforce a judgment against the manufacturer or its insurer.
895.047(2)(b)
(b) The court shall dismiss a product seller or distributor as a defendant based on par.
(a) 2. if the manufacturer or its insurer submits itself to the jurisdiction of the court in which the suit is pending.
895.047(3)(a)
(a) If the defendant proves by clear and convincing evidence that at the time of the injury the claimant was under the influence of any controlled substance or controlled substance analog to the extent prohibited under s.
346.63 (1) (a), or had an alcohol concentration, as defined in s.
340.01 (1v), of 0.08 or more, there shall be a rebuttable presumption that the claimant's intoxication or drug use was the cause of his or her injury.
895.047(3)(b)
(b) Evidence that the product, at the time of sale, complied in material respects with relevant standards, conditions, or specifications adopted or approved by a federal or state law or agency shall create a rebuttable presumption that the product is not defective.
895.047(3)(c)
(c) The damages for which a manufacturer, seller, or distributor would otherwise be liable shall be reduced by the percentage of causal responsibility for the claimant's harm attributable to the claimant's misuse, alteration, or modification of the product.
895.047(3)(d)
(d) The court shall dismiss the claimant's action under this section if the damage was caused by an inherent characteristic of the product that would be recognized by an ordinary person with ordinary knowledge common to the community that uses or consumes the product.
895.047(3)(e)
(e) A seller or distributor of a product is not liable to a claimant for damages if the seller or distributor receives the product in a sealed container and has no reasonable opportunity to test or inspect the product. This paragraph does not apply if the seller or distributor may be liable under sub.
(2) (a) 2. or
3. 895.047(4)
(4) Subsequent remedial measures. In an action for damages caused by a manufactured product based on a claim of strict liability, evidence of remedial measures taken subsequent to the sale of the product is not admissible for the purpose of showing a manufacturing defect in the product, a defect in the design of the product, or a need for a warning or instruction. This subsection does not prohibit the admission of such evidence to show a reasonable alternative design that existed at the time when the product was sold.
895.047(5)
(5) Time limit. In any action under this section, a defendant is not liable to a claimant for damages if the product alleged to have caused the damage was manufactured 15 years or more before the claim accrues, unless the manufacturer makes a specific representation that the product will last for a period beyond 15 years. This subsection does not apply to an action based on a claim for damages caused by a latent disease.
895.047(6)
(6) Inapplicability. This section does not apply to actions based on a claim of negligence or breach of warranty.
895.047 History
History: 2011 a. 2.
895.047 Annotation
Allegations that a defendant was negligent because it selected and applied a mortar that was not appropriate for the context in which it was used did not give rise to a product liability claim because the plaintiffs did not allege that the defendant manufactured or sold a defective product. Wascher v. ABC Insurance Co.,
2022 WI App 10,
401 Wis. 2d 94,
972 N.W.2d 162,
20-1961.
895.047 Annotation
When a claim is for defective design: 1) sub. (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 standard as set out in sub. (1) (b) for strict liability claims for a defective design has been met; and 3) proof that the remaining three factors of a sub. (1) claim have been met. Murphy v. Columbus McKinnon Corp.,
2022 WI 109,
405 Wis. 2d 157,
982 N.W.2d 898,
20-1124.
895.047 Annotation
While sub. (1) (a) appears to borrow language from section 2 of the Restatement (Third) of Torts, the legislature did not adopt the entirety of section 2, nor did it enact the Restatement's voluminous comments. The plain language of sub. (1) (a) is clear, and the court interprets it by its plain language. Regardless of where the language originated, the court will not read Restatement language or comments into the statute, simply because the legislature selectively adopted some wording from the Restatement. Murphy v. Columbus McKinnon Corp.,
2022 WI 109,
405 Wis. 2d 157,
982 N.W.2d 898,
20-1124.
895.047 Annotation
Sub. (1) (b), (c), (d), and (e) codify the common law Wisconsin courts have developed and applied for decades, including the common law consumer-contemplation standard in sub. (1) (b).
Vincer,
69 Wis. 2d 326 (1975), 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. Murphy v. Columbus McKinnon Corp.,
2022 WI 109,
405 Wis. 2d 157,
982 N.W.2d 898,
20-1124.
895.047 Annotation
Sub. (6) specifically maintains the criteria for claims of negligence and breach of warranty, claims well-grounded in Wisconsin common law. Murphy v. Columbus McKinnon Corp.,
2022 WI 109,
405 Wis. 2d 157,
982 N.W.2d 898,
20-1124.
895.047 Annotation
The presumption of nondefectiveness codified in sub. (3) (b) does not shift the burden of proof from one party to another. Instead, the presumption is the legal mechanism for according a product's compliance with certain government standards special weight in the factfinder's ultimate determination whether the product is defective. Vanderventer v. Hyundai Motor America,
2022 WI App 56,
405 Wis. 2d 481,
983 N.W.2d 1,
20-1052.
895.047 Annotation
Sub. (3) (b) is silent regarding what evidence a plaintiff may introduce to rebut the presumption. In this case, the court admitted evidence of 85 recalls involving the defendant's vehicles and components other than the driver's seat at issue in the case. The recall evidence tended to show that vehicles that comply with Federal Motor Vehicle Safety Standards could nonetheless have safety-related defects. This, in turn, could have supported an inference that the subject vehicle's satisfaction of those standards was not especially strong evidence that its driver's seat was not defective. Thus, the court did not exceed its discretion in concluding that recalls related to other vehicles and components carried some probative value on the issue. Vanderventer v. Hyundai Motor America,
2022 WI App 56,
405 Wis. 2d 481,
983 N.W.2d 1,
20-1052.
895.047 Annotation
To prove the existence of a reasonable alternative design under sub. (1) (a), a plaintiff need not produce an actual prototype of a reasonable design alternative, nor does a plaintiff have to show that the alternative design was ever adopted by a manufacturer or considered for commercial use. Instead a plaintiff may rely on credible expert testimony that the alternative design could have been practically adopted as of the time of sale. In addition, other products already available on the market may serve as reasonable alternatives to the product in question. Vanderventer v. Hyundai Motor America,
2022 WI App 56,
405 Wis. 2d 481,
983 N.W.2d 1,
20-1052.
895.047 AnnotationWisconsin's codification under
2011 Wis. Act 2 of its product liability law generally did not supersede the common law. Janusz v. Symmetry Medical Inc.,
256 F. Supp. 3d 995 (2017).
895.047 Annotation
The contract specification defense does not apply to a claim of strict liability under Wisconsin law. Under the contract specification defense, a manufacturer that makes a product strictly in accordance with the design specifications of another is not liable in negligence unless the specifications are so obviously defective and dangerous that a contractor of reasonable prudence would have been put on notice that the product is dangerous and likely to cause injury. The contract specification defense significantly undermines the policies underlying strict liability. Therefore, the defense does not exist under Wisconsin law. Janusz v. Symmetry Medical Inc.,
256 F. Supp. 3d 995 (2017).
895.047 Annotation
A manufacturer of a component that is incorporated into a larger product is not necessarily strictly liable should the larger product prove defective. A component manufacturer is strictly liable only if the injury is directly attributable to a defect in the component and there was no change in the component that was merely incorporated into something larger. But when the component part is subject to further proceeding or substantial change, or when the causing of injury is not directly attributable to defective construction of the component part, the result might be different. The Wisconsin legislature explicitly codified this common law requirement under sub. (1) (d). Janusz v. Symmetry Medical Inc.,
256 F. Supp. 3d 995 (2017).
895.047 Annotation
Sellers and distributors are liable under sub. (2), not because of any particular activity on their part, but because they are proxies for absent manufacturers. This structure suggests that, in the absence of the manufacturer, the entity responsible for getting the defective product into Wisconsin is liable. In this case, the defendant did not own the product sold to the plaintiff, but, for products sold under the defendant's “Fulfillment by Amazon" program, the defendant otherwise served all the traditional functions of both retail seller and wholesale distributor. Thus, when the defendant provided order fulfillment services through the program, the defendant was properly considered a seller for purposes of Wisconsin strict product liability law for products sold by third parties through the defendant's website. State Farm Fire & Casualty Co. v. Amazon.com, Inc.,
390 F. Supp. 3d 964 (2019).
895.047 Annotation
The Wisconsin Constitution's guarantee to due process prohibits retroactive application of this section in this case. Nelson v. Johnson & Johnson,
428 F. Supp. 3d 1 (2019).
895.047 Annotation
This section alters the way in which a plaintiff proves a strict products liability claim. It essentially changes the elements and redefines a defectively-designed product. Implicit in the language of sub. (1) (a) is the rule that an inherently dangerous product for which there is no safer alternative cannot be found unreasonably dangerous. Sub. (1) (a) thus imposes new burdens on a plaintiff by requiring that the plaintiff prove foreseeability and that a reasonable alternative design exists and should have been adopted by the manufacturer. Nelson v. Johnson & Johnson,
428 F. Supp. 3d 1 (2019).
895.047 Annotation
Wisconsin Is Open for Business or Business Just as Usual? The Practical Effects and Implications of
2011 Wisconsin Act 2. Irgens. 2012 WLR 1245.
895.047 Annotation
A New Era: Products Liability Law in Wisconsin. Edwards & Ozalp. Wis. Law. July 2011.
