Decisions leave design defect law in limbo

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In 2001, then-Justice Diane S. Sykes wrote a dissent, arguing that the Wisconsin Supreme Court should scrap its standard for determining when a product was defectively designed. Green v. Smith & Nephew AHP, Inc. 2001 WI 109, 245 Wis.2d 772, 629 N.W.2d 727.

Only Justice David T. Prosser joined that dissent.

Sykes may have left the court, but now, four justices agree with her dissent. Nevertheless, the law remains the same.

The court decided two product liability cases on July 14, but in each, one of those four justices in favor of change recused herself. Thus, neither case produced a majority to actually change the standard. So, Green remains valid law.

The issue is whether Wisconsin should continue to adhere to the consumer contemplation test articulated in the Restatement (Second) of Torts (1965), or if it should adopt the standard in the Restatement (Third) of Torts (1998).

In one of the cases, Godoy v. E.I. du Pont de Nemours & Co., Prosser wrote in favor of the Restatement (Third), in a concurrence, “Restatement (Third)’s risk-utility balancing approach flows from the premise that risks must be foreseeable in order for the manufacturer to protect against them. … Holding manufacturers liable for defective design based on ‘the foreseeable risks of harm posed by the product’ promotes efficient investment in product safety and avoids the risk of recklessly eliminating entire product lines as a result of a hidden or undiscoverable design risk…”

That concurrence was joined by Justices Annette Kingsland Ziegler and Michael J. Gableman. Justice Patience Drake Roggensack did not participate in the case.

However, Chief Justice Shirley S. Abrahamson, and Justices Ann Walsh Bradley and N. Patrick Crooks declined to either adopt or reject the rule.

“The parties in this case argued that this case could be resolved on the basis of existing Wisconsin law, and we have done so,” Crooks wrote. “We should address the question of adopting Restatement (Third) sec. 2(b) when a case arises in which one of the parties asks us to do so and not before. We need briefing and oral arguments before deciding to make a sea change in Wisconsin law — one that could result in throwing out forty-two years of precedent.”

In the second case, Horst v. Deere & Co., Roggensack participated, but Ziegler did not (she was the trial court judge in the case before joining the court).

Gableman wrote a concurrence joined by Prosser and Roggensack, arguing in favor of adopting risk-utility balancing.

“The more predictable standards in the Restatement (Third) will promote the efficient implementation of safety precautions better than the less predictable consumer contemplation test because the risks are, by definition, foreseeable and reasonably preventable,” Gableman explained.

Again, however, Abrahamson, Bradley, and Crooks argued against any change without full briefing and oral arguments on the issue.

Lead Paint

In the Godoy case, a child injured by ingesting lead paint brought suit against the manufacturers of white lead carbonate pigment, an ingredient in lead paint.

The Supreme Court unanimously ruled in favor of the defendants. The majority opinion, by Bradley, concluded that, because white lead carbonate pigment necessarily contains lead, it cannot be a design defect to include it; omitting the lead would not be an alternative design, but a different product.

“Foil can be made using ingredients other than aluminum — gold, for example — but aluminum foil cannot be made without aluminum,” Bradley.

Bradley then wrote a concurrence to her own lead opinion criticizing the Prosser concurrence, which urged adoption of the Restatement (Third).

“Forty-two years of judicial analysis should not be thrown down the tubes without the benefit of briefing or argument by the parties,” Bradley wrote.

Bystanders

In the Horst case, the issue actually decided by the court was whether an injured bystander could recover when a product is unreasonably dangerous only to bystanders, but not dangerous to users.

A child was injured when his father was mowing his lawn with the mower in reverse. The plaintiff contended that the mower’s design was negligent by allowing the operator to mow in reverse with the mower blades in motion.

The lead opinion by Gableman applied the test from the Restatement (Second), which provides that a design is defective only if it is dangerous to the user. Because the mower was not, the court ruled that summary judgment was properly granted the manufacturer.

However, like Bradley in Godoy, Gableman wrote a concurrence to his own lead opinion, arguing in favor of the Restatement (Third).

The cases are Godoy v. E.I. du Pont de Nemours & Co., No. 2006AP2670 and Horst v. Deere & Co., 2006AP2933.