*1 Plaintiff-Respondent, Linda M. Green,
v.
Nephew
AHP, Inc.,
Nephew
Smith &
a/k/a
&
Smith
Perry, Defendant-Appellant-Petitioner.
Supreme Court
February 27,
argument
2001. Decided
No. 98-2162. Oral
July
An amicus curiae brief was filed O. Thomas Armstrong Brady Quarles & LLP, Milwaukee, Mary Wells, Brooks, L. Jr., A. Michael Wells, Hugh LLC, & Denver, Anderson Race CO, and F. Young, Jr., VA, Reston, on behalf of the Product Liabil- ity Advisory Council, Inc. WILCOX, 1. JON P. J. case This arises from a
products (Green) brought by claim Linda M. Green (S&N). against Nephew Smith & AHP, Inc. alleged Green that S&N manufactured defective and unreasonably dangerous gloves, latex medical which injuries arising allergic caused her to suffer from reac- proteins gloves. Accordingly, tions to the in those strictly claimed, Green S&N be should held liable injuries. these
¶ 2. At claim, the close of the trial on Green's jury against returned a verdict in favor of Green and County Judge S&N. The Court, Milwaukee Circuit judgment Kahn, Jr., Charles F. entered on the verdict. subsequently appealed, appeals S&N but the court of judgment entirety. affirmed the circuit court in its Nephew App AHP, Inc., Green v. 192, Smith & 2000 WI 2d 238 Wis. N.W.2d argues jury
¶ 3. S&N now to this court that the consequently, judgment and, verdict the circuit court appeals affirming and court of decision verdict legal were the result four distinct errors. S&N thus (1) presents four issues for review: Did the circuit court instructing err that a can deemed *9 unreasonably dangerous solely based on defective and (2) product? expectations the about that Did consumer instructing product jury the that a circuit court err unreasonably dangerous can be deemed defective and regardless the of that ofwhether manufacturer of the of harm the knew could have known risk (3) jury product presented to consumers? Could the gloves properly that S&N's were defective and find unreasonably dangerous where the evidence intro- gloves a at trial that the contained duced showed allergic an reaction in 5 to 17 substance that causes (4) percent Did circuit court err of their consumers? the admitting opinion regarding certain evidence safety gloves? of S&N's Upon presented S&N, review of the 4. issues First, the circuit court did not
we conclude as follows. instructing jury a can be deemed err unreasonably dangerous solely on defective based expectations product. Second, consumer about that jury instructing circuit court did not err in unreasonably product can be deemed defective and dangerous regardless of the manufacturer of whether product knew or could have known risk product presented Third, harm to consumers. jury properly could find that because the evidence gloves introduced at trial showed that S&N's contained allergic in 5 a substance which causes an reaction gloves percent consumers, were defective their those unreasonably dangerous. although fourth, And admitting opinion circuit court erred in evidence at issue, and, therefore, was harmless does not this error warrant new trial. light In hold that the conclusions, these we verdict in this case was the result of reversible correctly appeals Thus,
error. hold that the court we *10 entry judgment affirmed the circuit court's of on the verdict.
I regards ¶ review, 6. On this court the evidence light jury's adduced at trial in the most favorable to the Village Thompson verdict. v. Hales Corners, 115 Wis. of (1983). especially 289, 314, 2d 704 N.W.2d "This is approval where, here, as true has the verdict [circuit] Id. In hand, court." the case at in Hence, returned a verdict favor of Green. we review present the evidence adduced at trial in the in case light most favorable to Green.
A began ¶ 7. Green a health care worker. She employment Joseph's Hospital at St. in Milwaukee in prior where, to the action, commencement this radiology technologist beginning and, she worked as a technologist. During 1986, aas CT scan the course of employment, hospital required this rules Green to protective gloves patients. attending wear while To comply powdered1 rules, with these Green wore latex gloves by Initially, manufactured S&N. Green used one pairs gloves per upon or However, two shift. her department, promotion began to the CT this use increasing job and, 1988, about 1987 Green's required up approximately forty pairs her to don gloves per shift. experienced 8. Prior to Green never had
allergies; began suffering however, 1989 Green vari- gloves "powdered" S&N some brands of its with cornstarch donning gloves. in order to facilitate and removal of the Early year, problems. hands health Green's ous began peeling. sore, In cracked, and and red, became applied response lotion, condition, she hand to this type soap changed changed of hand used, she used, tried other remedies. Nev- she and various towels ertheless, continued. the rash September By 1989, Green's dete- condition spread upper neck, and to her trunk riorated. Her rash symp- began experiencing chronic cold-like and she watery eyes. runny Green's such as a nose toms eventually increasingly symptoms grew severe, culmi- coughing, nating breath, an acute shortness *11 sig- tightening spent result, the Green throat. As hospital: approximately day in in one nificant time the days beginning September approximately in 1989; five days February approximately 1990; in late March five beginning approximately days late 1991; and three in April 1991. undergoing
¶ and 10. After various treatments diagnosed May in with latex tests, Green was allergy. allergy compelled con- has Green to avoid This change jobs causing and latex, tact with thus her to things purchases, eats, limit the items she she participates. Moreover, Green's activities in which she thereby develop allergy asthma, her latex caused limiting lifestyle. further her
B present the 11. In 1994 Green commenced alleged against action S&N. Green Joseph's gloves used at St. the S&N which she had (1) gloves Hospital respects: defective in two were allergy-causing pro- latex powdered contained excessive levels of (2) teins; and the cornstarch with which S&N persons gloves its increased likelihood would proteins. pro- inhale the latex Green conceded that gloves naturally in S&N's teins occur in the rubber-tree they produced. latex from which are Green also con- any proteins gloves. ceded that S&N did not add to its argued although However, Green S&N could have significantly protein in reduced the levels and discon- gloves powdering production adjusting tinued its its process, production process S&N nonetheless utilized a gloves. that maintained these defects These alleged, defects, Green created the unreasonable dan- ger gloves that S&N's would cause consumers to develop allergy allergy-related latex and suffer condi- alleged Moreover, tions. Green that as a result of these unreasonably dangerous gloves defects, S&N's caused develop allergy allergy-related her to latex condi- injuries. Consequently, and, therefore, tions suffer strictly claimed, Green S&N should be held liable for injuries. these subsequent At trial on claim, Green's parties presented pertinent part following jury. allergy by expo-
evidence Latex is caused proteins. Upon exposure proteins, sure to latex latex persons' systems produce some immune antibodies to expel proteins. per- those likelihood The that such system produce son's immune will antibodies *12 response proteins latex to increases in relation to the person's exposure proteins. person's to the Once a system produces immune antibodies, these he or she is Subsequent exposure "sensitized" to latex. to latex may person progressively develop then cause that to allergic including worse reactions asthma irreversible anaphylaxis, hypersensitivity upon which, even a exposure proteins, may to even a small amount of latex trigger allergic life-threatening a reac-
785 anaphylactic However, at the time Green shock.2 tion — injuries, began experiencing care com- her health munity generally persons could unaware that was allergy. develop latex allergy primary latex is latex 13. The cause of allergy
gloves disproportion- reason, and, this latex profession. ately of the health care affects members majority According experts, vast to medical Green's allergy up percent people latex to with 90 — —are allergy latex is not health care And while workers. general among population, medi- common Green's experts it 5 and 17 cal percent testified that affects between care in the United
of all health workers States.3 presented evidence that further Green danger-
high-protein, powdered gloves more latex are gloves. example, low-protein, powderless For ous than study experts one medical cited a in which of Green's persons reacted researchers tested how latex-sensitive study, gloves. protein In to various levels latex this percent 75 the researchers found while only gloves, high-protein 7 tested individuals reacted Similarly, low-protein gloves. percent reacted experts jury another of Green's medical read to the joint developed statement subcommittee of Academy Allergy, and Immunol- American Asthma College ogy Allergy, and the American Asthma (ACAAI Statement), Immunology provides which part: during May anaphylactic Green suffered shock diagnosed allergy. with latex
allergy test at she was which 3Although agree single figure, experts did not on a Green's percent range. figures their all fell within the 5 *13 allergy [L]atex is the of the exposure result susceptible individuals proteins. latex rubber devices, principally gloves, Medical latex are the largest single source of exposure potent to these allergens. Exposure may [latex proteins] by by direct with offending contact an device or inhala- tion of allergen powder carried cornstarch with gloves which most powdered are coated....
Allergic sensitization to constituent latex rub- proteins is exposure allergens ber linked to to latex in the vast majority cases. Direct exposure to allergens latex expo- results from either contact gloves sures to medical devices and latex or from respiratory exposure aeroallergen [i.e., to latex latex proteins] by donning glove aerosolized carried powders.
[The] risks of acute allergic reactions and of occupational only by asthma can be reduced cur- tailing to latex exposure proteins. rubber We steps, recommend that the following which utilize currently devices, available be taken to reduce these risks:
Only low-allergen gloves latex should be purchased and used. This will reduce among occurrence of reactions sensi- tized personnel and should reduce rate of sensitization.
Only powder-free gloves latex should be purchased and used. This will reduce latex rubber aeroallergen levels exposure. College Allergy, Immunology,
American Asthma and Concerning ACAAI Use Statement Powdered and (1997) Non-powdered Natural Rubber Latex Gloves (citations omitted), at available
http://allergy.mcg.edu/physicians/joint.html; see also App (quoting ACAAI 2000 25 State- Green, WI part). evidence, such both of these ment in Based on gloves experts opined high-protein are much more that gloves likely low-protein to cause latex sensitiza- than citing allergic addition, tion reactions.4 In similar and experts supporting evidence, stated that these medical gloves, gloves, pose powdered powderless latex unlike they proteins to as allow latex substantial risk insofar easily and, For thus, become inhaled.5 aerosolized experts specifically reasons, concluded these one powdered gloves high-protein, are defective latex unreasonably dangerous. and experts
¶ 15. also testified that the S&N Green's gloves Joseph's Hospital had used at St. which Green high-protein, powdered gloves. latex were One Mayo experts study discussed a conducted at Green's 30 latex Clinic in which researchers tested brands of gloves. only protein brands, Of 3 had levels greater gloves than the at That S&N issue. witness study similarly Mayo Clinic discussed another which gloves. latex Of those researchers tested 13 brands of gloves brands, more than 100 times S&N's contained proteins of latex thán 10 the 12 other level Further, brands. several witnesses noted —and S&N gloves dispute did had the S&N which Green —that powdered used were cornstarch. with experts agreed low-protein gloves two S&N's Even generally gloves. high-protein are safer than explained trial, proteins at latex tend to adhere to the As Hence, powders powdered gloves. cornstarch latex when powder her person gloves dons or removes his or and the conse air, quently proteins adhering into latex to is released powder proteins aerosolized. These aerosolized become may inhaled. presented
¶ 16. Green also evidence that powder protein high gloves levels in S&N's caused allergy-related allergy her latex conditions. In the opinion testifying exposure of one doctor, Green's to gloves caused S&N's her become sensitized to latex subsequently develop in 1989 and caused her allergy-related asthma and other conditions. As the opined, having doctor further the likelihood of Green developed allergy exposed only a latex had she been low-protein, powderless gloves "very would have been remote." *15 Finally, presented
¶ 17. Green evidence that alleged unreasonably S&N could eliminated have the dangerous gloves by altering defects in its latex its glove production process. dispute did S&N not production processes during different use the 1980s lower-protein, could have powderless used been to manufacture gloves. latex the case, 18. At close of the the circuit court surrounding
instructed the on the law Green's liability. explained: claim for The strict court A product manufacturer of a who sells or on places product the market a defective which is unreasona- bly dangerous ordinary to the or user consumer and expected which is and does reach the consumer change in the without substantial condition by it is as regarded responsible which is sold law by though harm caused the he or she product even possible preparation has exercised all care in the the the product provided product and sale of was being used for the for which it was purposes A designed product and intended to be used. is said when is in contem- to defective it a condition not plated by ordinary the user or consumer which is unreasonably dangerous ordinary to the user or
consumer, design, out manu- and the defect arose was in the inspection while article facture product A is control of manufacturer. defective unreasonably ordinary dangerous to the user or to dangerous beyond when it is an extent consumer contemplated by ordinary that which would be knowledge possessing user or consumer product's characteristics which were common to community. if it is safe for product A is not defective normal use. under duty
A manufacturer not manu- absolutely which is free from all facture every possible duty harm to individual. It is upon the market a place the manufacturer unreasonably dangerous which is defective ordinary user or consumer. The court then this into the context of law Green's put case:
Question 1 on No. the verdict form is "Were gloves manufactured or sold defendants latex exposed, [S&N] to which Linda Green was defective unreasonably dangerous prospective to a user"?. . .
Now, you gentlemen, ladies and can before ..., you question yes the first must be satis- answer *16 greater weight the the evidence to by fied credible the certainty a reasonable that 1. was in a product condition; defective 2. the defective condition made dangerous to 3. product unreasonably people; the product the existed when the defective condition of was under the control of the manufac- product turer; product and reached the or user in the change consumer without substantial condi- in which it tion was sold. [S&N's]
There is no claim in this case that latex gloves perform purpose failed to their intended protecting against transmission of bloodborne may You pathogens. gloves find the latex dan- were beyond gerous by the reasonable an contemplation ordinary consumer, they user or even if their served purpose. intended knowledge
Lack of the part [S&N] on natural latex proteins may in rubber sensitize and allergic cause reactions to is not a some individuals by defense to the claims the plaintiff [Green] made A responsible this action. manufacturer is by unreasonably harm caused a dan- defective gerous product even if the manufacturer had no or could knowledge [not] have known of the risk of by harm presented product.6 the condition of the opinion, As we discuss Part II of this instruc these respects pattern tions differ in some from strict instruction, liability jury pattern Wis JI —Civil 3260. The provides: instruction market) product (places A manufacturer of a sells who on the unreasonably product dangerous defective which is user or to the consumer, property, expected or to his or her and which to and is change does reach the user or in the consumer without substantial sold, regarded negligent condition in which it is even is law as though possible preparation she he or has exercised all care in the product, product provided being and sale ofthe was for the used purpose designed it for which was and intended to be used. product reasonably A is said to be when it fit defective does not ordinary purposes product
for the sold for which such was used, design, intended and the arose manufac- to be defect out of ture, inspection while or the article was the control dangerous unreasonably A defective is manufacturer. beyond dangerous the user consumer when it to an is extent (consumer) contemplated by ordinary which would user possessing knowledge product's which characteristics community. to the were common duty A manufacturer is not under a to manufacture absolutely every possible free all which is from harm individual.... duty place upon It ofthe not to the market is the manufacturer unreasonably dangerous product which the user a defective (consumer). *17 receiving jury instructions, the 19. After these jury The found returned verdict favor of Green. unreasonably gloves and were defective that S&N's additionally dangerous. that this defective and It found unreasonably dangerous condition caused Green's findings, jury injuries. the these awarded Based on damages. $1,000,000 in Green judgment subsequently ¶ 20. moved for S&N notwithstanding trial, verdict, the a new or remittitur. The circuit denied motions and entered court S&N's jury's judgment on the verdict. appealed, arguing
¶ 21. that the ver- S&N judgment and, on thus, dict the circuit court entered legal that verdict from several errors. How- resulted appeals rejected arguments ever, the court of S&N's opinion, and, in a affirmed the circuit court unanimous judgment. petitioned
¶ 22. then this court to review S&N granted appeals the court of review.7 decision. We you question special [on the the Before can answer first verdict (name yes, product) form] defective so unrea- was as to be sonably you greater dangerous, weight must satisfied (1) certainty product to a that: credible evidence reasonable (2) condition; in a was defective the defective condition made (3) unreasonably dangerous product persons property; product defective existed when the was condition (4) manufacturer; under the reached control of (consumer) change user without substantial the condition it which was sold. Wis JI —Civil 3260. IV(A) 11(B)(1) opinion
7 Parts this contain additional facts. *18 1-I
J—1 products liability ¶ 23. Strict holds manufactur- products selling ers and other sellers of accountable for unreasonably dangerous products defective and injuries cause to consumers. Since Wisconsin has adhered to the rule strict set forth (Second) (1965): § in the Restatement Torts 402A Liability of Special Physical Seller Product Harm to User or Consumer
(1) any One who in a product sells defective condi- unreasonably dangerous tion user the or property subject [or her] consumer or to his is liability for physical thereby harm caused to the consumer, ultimate user or or prop- [or her] to his erty, if
(a) the engaged seller is in the business of selling such product, and
(b) expected it is the to and does reach user or consumer without substantial change in condi- is tion which it sold.
(2) (1) The applies rule stated in Subsection although
(a) all possible seller has exercised care in preparation and his product, [or her] sale of (b) or bought the user consumer has not any from entered into product or contractual rela- with tion the seller. Dippel Sciano, 443, 460,
See v. 2d 37 Wis. N.W.2d (1967). prevail claim rule, To on a under this plaintiff prove following all must five elements:
(1) product was defective condition seller, possession it left the or control when (2) the user unreasonably dangerous it was (3) consumer, that the defect was a cause.. .of or (4) that the seller plaintiffs injuries damages, or, selling such engaged in the business of infre- negatively, that this not an isolated or put principal not related to the quent transaction (5) seller, that the was business of the expected one which the seller to and did reach in the change user or without substantial consumer it. she] condition it when he sold [or was *19 Id. hand, 24. case at S&N contends initially In the jury instructed the incorrectly
that the circuit court of this Spe- the first two elements standard. regarding that cifically, erroneously the circuit court argues S&N (1) that: instructed the can be deemed jury product on unreasonably dangerous solely defective and based (2) that and product; consumer about expectations unreasonably can deemed defective and product be the of dangerous whether manufacturer regardless knew or could known of the risk of product have the Accord- product presented harm consumers. S&N us to the circuit court's ingly, jury asks review instructions. review, will affirm a circuit On this court long
court's instructions so as the selected jury choice the the rele- jury instructions and inform fully fairly Osterloh, v. 419, law. Nowatske 198 2d vant Wis. (1996). The 428-29, 543 N.W.2d issue of whether fully the rele- jury fairly explained instructions and is of law, law a which this court reviews question vant Inc., C&S County Mgmt., Kenosha v. de novo. (1999). 373, 395, 2d Wis. N.W.2d 236 A ¶ 26. firstWe review whether the circuit court instructing jury product erred in that a can be unreasonably dangerous deemed solely defective based expectations product. consumer on about that As pat- indicates, S&N the circuit court deviated from the liability jury instruction, tern Wis JI —Civil provides pertinent "[a] part product 3260, which reasonably is said to be defective when it does not fit for ordinary purposes such which was sold used," and intended to be instead instructed "[a] product is said to be defective when is in it contemplated by ordinary a condition not user or unreasonably dangerous consumer which is nary ordi- to the added.) (Emphasis user or consumer." This "consumer-contemplation" instruction, contends, S&N "defect" defined same terms that the circuit court, in accordance with Wis JI —Civil defined danger": "[a] "unreasonable defective is unrea- sonably dangerous to it the user consumer when dangerous beyond to an extent that which would contemplated by ordinary possess- user or consumer knowledge ing product's characteristics *20 community." (Emphasis which were common to the added.) jury S&N asserts that the circuit court's erroneously merged instruction thus the elements of danger" single "defect" and "unreasonable into a ele- solely contemplation. on ment based consumer
1 ¶ 27. S&N maintains that the consumer-contem- plation jury standard enunciated the instructions is According S&N, at odds with current Wisconsin law. recognized this court has that the consumer-contem-
795 appropriate plation in all test strict is not in Sumnicht v. cases. S&N observes Toyota Sales, U.S.A., 338, 121 Inc., Motor Wis. 2d (1984), permissive fac- cited of five we a list N.W.2d "may plaintiffs proving beneficial to tors be case[s]": their
1) design [CJonformity of defendant's to the prac- industry in its at the tices other manufacturers 2) manufacture; open time of the and obvious .3) alleged nature of . the extent of the danger;. the very to have product alleged claimant's use of and of time injury period caused the involved use prior such the claimant and others 4) any .; injury without harmful incident . . ability danger manufacturer to eliminate product's or mak- impairing without usefulness 5) ing unduly expensive; it the relative product's injury resulting pre- likelihood of from design. sent (quoting Ridge Co.,
Id. at 372 Collins v. Tool 520 F.2d 1975)). (7th By approving list, of this Cir. S&N asserts, this court indicated that factors other than may important expectations to determin- consumer unreasonably ing product whether a defective dangerous. Accordingly, pursuant concludes, S&N "hybrid applies Sumnicht, consumer Wisconsin expectation risk-benefit test."8 reading Sumnicht, on its Based S&N argues affirming appeals erred in the court pattern jury instruc- circuit court's deviation from the tion. S&N contends that had the circuit court instructed the about the defect element of Green's al, S&N this term John S. Allee et. Product borrows from (2000). Liability, 2.05[2][c], 2-41 at § n.23 *21 (i.e., according jury pattern claim to the in instruction gloves reasonably terms whether the were fit for jury purpose), their intended the could have considered the Sumnicht factors set out This, asserts, above. S&N jury only would have allowed con- to consider expectations gloves, sumer about S&N's but also facts gloves' preventing such as: the in effectiveness spread gloves' potential danger only disease; to percent inability to 17 of consumers; and to S&N's danger of and, therefore, know to eliminate the presented by gloves' alleged design by defects. But instructing jury solely con- terms of consumer templation, argues, prevented S&N the circuit court jury considering from factors, the Sumnicht includ- ing gloves. the risks and benefits of its thus S&N concludes that the circuit court's instruction erro- neously incorporated standard that conflicts with Sumnicht. disagree.
¶ 29. We In v. Vincer Esther Williams Swimming Co., adopted All-Aluminum 326, 230 Pool 69 Wis. 2d (1975), g N.W.2d this court Comment provides § 402A, which that a is defective is, "where at the time it leaves the seller's by contemplated hands, in a condition not the ultimate unreasonably dangerous consumer, which will be (Second) [or her]." (quoting him Id. at 330 Restatement (1965)) added). (emphasis Similarly, § 402A Torts of the same adopted § case, i 402A, this court Comment provides pertinent part prod- which that a defective unreasonably dangerous "dangerous uct is where it is beyond contemplated to an extent that which would be ordinary purchases it, consumer who with the ordinary knowledge community common to the to its as (Sec- (quoting characteristics." Id. at 331 Restatement ond) (1965)) added). (emphasis § Torts 402A These *22 provide although unreason- defect and
Comments danger in to a strict distinct elements claim able are liability, products are on con- both elements based expectations. at Sumnicht, See 121 Wis. 2d sumer adoption Accordingly, the on of defi- 367-70. based our Comments, in set we concluded nitions out these Vincer: con-
[T]he test in Wisconsin whether of dangerous depends an unreasonably tains defect ordinary upon expectations reasonable of type this concerning consumer the characteristics of product. average If the would reasona- consumer bly dangerous condition anticipate risk fully the attendant appreciate and unreasonably dangerous it not and injury, would is objective depen- This is an test and defective. knowledge injured upon particular dent consumer. added). (emphasis Indeed,
Vincer, 69 2d at 332 Wis. frequently reiterated that Vincer, since we have Wis- applies consumer-contemplation test strict consin liability products e.g., See, Bowl, v. cases. Beacon Inc. 740, 2d Co., 792, Power 176 Wis. 501 Wisconsin Elec. ("Put (1993) way, product] [a 788 another N.W.2d unreasonably dangerous it is in a defective and when contemplated ultimate consumer condition not consumer."); unreasonably dangerous (noting Sumnicht, at 121 Wis. 2d 369-70 Wisconsin); test v. Vincer is the law Ransome Wis- 620-21, Co., 605, Elec. 87 2d 275 consin Power Wis. (1979) Vincer); (quoting v. John 641 Kozlowski N.W.2d Co., 882, 893, E. 2d 275 Smith's Sons 87 Wis. N.W.2d (1979) (noting adoption of court's Com- the Vincer i); g & accord Netzel v. State Sand Gravel ments (1971) 1, 10-11, Co., 51 2d 186 N.W.2d Wis. (approving a instruction on based the consumer- standard). contemplation precedent.
¶ 30. Sumnicht is with consistent this Sumnicht, In 2d 348-49, Wis. at we reviewed plaintiff, a strict claim in which the alleged design Sumnicht, that a defect in the defend- injuries ants' automobiles exacerbated the that he during examining sustained a traffic In accident. this acknowledged regarding claim, we that states differ approaches products liability their standards. As we *23 explained:
Two separate approaches emerged have to design evaluate defect —a consumer-contemplation [i.e., danger-utility test and a risk-benefit] test.... test,. consumer-contemplation
Under the .a. product defectively dangerous is it dangerous if is to beyond an extent contemplated that which would be by ordinary purchased the consumer who it with the ordinary common knowledge community to the as product's to the characteristics. danger-utility [the test]
Under approach, if, designed only if, is as defective but the magnitude danger of the outweighs utility product. The theory underlying approach this is all virtually products that have and both risks bene- way fits and there no go evaluating that to about design intelligently hazards weighing without dan- ger against utility. There have been somewhat ways articulating different this. . .test. But essence, danger-utility test directs attention attorneys, judges, juries necessity trial and to the weighing danger-in-fact particular for of a fea- a product against utility. ture of its (quoting at Id. 367-68 Prosser & Keeton on the Law of (W. Page § eds., at et al. 5th Torts 99 698-99 Keeton ed. 1984)) omitted)). (footnotes quotations then We
unequivocally is committed held that "Wisconsin consumer-contemplation determining test for whether product is defective." Id. at 368. reaffirming legal stan- 31. After Wisconsin's liability, evidence we examined what dard necessary support Sumnicht's claim. The was argued that we could not sustain defendants were that their automobiles defective and verdict unreasonably dangerous proof there was no because design, practicable the cir- alternative, "an safer under omitted). (quotation at In Id. cumstances." argument, explained rejecting we this we have mandatory adopting factors that must "refrained from weighed determining if a when is defective be unreasonably dangerous." did, at Id. 371. We how- permissive suggest of five ever, the set factors plaintiffs "may proving S&N cited beneficial case[s]." at 372. their Id. contrary contentions, to S&N's But change did not the nature of Wiscon-
Sumnicht factors listing consumer-contemplation In test. sin's merely recognized factors, court Sumnicht this expectations products may vary about consumer familiarity depending on nature of and consumer *24 products. supplements These factors are not with those consumer-contemplation test, be to the to considered expectations. are addition to consumer Nor these fac- legal independent tors tests. Rather, 33. the Sumnicht factors are consider- may determining
ations that be relevant to whether ordinary anticipate and, hence, could consumer unreasonably dangerous contemplate alleged an example, For one of the Sumnicht factors is defect. "[cjonformity design practices of the defendant's to the industry at manufacturers in the the time of of other manufacture." Id. at 372. This factor a does not allow plaintiff prove design a manufacturer's is defec- simply proving design tive that the did not conform designs prod- with other manufacturers’ for similar ("The question any Id. at 371 ucts. is not whether other produced design, manufacturer has a safer but specific product question whether the is defective unreasonably dangerous."). Instead, and may this factor plaintiff a
allow show that because the defen- design dant manufacturer's differed from other contemporary designs, ordinary manufacturers' an consumer designs may familiar with the other manufacturers' contemplate potential be
not able to danger presented by aspect relevant the defen- design. illustrate, dant manufacturer's To further ability another Sumnicht factor is "the of the manufac- danger impairing turer product's to eliminate without making unduly expensive." usefulness or it imply Id. at 372. This factor does that in determin- ing liability, a manufacturer's trier fact must danger balance the the manufacturer's presents to consumers with the benefits or cost-value of product; rejected expressly Sumnicht such a risk- ("A analysis. prod- benefit 368; Id. at id. see also at may unreasonably dangerous uct defective even though ble."). designs alternative, there are no safer availa- contrary, parties
To this factor allows partic- show that due to the inherent nature or cost product, ordinary may expect, ular consumer example, safety to include more or less devices. sum, In the Sumnicht factors must be light applied
understood and templation of the consumer-con- redefining abrogating or test. Instead of *25 liability products standard, Sumnicht reit- Wisconsin's to the consumer- this state's devotion erated liability contemplation products test: Wisconsin strict only consumer-contemplation applies test law consumer-contemplation products in all strict test liability cases. prop- present
¶ case, the court In the circuit 35. jury erly this standard. As the court instructed the on appeals aptly circuit instruction noted, court's "essentially g § 402A, of Comment to which was a clone App adopted ¶ 192, 16. Green, 2000 WI was Vincer." liability explained cases, above, in this And as solely consumer-contemplation adheres state adopted Dippel, § and fur- 402A, delineated in test Therefore, we hold that based ther defined Vincer. prior products caselaw, the circuit court on our erroneously exercise its discretion did gloves instructing it could find S&N's unreasonably dangerous solely be defective and based gloves. expectations on consumer about those pol- that a 36. S&N further contends number gravitate against icy this court's considerations consumer-contemplation test. continued use of argues its S&N thus that this state should abandon consumer-contemplation exclusive reliance on the test. According S&N, do not consumers always regarding expectations have relevant product. suggests design aspects S&N while expectations likely have about how most consumers safely perform its will basic functions they generally use, not have serve its intended do expectations oftentimes, or, even know about — *26 design aspects prod- of—technical or mechanical of the involving Thus, uct. in cases technical or mechanical contemplation may inappro- matters, consumer be an liability. priate measure for posits many addition, In S&N that in cir- consumer-contemplation may
cumstances, the test bar liability pub- manufacturer and, therefore, contravene safety. suggests lic S&N in cases where a injuries by product consumer sustains caused a con- taining patent consumer-contemplation defect, a the may prevent recovery because, test due to the obvious defect, of the i.e., nature the the condition of defect— beyond product contemplation not be —would ordinary Consequently, argues, consumer. S&N liability pure manufacturers to avoid under a con- sumer-contemplation they simply standard, need to any unreasonably dangerous ensure that defects in products patent and, thus, their are obvious to the ordi- nary consumer.9 Finally, pure
¶ 39.
S&N claims that a
consumer-
contemplation test, without consideration of the risks
product,
unnecessarily
and benefits of a
will
cause
many
products
useful
to be taken off market.
S&N
by finding
particular product
contends that
a
to be
unreasonably dangerous,
defective and
a
of fact
trier
effectively condemning
product
Thus,
is
the entire
line.
argues,
finding
particular S&N
that a
is
unreasonably dangerous
defective and
will cause the
product's manufacturer or
other sellers
remove
postulates that,
from the market.
under
S&N
argument suggests
recognizes
This
that at least
S&N
factors,
open
one of the Sumnicht
"the
obvious nature
alleged danger,"
light of
must be understood in
the consumer-
Sales, U.S.A.,
Toyota
contemplation test. Sumnicht v.
Motor
(1984).
Inc.,
338, 372,
121 Wis. 2d
that caused
many
agree
with S&N that
We
may
fully
ordinary
instances,
not
of or
consumers
know
design aspects
the
mechanical
understand
technical or
product
instances,
technical
at
In
of the
issue.
such
the
product
product design
or mechanical
features of the
comprise
contemplated by
"condition[s] the
will
omitted).
(quotation
ultimate consumer."10 Id. at
inquiry
Thus, the
in those cases must focus on whether
10Indeed,
injured
if an
consumer knows of and under
i.e., contemplates
injury the
the time of his or her
stands —
condition
—at
design
injury,
feature that caused that
the
injury-caus
likely
prove
consumer
would be unable
the
ing
unreasonably dangerous.
product
defective and/or
See
was
Co.,
Swimming
Vincer v. Esther Williams All-Aluminum
Pool
(1975).
326, 332,
2d
Wis.
230 N.W.2d
design
present
danger
features
an unreasonable
ordinary
consumer.
danger,"
A42.
determination of "unreasonable
product
like determination that a
is in a condition not
contemplated by
ordinary consumer,
does not inev-
itably
any
require
degree
understanding
of scientific
product
requires
Rather,
about the
itself.
it
under-
standing
safely
ordinary
of how
consumer would
product
expect
purpose.
to serve its
If
intended
expecta-
falls below such minimum consumer
unreasonably
dangerous.
tions, the
straightforward
¶ 43. These standards are
may
applied
"complex"
even
cases. This court
frequently
upheld
consumer-contempla-
has
use of the
involving complex products.
e.g.,
See,
tion test in cases
(electricity);
Bowl,
Sumnicht,
Beacon
¶ Second, we that in some 44. design open cases, and nature of a products defect obvious liability. may claims for strict This defeat mean, can avoid however, not manufacturers does unreasonably dangerous liability by making design all ordinary open and obvious to the consumer. defects recognizes several other causes of action Wisconsin against may applicable manufacturers which dangers. products open produce The with obvious open nature of a and unreasona- and obvious defective inherently bly dangerous claims condition does not bar example, negligence, implied on, for breach of based warranty. warranty, express do not or breach of We suggests, simply believe, as because strict S&N may recovery liability products not allow all circum- involving unreasonably defective stances dangerous products, should abandon our current we products standard. agree third, this And court does with 45. consumer-contemplation test
S&N that the unnecessa- rily marketplace. An from the eliminates dangerous unreasonably prod- otherwise defective and may many safe uct cases be made for consumer use warnings adequate Arbet, or means of instructions. (Second) 556-57; at also 66 Wis. 2d see Restatement (1965). j light § h, If, even in of warn- Torts 402A cmts. ings instructions, remains defective and unreasonably dangerous ordinary consumer, to the we no should remain on the see reason that market. reasons, For these we decline S&N's invita- qualify this state's reliance
tion to abandon or exclusive consumer-contemplation test. reaffirm that We on *29 consumer-contempla- Wisconsin is committed products liability tion test in all strict cases.11
B ¶ 47. We next review whether the circuit court instructing jury product erred in can be unreasonably dangerous regard- deemed defective and less of whether the of manufacturer knew or could have known the risk harm the presented to consumers. S&N contends that the circuit erroneously "[a] court instructed the manu- responsible facturer is for the harm caused unreasonably dangerous product defective and even if knowledge [not] the manufacturer had no or could have presented by known the risk of harm the condition of product." points primary As S&N out, one of the policies underlying products liability law encourage produce products. manufacturers to safer To policy, advance this indicates, S&N further the law imposes on manufacturers who fail to elimi- products unreasonably dangerous nate from their present defects, which a risk of harm to consumers. However, asserts S&N that manufacturers con- cannot sciously potentially eliminate harmful defects from their when the manufacturers do not and can- Consequently, not know that those defects exist. S&N 11We changing gender note that other than references in (the Jury the Wisconsin Civil Instructions Committee Committee) substantively has not amended Wis JI —Civil 3260 initially is, it published since the instruction in That updated Committee in effect has not this instruction since approximately years Vincer, 330-31, four before 69 Wis. 2d at adopted g light which this court Comments and i In § to 402A. present holding, Vincer and our suggest that we the Committee revisiting consider Wis JI —Civil 3260. *30 liability
argues, imposing manufacturers that do on products ofharm that their of the risk and cannot know encourage present manufactur- does not consumers products. produce claims, Rather, S&N safer ers imposing liability in such circumstances transforms legal liability, liability products a into absolute strict Dip specifically that court disavowed standard this pel 443, 459-60, 155 2d N.W.2d Sciano, v. 37 Wis. (1967). impos-
¶ that in order to avoid 48. S&N contends products liability, ing current Wisconsin absolute necessarily liability foresee- includes an element of law ability. Alternatively, curiae, and amicus Product S&N Advisory suggest Liability Council, Inc.,12 that if this does not that current Wisconsin law court concludes foreseeability recognize risk of harm is an liability, products "it time to of would be element change (Third) strict by adopting the Restatement law" Wisconsin 2(b) (1998), § an which does include Torts foreseeability. element of preliminary matter, we note 49. As a only properly pre- failed to S&N not Green contends specifically court, serve this issue in the circuit but foreseeability court conceded to circuit presented by product is irrelevant risk of harm trial, claim. Prior to Green strict any or evidence in limine to exclude reference moved pertaining knowledge as to latex to S&N's "lack allergy, possible latex causes, its or its connection with Council, Liability Advisory Inc. is an association Product manufacturers, including joins S&N S&N. It representing 132 appeals decision. urging court to reverse the court this gloves any grounds [knowl- time, at on the that such edge] [Green's] upon is irrelevant to claim based strict products liability." responded S&N to Green's motion "agree[d] [Green] knowledge it that regarding with that lack of allergy
latex is irrelevant and therefore inadmissible in this case." The circuit court, however, denied Green's motion. Similarly, S&N conceded at inability
instruction conference that its *31 foresee presented by gloves risk of harm its should not be a assessing requested factor in Green's claim. Green had that the circuit court instruct the that S&N's lack knowledge allergy about latex a was not defense to products liability objected Green's claim. S&N to this proposed instruction not because the instruction mis- "already law, stated the but rather it because was [j]ury covered in the is, instructions." That S&N accepted objected that the correct, instruction was but merely it because believed the instruction was duplicative. present
¶ 51. S&N did not raise the issue until its light motions after the verdict. As such and in of S&N's argues court, concessions to the circuit Green that S&N waived this issue. general,
¶ 52. In this court will not address properly preserved issues that have not been in the Apex Corp. Gee, lower courts. Elecs. 378, v. 217 Wis. 2d (1998). 384, 577 However, N.W.2d an when issue question by law, involves has been briefed opposing parties, public and is of sufficient interest to decision, merit a this court has discretion to address the issue. Id. accepted present
¶ 53. we When review in the part case, we our exercised discretion to address the foreseeability harm is of the risk of an issue of whether products liability This strict claims. issue element in by question law, has been briefed Green S&N pursuant court, and is of sufficient to an order of this public Therefore, interest to warrant a decision. we arguments regarding on this issue their address S&N's merits. explained above, S&N contends that 54. As existing provides court's caselaw that foreseeabil-
this
ity
an element
strict
of the risk of harm is
liability. According
S&N,
in order to avoid trans-
forming
liability,
court
strict
into absolute
this
recognized
considering
previously
whether a
that when
unreasonably
particular
is defective and
dan-
gerous, the trier of fact must consider whether the
could have foreseen the risk of harm
manufacturer
product. Relying
presented
its
on three Wisconsin
(1)
Toyota
Supreme
v.
Court
Sumnicht
Motor
cases —
Sales, U.S.A.,
Inc.,
121 Wis. 2d
360 N.W.2d
*32
(2)
(1984);
Corp.,
Sharp
1,
2d
v. Case
227 Wis.
595
(3)
(1999);
Glassey v. Continental
N.W.2d 380
Ins.
(1993);
sup-
Co.,
587,
176
2d
The
is the
of due care
any
to refrain from
act which will cause foreseeable
duty
harm to others.... The
care
a defendant is
established
we can
when
state that it was foresee-
able that
the defendant's acts or omission could
injure
harm or
person.
another
omitted).
(quotation
Negli-
Id. at
46
and citations
gence liability
hinges
large part
thus
on the
involving
defendant's conduct under circumstances
a
foreseeable
harm.
Huebner,
risk of
D.L. v.
110
2dWis.
(1983).
581, 610,
does tort. ity purely is one of liability] [of does not products
The rule
strict
part
on the
of the consumer
require any reliance
skill,
judgment
or
of the seller
upon
reputation,
liable,
any representation
who is
held
nor
part of
seller.
undertaking on the
(1965).
(Second)
§
cmt. m
In
Torts 402A
Restatement
of
liability
liability imposes
products
words,
other
strict
regard
negligence
and its attendant factors
without
foreseeability.
duty
Dippel, 37
2d at
Wis.
of care and
("From
plaintiffs point of
461;
also id. at 460
see
[of
aspect of the rule
strict
view the most beneficial
liability]
plaintiff]
[the
products
is that it relieves
Fuchsgruber
specific
negligence.");
proving
v.
acts
Accessories, Inc.,
the
is
that the
posses-
inwas
a defectiveconditionwhen it left the
sion or
seller;
control of the
it
was
unreasonably dangerous
[ordinary]
to the
user or
consumer; that the defect was a cause.
.of
.
the
injuries
plaintiff
damages;
s
that the seller was
engaged
selling
product
.;
in the
business
. .
expected
and that the
was
did reach
change
the user or consumerwithout substantial
in
in
condition whichit was sold.
Kemp Miller,
538,
v.
154
551,
Wis. 2d
Sharp, Glassey support contrary position. a As — above, noted Sumnicht involved a claim that automo- biles sold the defendants were defective and dangerous unreasonably design because certain aspects plaintiffs inju- of those vehicles enhanced the during ries at collision. Wis. 2d 348-49. analyzed case, Before this court issues we explained: may car that the risk that a must first note
[W]e by the reasonably foreseeable accident in an therefore, [defendants], and, [defendants] have Gussarson, [v. anticipate that risk. Arbet duty (1975)]. 551, 558, We 225 N.W.2d 2dWis. decision: following from the Larsen reemphasize reason, perceive no sound either *35 We experience, any nor command in logic or should why the manufacturer precedent, duty a reasonable of care in not be held to design of its vehicle consonant with to minimize the effect of state of art are not The manufacturers accidents. held to a standard of insurers but should be design provide care in rea- reasonable in travel. sonably safe vehicle which to duty design care in . . .The of reasonable light in of that risk. should be viewed all cannot be eliminated nor While risks designed crash-proof can a vehicle art, are present under the state there many design, factors in common-sense are or should be well known which lessen manufacturer that will minimize or effects of a collision. The injurious applied standard of reasonable care many negligence other situations applied should be here. 391 F.2d Corp., [v.
Larsen General Motors (8th 1968)], Arbet, 66 cited approval Cir. with 2d at 560. Wis. language
Id. at 374-75. S&N contends that this injected foreseeability an element of into Wisconsin products liability law.13 language
¶ 59. S&N misreads Sumnicht. This
Sumnicht
use,"
addressed
issue
"intended
a con-
cept
contributory
with
interwoven
the defense of
(citation
negligence. See Arbet,
¶ However, 60. foreseeable use must not be con- explained fused with foreseeable risk of harm. As concept law, in above, tort the former relates to the contributory consumer's conduct and the defense negligence; concept the latter relates the manufac-
13 argues S&N also that the fourth Sumnicht factor —"the ability danger of the manufacturer to eliminate impair without ing product's making unduly usefulness it expensive" concept to the foreseeable risk harm. —relates omitted). above, (quotation 121 2d at 372 But explain Wis. as we light this factor must in be examined of the consumer-contem ordinary plation test: it relates to the consumer's reasonable expectations, Thus, not to the conduct. find manufacturer's we argument this to be without merit.
815 solely negligence hence, and, conduct turer's liability. Arbet, from which Sumnicht In the decision 61. language
quoted issue, this court held colli- at 66 2d at use" of vehicles. Wis. are a "foreseeable sions years Approximately Sumnicht, later, in this ten 560. holding. quoted 121 2d at this Wis. court Arbet for expand however, mean- Sumnicht, did 374-75. foreseeability ing quotation to hold that of the Arbet products an of strict liabil- risk of harm is element support ity.14 Therefore, Sumnicht fails to S&N's argument. support argument its as 62. also cites S&N Sharp, Sharp, 2d In in 227 Wis.
this court's decision
among
things,
brought
plaintiff
for,
claims
other
14
Arbet,
acknowledge
explaining
in
foresee-
while
We
contributory negligence,
relating
use
to the defense of
able
as
negligence concept of
risk
referred to the
foreseeable
this court
Gussarson,
551, 558-60,
2d
225
Arbet v.
66 Wis.
of harm. See
(1975).
Corp.,
Indeed, Larsen v. General Motors
391
N.W.2d 431
(8th
1968),
495,
provided
the lan-
Cir.
the case
F.2d
Arbet,
quoted
provided
language
in
guage
which
turn
Sumnicht,
negligence
was a
case—not
quoted above from
However,
liability
following
term
our
case.
in the
Arbet
products
decision,
negligence
court
the difference between
this
clarified
and,
doing so,
liability
overruled Arbet to
products
and strict
ordinary
"revived the issue of the exercise of
the extent that it
v.
cases." Greiten
care
the manufacturer
n.1,
(1975);
LaDow,
589,
strict and failure to warn. Id. at 9. rejected jury The claim, strict but plaintiff found in favor on of the failure to warn claims. Id. argued Sharp 63. On review, the defendant in
that:
the jury's finding products liability [on the strict claim] that the not unreasonably was dan- gerous is inconsistent the jury's finding with that after manufacture product, sale [the defendant] learned posing of defect a serious haz- ard originated that at and was unforeseeable at the time of manufacture and [the defendant] did not use due care in warning danger. about the dismissing argument, explained: Id. at In 20. this we We any inconsistency do see between the two findings complained in this A defect impos- case. ing a may unreasonably serious hazard not be dangerous. agree with the We circuit court that "the jury could have found .the that.. defects.. .were not sale, point foreseeable at the became appar- but ent Accordingly, later." hold special we findings fatally verdict are not inconsistent.
Id. present case, In the S&N contends that the
Sharp explanation court's that "the could have found . that. .the defects. . .were not foreseeable at the point apparent sale, became but later" leaves no jury may reject products liability that a doubt strict simply claim because the defendant manufacturer presented by could not have foreseen the risk of harm product. is, its Id. That contends in this S&N sen- recognized foreseeability tence, this court as an products liability. element of strict *38 Sharp, misinterprets In this sentence. 65. S&N although jury may explained found that the have we product posed hazard," a "serious that the defendant's duty giving of that thus rise to to warn consumers necessarily jury hazard, it did not follow the must product unreason- have found that the defendant's was ably dangerous give and, therefore, could rise to strict explanation "[a] liability. products defect Our unreasonably imposing may a serious hazard not be why rejected dangerous" explained jury the strict liability By following products contrast, claim. Id. our jury sentence, "the have that. . .the could found point sale, . .were at the but defects. not foreseeable why explained apparent later," found became breaching post- negligently its the defendant liable duty to warn consumers of the risk of harm sale omitted). product. presented by (quotations its Id. Con- trary argument, latter sentence did not to S&N's this foreseeability provide that is an element of Wisconsin liability products law.15 Finally, court's S&N maintains that this Glassey position supports in that foresee-
decision
liability
ability
products
must be considered in strict
Glassey,
597,
in
In
176 Wis. 2d at
we examined
claims.
plaintiff
prod-
part
can recover under strict
whether
substantially
changed
he or
has
ucts
when
she
product
plaintiff
at issue. We concluded that a
can-
foreseeability
assuming arguendo
an ele
Even
liability,
products
question
it would
ment of strict
we
whether
plaintiffs
recovery
Sharp
Corp.,
have
v. Case
barred
(1999).
By finding
the cause of action for strict policy supporting we identified several considerations our decision to make manufacturers and other sellers products responsible placing of defective and unrea- sonably dangerous products into the stream of " (1) product para- commerce: the seller of a 'in is the position mount to distribute the costs the risks'" by presented products by passing along the costs to (2) by purchasing consumers or insurance; consumers " right rely safety apparent have 'the on the product and. . .it is the seller in the first instance who by placing product creates the risk on defective (3)" greatest market'and 'the has manufacturer ability by product [its] to control the risk created since may inspection [it] adopt quality initiate or control thereby preventing products measures reaching defective from (quoting Dip-
the consumer.'" Id. at 602-03 450-51). pel, Applying policies 37 Wis. 2d at these Glassey, the issue that us in was before we concluded "[t]he that where manufacturer or is seller not one imposing liability risk," on who creates the the manu- any significant facturer or seller would "achieve equitable purpose reduction of risk" serve the party imposing the cost the risk on that created dangerously product. Id. at 603. Accord- defective liability Glassey imposing ingly, on a held in we product has under- at issue manufacturer when the change gone it left since a substantial policies not advance manufacturer's control would undergirding liability law. Id. Wisconsin Glassey, Citing policy our discussion 68. imposing liability argues on a manufacturer S&N of harm not foresee the risk that did not and could liability imposing presented aon its —like undergone a substan- manufacturer whose has change it left the manufacturer's tial since any significant not "achieve reduction control—does argument short for two reasons. risk." Id. This falls position. Glassey directly First, at odds with S&N's Glassey above, As underscored noted "[floreseeability is not an element considered in strict Id. at We cannot that this claims." fathom considering holding, holding And this could be clearer. *40 any Glassey support to we fail to see that lends S&N's argument. argument solely Second, S&N's focuses on underlying products liability public policy
one
strict
ignoring
important policy
second,
while
a
more
consid-
liability
Although products
in
is intended
eration.
law
primary
part
products
consumers,
for
the
to make
safer
imposition
underlying
"rationale
the
of strict
on
risk of the loss
manufacturers and sellers is
the
products
the
should
associated with
use of defective
be
by
borne
those who
created the risk and who have
have
by
profit
placing
reaped
defective
Kemp,
at 556;
stream of
154 Wis. 2d
see
commerce."
("The concept of
D.L., Wis. 2d at
strict
also
[products] liability
policy
public
on
of allocat-
rests
ing
goods
putting
with
the costs of
risks associated
commerce.");
2d at
Ransome,
the stream of
87 Wis.
into
(" 'public policy
demands that the
of
burden
acci-
by
injuries
dental
caused
intended for
consumption
upon
placed
those
them,
who market
production'"
(quoting
and be treated as a
of
cost
(Second)
(1965)));
§ 402A
Restatement
Torts
cmt. c
upon
("Dippel
Greiten,
above,
rule that
we
foreseeability
plays no
of the
of harm
role
cur-
risk
liability
Accordingly,
products
law.
we
rent Wisconsin
support
law
not
that current Wisconsin
does
hold
the circuit court erred
S&N's contention that
gloves
instructing
it
find
could
S&N’s
dangerous regardless
unreasonably
of
defective and
of
of
or could have known
the risk
whether S&N knew
gloves presented
its latex
to consumers.
harm
suggest
curiae
in the
71. S&N and amicus
alternative, however,
if
that Wisconsin strict
currently
does not include an element of
law
foreseeability,
adopt the
this court should
Restatement
(Third)
2(b) (1998).16
2(b) provides
§
Section
Torts
of
product:
a
controversy
We note that
there has been considerable
(Third)
2(b). See, e.g.,
Torts
Restatement
Marshall
§
over
of
Legislation:
A New
Remarks on the
Restatement
Shapo,
S.
Draft
(1997)
Liability, 30 U. Mich. J.L. Reform
215, 218
Products
of
(Third)
Restatement
Torts
(stating
descrip-
of
law,
existing
but rather
is the creation of drafters
tion
sounding
essentially political
"a
who acted as
board for
discus-
Vandall, Constructing
sion");
J.
Frank
Before
Roof
(Third)
Prepared:
Foundation is
The Restatement
Torts:
2(b)
Liability
Design Defect, 30 U. Mich. J.L.
Products
Section
(1997)
2(b)
261,
(characterizing
as "a wish list
Reform
261-65
§
"[m]essy
manufacturing America" in
and awkward
from
which
precedent,
accuracy have
concepts
policy,
such as
and case
been
A
reform"); Symposium,
purpose
brushed aside
tort
(Third)
Analysis
Proposed
Restatement
Torts:
Critical
13,
Liability, 21 Wm. Mitchell L. Rev.
Products
412—
2(b)
(1995)
being
(criticizing
as
"a vehicle for social
419-20
§
*42
in design
is defective
when the foreseeable risks of
by
harm
could have been
posed
product
reduced
by
adoption
of a
avoided
reasonable alterna-
design by
distributor,
tive
the seller or other
or a
predecessor
distribution,
in the
chain of
commercial
and
design
the omission of
alternative
renders
reasonably
not
safe.
§
a
72. Comment
2 of the Restatement
(Third)
2(b)
explains
incorporates
§
Torts
that
an
of
foreseeability
element
of harm
a
risk
and
risk-
2(b) departs
§
benefit
such,
test. As
from the consumer-
(Sec-
contemplation test
forth in
set
the Restatement
ond)
(1965),
§
Torts 402A
the distinction
blurs
products liability
negligence
between strict
claims and
AG,
claims.
51,
See Morden v. Continental
2000 WI
(explaining
¶ 46,
325,
235 Wis. 2d
§ sets the bar strict liability design negli- comparable defect cases17than 2(b) gence merely incorporate does cases. Section negligence liability products standard into strict law. law, existing reform" rather than a and cit- restatement observations). ing numerous articles with similar hand, Design defect are cases as the cases such one at which design, at issue conforms its intended with design allegedly unreasonably but the itself defective dangerous. require- it
Instead, adds to this standard additional injured seeking recover ment that an consumer prove there must under strict design" to the was a "reasonable alternative available serving product's Thus, manufacturer. rather than *43 by underlying policies products law strict injuries by allowing a to for caused consumers recover dangerous product unreasonably without defective and product's negligence part proving the the manu- on of 2(b) injured § facturer,18 increases the burden for by only proof requiring of consumers the manufac- not by adding negligence, an turer's but also proof to the additional —and considerable —element negligence impose This such a standard. court will Toyota injured persons. on Accord Sumnicht v. burden U.S.A., Sales, Inc., 338, 371, 121 2d 360 Motor Wis. (1984) (rejecting argument 2 N.W.2d the Wiscon- liability requires proof an strict sin design). alternative, safer places
¶ 74. Where a manufacturer a defective unreasonably dangerous product the stream and into injured commerce, manufacturer, not the con- posed sumer, of the risks should bear costs 2(b) product. unduly equitable § obstructs this Because 2(b) principle, adopt § into law. we refuse Wisconsin Sharp Corp., 1, 19, Accord v. Case 227 Wis. 2d 595 (1999) (declining adopt N.W.2d 380 Restatement (Third) (1998)). Torts
18 460, 155 Sciano, See v. 2d Dippel Wis. N.W.2d (1967).
HH HH 1—I ¶ 75. examine We next whether the could properly gloves find that S&N's were defective unreasonably dangerous where evidence intro- gloves at duced trial showed that contained a allergic substance that an causes reaction in to 17 percent of their consumers. S&N contends that as a faultlessly law, matter of manufactured impurities contains no cannot be rendered defective unreasonably dangerous simply per- because some allergic product. sons an suffer reaction to that In argument essence, S&N's is that where a consumer allergic an suffers reaction to that is safe majority population, that reaction is not product, of a result defect in the but rather a "defect" propensity allergies. Thus, the consumer —a although accepts fact the S&N as evidence Green *44 at adduced trial to the effect that health care workers "ordinary gloves were the of S&N's latex consumers" gloves allergic and that those latex could cause an reac- percent tion in 5 to 17 health of care workers in the States, United S&N that nonetheless contends Green's case fails as a matter of law. dispute
¶ 76.
not
the
Because S&N does
evidence
requires
issue,
relevant to this
resolution of this issue
apply
undisputed
us
to
of
to
the law an
set
facts. This
presents
question
law,
a
which
novo.
we review de
Bailey,
245, 274,
v.
2d
Tomczak
Wis.
N.W.2d
(1998).
prevail
prod-
reiterate,
in a
77. To
order to
plaintiff
prove
case,
ucts
a
has
to
the burden
product
unreasonably
that the
at issue is defective and
dangerous.
product
Vincer,
A
defective omitted). (quotation A Id. at 330 ultimate consumer." "danger- unreasonably dangerous it where is is beyond be extent that which would ous contemplated an ordinary at 331 by the consumer." Id. omitted). (quotation Applying this standard to facts initially that the here hand,
case at we conclude issue gloves The evi- not were defective. whether S&N's gloves at that were flawed dence trial showed S&N's (1) respects: they contained excessive levels two (2) allergy-causing proteins; they powdered were proteins cornstarch, latex which allowed the with consequently, easily and, inhaled. become aerosolized The further showed that both these flaws evidence injuries aller- can consumers to suffer i.e., cause some — Finally, parties gic dispute that at reactions. do not latex the time Green became sensitized to and conse- allergic quently began suffering reactions, health community persons care allergic was unaware that could be "ordinary latex; hence, the consumer" gloves health care i.e., S&N's workers —could — contemplated at the time sensitization have of Green's gloves cause S&N's contained flaws could reasonably injuries. on evidence, Based this gloves con- found that S&N's templated by were in a condition not ordinary i.e., consumer — only gloves reason, this issue at were defective. For allergic reac- hand is that causes an whether percent tion in 5 to 17 of its can deemed consumers *45 unreasonably dangerous. acknowledge, emphasizes, as 79. We S&N jurisdictions
most
hold that where a consumer suffers
idiosyncratic
unusually
particular
an
rare
reaction
a
product,
products liability
strict
does not allow
con-
impose
product's
sumer
on the
Adelman-Tremblay
e.g.,
See,
manufacturer.
v. Jewel
(7th
1988) (holding
Cos.,
¶ 80. We reaction" recognition unusually rule not as a idiosyncratic that in cases of rare injury-causing
reactions, the
defect is in
Contra,
the consumer rather than the
e.g.,
at issue.
(explaining that in
Simeon,
conclude unreasonably gloves dangerous. First, S&N's were met initial There was evidence that Green her burden. gloves ingredient pro- an contained S&N's —latex allergic in 5 can cause reactions teins —which percent this, of their consumers. From reason- gloves ably contained an could conclude that S&N's allergic "sig- ingredient an reaction that can cause Additionally, nificant consumers.19 number" the time of at trial indicated that at Green's evidence ordinary did not know that sensitization, consumer proteins allergic approxi- could cause reactions latex mately one-in-twenty to one-in-six And consumers. gloves second, failed show that its included S&N *48 warnings alerting or directions consumers gloves' potential allergic Therefore, to cause reactions. jury finding. regard issue, to this we affirm the with Co., v. DuPont De Nemours & 904 Accord Stinson E.I. (Mo. 1995) (holding App. that 428, 431 Ct. S.W.2d isocyanates potentially that where evidence showed injury percent exposed persons, 7 can cause of 19 take notice that the United States Bureau of Labor We 1989, reported year during that in which S&N's Statistics latex, 7,551,000 gloves approximately peo sensitized Green to ple industry. in the health care United States worked Census, Commerce, Dept, of Bureau of United States Statis- (111th 1991). 410 ed. tical Abstract the United States 1991 Assuming pursuant to the evidence Green introduced at trial allergy potentially percent can 5 to this that latex affect 1989, class, allergy potentially this that latex could means 377,550 1,283,670 in the persons affected between have industry suggests allergy health care alone. This latex cry unusually idiosyncratic far from an rare reaction. jury question
evidence was sufficient to submit to a isocyanates unreasonably dangerous); of whether are (Mo. Ray Upjohn App. Co., v. 851 S.W.2d Ct. 1993) (holding isocyanates poten- that evidence that tially injury percent exposed persons can cause 5to isocyanates is sufficient to sustain verdict that are unreasonably dangerous). sum, In we hold that a can be unreasonably dangerous
deemed defective and where contains a which, substance unbeknownst ordinary allergic consumer, to the can cause an reac- percent tion in to 17 Moreover, of its consumers. we conclude that because the evidence introduced at trial present in the that, case indicated unbeknownst to the ordinary proteins gloves consumer, the latex in S&N's allergic percent could cause reactions in 5 to 17 gloves' users, and because S&N failed to show gloves adequate warnings their included or instruc- regarding potential danger, tions this there was sufficient evidence for the gloves to find that S&N's unreasonably dangerous. were defective and
IV ¶ 86. We last examine whether the circuit court admitting opinion regarding erred in certain evidence safety gloves. of S&N's If we conclude that err, circuit court did so we then must determine whether this error a new trial. necessitates
¶ 87. S&N maintains that the circuit court erred *49 reading summary jury testimony by in to the a Paul (Cacioli), opinions Cacioli which that included Cacioli's "high protein" he considered the level of in S&N's gloves unacceptable" to be "unsafe and and that "a glove protein glove." lower is a safer S&N contends pursuant qualified to Stat. was not Wis. Cacioli (1997-98)20 provide opinions. § to such Moreo- 907.02 argues opinions "primary that these were ver, S&N safety gloves." regarding S&N S&N's evidence possibility accordingly a there is reasonable claims opinions Cacioli's admission of contributed jury's Thus, that the circuit verdict. S&N concludes opinions was not harm- court's admission of Cacioli's therefore, and, this court must remand this less error a trial. case for new argues response 88. Green that Cacioli was opinions
qualified express In at issue. the alter- if court native, contends that even the circuit Green admitting opinions, light Cacioli's erred in presented other which Green at substantial evidence safety gloves, regarding trial of S&N's this error did right hence, and, of S&N not affect a substantial was Accordingly, court harmless. Green maintains this appeals decision, which should affirm the court of entry judgment upheld on the the circuit court's verdict.
A of the Wisconsin Statutes 89. Section 907.02 provides: scientific, technical,
Testimony by experts. If or knowledge will the trier of specialized other assist the evidence or to determine fact to understand issue, expert as an qualified fact witness skill, education, training, knowledge, experience, to the Wisconsin Statutes are subsequent All references unless otherwise indicated. 1997—98 version *50 may testify in thereto the form of an opinion otherwise. added.)
(Emphasis
The determination of whether a
qualified
testify
expert
witness is
as an
under
§ 907.02 is a matter within the discretion of the circuit
Glassey
court.
v.
Co.,
Continental Ins.
2d 587,
Wis.
(1993).
review,
leading experts allergy in the field of latex and formed program regarding allergy, an informational latex employed experts. which he several medical As a testing, allergy result, Cacioli observed latex learned party Neither contends that the focus of the research in fellowships experience consulting Cacioli's or Cacioli's at the present firm is relevant to the issue. language field, and issues
some of competing protein com- levels aware of became gloves. panies' He further familiar with *51 latex was protein implemented processes levels that altered the gloves. latex in Ansell's being specifically denied However, Cacioli allergy. expert Green's in the field latex When
an attorney questioned during deposition about Cacioli glove high protein in could level a latex whether replied: unsafe, Cacioli deemed thing clarify terminology I one in this Could unsafe?... unsafe, basically terminology this we're
It's in the dark what is safe and what very much about this point There has been no definition at unsafe. safe, and in time to us as to what is considered to be well, conflicting are as from opinions, there only I make knowledgeable people in this area. can unsafe, I and statement from what believe is area, just I'd like to expert not an in that so I'm clarify that. added.)
(Emphasis explained he Cacioli then was manufacturing expert quality only processes and an Nonetheless, ruled that the circuit court control.22 recognize attorney seemed to as much. After Green's safety any expertise protein in the of various Cacioli disclaimed levels, following exchange occurred: you, your
Q: attorney]: asking I am [Green's within the level of competence your experience.... and you you asking that I wasn't I want to make clear testify Dr. Beezhold or someone like that. as not, you're you competent, manu- do do to discuss You think you? facturing practices, don't yes. my expertise, [Cacioli]: A: That is field of Q: manufacturing processes? And safe background, qualified pro- based on his Cacioli was expert opinion regarding safety vide an of various protein gloves. levels in latex ruling
¶ 93. This sure, was error. To be Cacioli protein manipulate knew of and could levels latex gloves, knowledge language and had some community issues of medical that studied latex allergy. However, doctor, Cacioli was not a medical had experience, training, formal no or education in latex allergy, knowledge why and had no first-hand protein of how or Instead, various levels affected individuals. he knowledge by associating observing culled his with and medical doctors and others who had devoted their study allergy immunology. careers to We cannot conclude from the fact that Cacioli seems to acquainted people qualified testify have himself with *52 protein about the effects of various levels in latex gloves qualified testify that Cacioli was to on this subject. great importantly,
¶ 94. But more we accord weight specifically to the fact that Cacioli disclaimed any expertise regarding safety protein the of different gloves. appeals previously levels in latex As the court upon provide expert observed, a has witness called to testimony may qualifications by establish his her or testimony. or means of his her own Heintz, James v. (Ct. 1991); App. 572, 579, 478 165 Wis. 2d N.W.2d cf. ("Evidence prove personal § Wis. Stat. 906.02 knowl witness."). edge may. testimony . .consist of the of the accept The circuit court must this foundational testi mony testimony "it finds unless the not credible
A: Yes.
Q: quality And control?
A: Yes. contrary evidence that undercuts credible
there appeals proffered in Id. Like the court of foundation." present own testi- case, we hold that if a witness's mony qualifications, can the witness's establish testimony similarly might limit the witness's witness's Nephew qualifications. AHP, Inc., Smith & Green v. App 192, 22, 2d 617 N.W.2d WI 238 Wis. 881. present case, above, In as noted Cacioli being qualified testify regard-
specifically disavowed safety gloves. ing protein different levels latex contrary, findings to circuit court made no nor The any contrary in do to the the record.23 we find evidence quali- reasons, For hold that Cacioli was these we accordingly, provide opinions and, at issue fied admitting opinions. court erred in those circuit B Although ¶ 96. we hold that the circuit court's opinions error, admission of Cacioli's was we still requires determine whether such error us to must appeals the court of decision and remand this reverse provided for a trial. As Wis. Stat. case new §805.18(2): judgment shall reversed or set aside or
No any granted proceeding new trial action or on the . admission of evi- ground .improper of. *53 in the the court to which opinion dence. . .unless of 23Ironically, light regarding disclaimer Cacioli's expertise, by ruling qualified Cacioli limits of his was issue, opinions the circuit court in effect ruled provide at Cacioli—or at least his disclaimer —was credible.
836 made, is application after an examination of the entire proceeding, action or it shall appear that the complained error of has the substantial affected rights party ofthe seeking to reverse or set aside the judgment, or a to secure new trial. added.)
(Emphasis For an error to "affect the substan- rights" party, tial of a there must be a reasonable possibility that the error contributed to the outcome proceeding Dyess, the action or at issue. State v. 124 (1985); 525, 547, Wis. 2d 543, 222 N.W.2d see also Tills, Town Geneva v. 2d 184-85, 129 Wis. (1986) (noting N.W.2d 701 that the set standard forth cases). Dyess applies in civil cases as well as criminal possibility pos- A reasonable of a different outcome is a sibility sufficient to "undermine confidence in the Dyess, .(quotation outcome." Wis. 2d at 544-45 omitted). erroneously Where admitted evidence rights affects constitutional or where the outcome of proceeding weakly supported the action or at issue is by reviewing record, court's confidence in the may easily outcome be more undermined than where erroneously peripheral admitted evidence was strongly supported by the outcome was evidence by untainted Id. at error. 545. mind, 97. With this standard in we examine surrounding
the facts the circuit court's admission opinions. primary Cacioli's The issue the case at gloves hand was whether S&N's were defective and unreasonably dangerous. opinions Cacioli's low- protein glove high-protein glove than a safer high proteins gloves that the levels of latex in S&N's directly unacceptable rendered them unsafe and addressed this issue. However, heard similar evidence sources,
from several other were not affected which *54 experts jury example, told the For one of Green's error. study percent of tested latex-sensitive of a in which 75 gloves, high-protein latex but reacted to individuals Similarly, low-protein gloves. only percent reacted pro- jury statement, of the ACAAI which learned allergen gloves "Only low latex should vided: purchased and This reduce the occurrence used. will among personnel and should reactions sensitized addition, In two of reduce the rate of sensitization." high-protein experts testified that Green's medical gloves likely low-protein gloves than are much more allergic Further, reactions. one cause sensitization high-protein, specifically testified that of these doctors unreasonably powdered gloves are latex defective agreed dangerous. experts And even two of S&N's gloves high-protein gloves. low-protein are safer than Mayo regarding Finally, jury heard evidence gloves were found to Clinic studies in which S&N's considerably higher protein have levels than almost all gloves. tested brands of latex medical other jury did Moreover, 99. learned that Cacioli expert not consider himself to be an protein on how different glove experts levels affect users. One of S&N's jury testimony deposition read to the Cacioli's which expertise. specifically Thus, he disclaimed such opinions credibility and foundation of Cacioli's was jury, into doubt before the and the could thrown any informed decision to attach make an whether opinions. credence to those light facts, discern a In of these we cannot possibility that, the circuit court's
reasonable absent opinions, of the trial admission of Cacioli's the outcome any Consequently, we con- have been different. would admitting clude that the circuit court's error testimony therefore, and, harmless does was Cacioli's a new trial. *55 not warrant
V has failed conclusion, In we hold that S&N 101. jury Con- verdict should not stand. show that the to fully trary and contentions, the circuit court to S&N's fairly jury regarding the relevant law. instructed the product explained, a can be deemed circuit court As the solely unreasonably dangerous based and defective product. expectations upon about consumer consumer-contemplation test is Indeed, because the products lia- strict standard in Wisconsin the exclusive product bility a to be law, if a trier of fact is find unreasonably dangerous, it must do so and defective expectations solely upon about the consumer based Additionally, product circuit court cor- issue. at product rectly jury can deemed that a be instructed unreasonably dangerous regardless of defective and product knew or the manufacturer of that whether product the risk of harm could have known of emphasized, repeatedly presented. As court has this foreseeability this state's strict is not an element of law. argument reject that as We further S&N's product defective rule, cannot be deemed a blanket unreasonably dangerous that it based on the fact and minority allergic its in a consumers. reactions causes that, unbe- contains a substance Where ordinary consumer, can cause an knownst prod- allergic of the number reaction in a substantial may deemed defective users, uct's dangerous. present unreasonably case, because In the the ordi- at trial indicated introduced the evidence nary at the time of Green's not aware was consumer injuries protein powder that the levels and cornstarch gloves allergic in S&N's could cause an reaction 5 to percent gloves' consumers, we conclude that jury reasonably gloves found S&N's to be defective unreasonably dangerous. Finally, agree ¶ 103. while we with S&N that the opinions circuit court's admission Cacioli's was in agree error, we do not with S&N that this error necessi- tates a new trial. Due to the substantial amount opinions evidence that mirrored Cacioli's and because was informed that Cacioli did not consider qualified provide opinions, himself such we deter- mine that the circuit court's error was harmless. foregoing
¶ 104. For reasons, we conclude *56 legally verdict the case at hand is sound. Accordingly, we affirm the decision of the court of appeals, upheld entry judg- which the circuit court's ment on the verdict.
By appeals the Court.—-The decision of the court of is affirmed.
¶ 105. SHIRLEY ABRAHAMSON, S. CHIEF (concurring). join JUSTICE I all but Part IV of the majority opinion. join I do not Part IV because I do not agree opinion with what the identifies as the eviden- tiary present opinion error in the case. The concludes erroneously that the circuit court exercised its discre- finding qualified give expert tion in Dr. Cacioli to testimony safety. regarding glove appellate
¶ uphold 106. An court will a circuit discretionary expert court's decision that an witness is qualified particular question a answer if the circuit applied proper court record, "examined the facts a standard, using process, legal reached and, rational conclusion."1 reasonable grounds majority for forth sets two 107. The discretionary
concluding deci- circuit court's that the glove testimony regarding Dr. Cacioli's to admit sion safety First, exercise of discretion. an erroneous was requisite qualifications to not have the Dr. Cacioli did safety glove regarding not a testify he "was because training, experience, or doctor, no formal had medical allergy, first-hand and had no in latex education protein why knowledge various levels of how impor- Second, and "more individuals."2 affected any "specifically tantly," disclaimed Dr. Cacioli expert stating safety by expertise" glove "I'm not an question response part to a of his area" as in that regarding protein safety high levels.3 the relative concluding circuit court erro- that the Neither basis admitting neously Dr. its discretion exercised safety testimony glove our from follows on Cacioli's case law.
rH majority by first basis offered As proposition authority ample opinion, exists for the testimony give may expert qualified an individual profes- and observation on association with based Additionally, particular I see no in a field.4 sionals *57 1 See majority op. 89. at ¶
2 See
majority op. at
93.
¶
3 majority op.
See
at ¶
4
(Cacioli
Compare
his knowl
at
93
"culled
majority op.
and
observing medical doctors
associating with and
edge by
allergy and
study of
to the
their careers
who had devoted
others
Ahearn,
Henning
149,
v.
immunology") with
Wis. 2d
230
1999)
(Ct.
(concluding
an
App.
178-82,
14
601 N.W.2d
841
majority's
support in the case law for the
conclusion
testify
that Dr. Cacioli could not
because he "was not a
experience, training,
doctor";5
medical
lacked "formal"
allergy;6
or education in latex
and did not
"first-
have
knowledge"
proteins
allergic
hand
of how latex
affect
Experience,
key.
licensure,
individuals.7
is the
attorney
practice
pre-
whose
focused on business should not be
testimony
cluded
regarding
practice
from
of business
executive).
merely
executives
because he was not a business
5Wisconsin case
repeatedly
law has
stressed that a wit
ness's "label" is not relevant
to the
determination
whether a
qualified
testify
expert
witness is
as an
given subject.
on a
See, e.g.,
Ins.,
Employers
Karl
v.
284,
297,
78 Wis. 2d
254
(1977) ("law traditionally
255
N.W.2d
has permitted limited
testimony
by
of medical
one
nature
not licensed as a medical
(citation
doctor,
is,
fact, qualified
expert")
if he
as an
and
v.
quotation
omitted);
Wester
Bruggink,
190 Wis. 2d
(Ct.
1994) ("[W]hether
319-20,
App.
sent case "I am not an statement Dr. Cacioli's explanation expert about area" and Dr. Cacioli's in this safety alongside knowledge issue, on the the state safety.12 questions regarding glove response to the his 195, 212, Co., 2d 278 Wis. N.W.2d v. Gen. Elec. 89 8 Black 1979). (Ct. App. 9 majority op. at 90-91. See ¶¶ 10 majority op. at 94. See Leahy v. Kenosha majority op. at 94 — 95 with Compare ¶¶ (Ct. 1984) App. 441, 453, 348 Memorial, N.W.2d 607 Wis. 2d not an that she was (noting had admitted the witness many as listing factor one particular field but this expert in a evaluating qualifications her to consider for the circuit court expert). as an majority op. at ¶
12 See *59 explanation go Dr. Cacioli's statement and to the weight, admissibility, testimony. not the of his Like the majority opinion, any however, I conclude that error was harmless.13
HHHH
Finally,
¶
I
111.
wrote a concurrence on the issue
error in In
harmless
re the Termination
Parental
Rights
Jayton
Evelyn
Tykila
S.:
S.,
C.R. v.
2001 WI
(Abra
¶¶
110
37-42, 246
1;,
Wis. 2d
¶ separately. reasons, 112. For I these write ¶ I am authorized to state that Justice ANN joins opinion. WALSH BRADLEY I Part of this (concurring). ¶ CROOKS, 114. N. PATRICK J. I agree majority's today sep- with decision and write arately only upon to remark the harmless error test majority. majority op. utilized See at 96. The majority's standard is whether there is "a reasonable possibility that the error contributed outcome," to the possibility" and that a "reasonable is one "sufficient to (quoting 'undermine confidence in the outcome.'" Id. Dyess, State v. 124 525, 544-45, Wis. 2d 370 N.W.2d (1985)). 222 Since the standard for harmless error is (Town civil, same for criminal, as well as cases v. Tills, 167, 184-85, Geneva 129 Wis. 2d 384 N.W.2d (1986)), imperative 701 it that the standard be accu- rately conveyed.
13 majority op. See at 96-100. ¶¶
844
years,
past 35
this court
at least the
115. For
formulating
a standard
harmless
wrestled
has
with
e.g.,
See,
State,
450, 456-57,
v.
24 Wis. 2d
Pulaski
error.
(1964);
Spring,
333,
2d
State v.
48 Wis.
129
204
N.W.2d
(1970);
State,
v.
57 Wis.
Wold
339-40, 179 N.W.2d
(1973);
Grant,
v.
356-57,
State
2d
204 N.W.2d
(1987).
attempt
In an
45, 406
139 Wis. 2d
N.W.2d
single,
error,
for harmless
formulate a
uniform test
prejudice
"conclude[d]
Dyess
formu-
as
that the test
statements of
Strickland subsumes
various
lated in
over
that this court has used
the harmless error test
years." Dyess,
The
at 545.1
Strickland
Wis. 2d
Washington, 466 U.S.
v.
referred to is Strickland
case
*60
(1984),
is a
is whether "there
668,
and the test
693
probability"
"the
error,
for" the
that "but
reasonable
proceeding
different. A
have been
would
result
probability
probability sufficient
is a
reasonable
694
466 U.S. at
the outcome."
undermine confidence
added).
obviously adopted
(emphasis
Dyess
test,
incorrectly
there
no real differ-
assumed that
was
but
using
possibility"
instead
"reasonable
ence between
probability."
Granted,
845
added).
(emphasis
major-
However, as evident in the
ity's opinion
today,2
here
Wisconsin courts have
frequently
possibility,"
used
term
"reasonable
that,
have not indicated
in the context of a harmless
possibility
probability.3
standard,
error
means
sig-
¶ 116.
can
There
be no
that there
doubt
is
reasonably
nificant difference between what
probable
reasonably possible.
possibil-
and what is
"A
ity
thing
test is the next
to automatic reversal." Wold v.
(1973).4
State,
344,
57
356-57,
Wis. 2d
124 Wis. 2d
Strickland,
at 545
466
694)),
only possibly
U.S. at
if that error need
under-
2
Leichtfuss,
See
111,
also
v.
2001 WI
246 Wis. 2d
Koffman
31,
201;
630
Ripp,
113,
N.W.2d Martindale v.
2001 WI
246 Wis.
67,
698; Evelyn
Tykila S.,
2d
629
110,
N.W.2d
v.
C.R.
2001 WI
1,
768;
2dWis.
628 N.W.2d
and Nommensen v. American
Co.,
112, 246
(I
132, 629
Cont'l Ins.
2001 WI
Wis. 2d
N.W.2d 301.
cases.)
have written
dissents
concurrences in these
But see
Lindell,
108,
State v.
2001 WI
245 Wis. 2d
N.W.2d
(Strickland's probability sufficient to undermine the confidence
in the outcome test used to determine ineffective
assistance
claim).
counsel
research,
According my
on
Dyess
few occasions since
court,
majority opinion,
has this
in a
noted that reasonable
*61
possibility
probability.
means reasonable
See State v. Arm
strong,
n.40,
223 Wis. 2d
(1999);
372
mine the confidence in the outcome, rather than probably, appellate courts, and circuit courts consider- ing post-convictions motions after verdict motions, and invading purview jury. find will themselves ofthe A jury, cornerstone of the common law is deference to the by determining alleged which is diluted whether the possibly, only possibly, may error have affected the jury's decision. I do not take issue with the term "reasona- possibility," long
ble
so
it
as
is made clear that
this
probability,
probability
term means reasonable
is
applied. Accordingly,
the standard to be
I offer the fol-
lowing
error,
test
harmless
which makes clear that
Dyess'
possibility"
use of the term "reasonable
is
require
probability":
intended to
"reasonable
805.18(2)
Wisconsin Stat.
provides that an
§
error
requires
only
reversal
where it has "affected the
rights
substantial
of the party" claiming error. We
long recognized
have
that the focus of a court's anal-
ysis
whether,
under
this statute is
in light of the
applicable
of proof,
significant
burden
the error is
enough to "undermine confidence in the outcome" of
Dyess,
the trial.
¶ I For reasons stated 120. fully concur. JON to state that Justice I am authorized opinion. joins this
P. WILCOX (dissenting). I SYKES, J. S. 122. DIANE seriously majority opinion respectfully The dissent. step as it has evolved law out of with (Second) adopted the Restatement since this court Dippel 443, 155 § Sciano, 37 Wis. 2d 402A in v. Torts (1967). majority distinctions The blurs the N.W.2d manufacturing, design, and failure-to-warn between Black's fresh; in the heat of action." the action is "While Dictionary (7th 1999). Law ed. *63 majority keeps The defects. also Wisconsin in rapidly dwindling minority
the much-criticized and
of
jurisdictions
rely exclusively
on a consumer con-
templation
liability
design
test to determine
defect
finally,
majority opinion’s language
cases. And
foreseeability
product liability
about the role of
law
misleading
and overbroad.
liability
imposed upon
123. Strict
in tort is
sell-
products
unreasonably
ers of defective
that are
dangerous. Dippel,
(adopting
¶ 124. In 1997, the American Law Institute (Third) issued Restatement Torts: Lia- Products bility. In the introduction Restatement, Third product liability the ALI describes the evolution of law way: in this
To place law, understand in the its liabil- ity must be examined in historical In context.
The American Law adopted part Institute 402A as § 402A Second of Torts. Section
of the Restatement Liability of Product of Seller "Special entitled was marked Physical to User or Consumer." It for Harm privity-free recognition first the Institute The products. sellers of defective strict privity to eliminate so major of 402A was thrust § consumer, having to estab- a user or without against a bring an action negligence, lish could any member manufacturer, against as other as well con- chain that had sold of a distributive *64 manufacturing Section 402A had taining a defect. liability or say design little to about for for defects warnings. In the inadequate products sold with in their early litigation were 1960s these areas of infancy. liability more restating products of
In law century later, the Institute had quarter than a judicial that had it thousands of decisions before liability in a manner fine-tuned the law of Second was hardly imaginable when Restatement not occurred to those mem- written. Issues that had drafting Restatement Second had involved in bers contention and debate in points of serious become governing standard the courts. What should be warning liability ? Is there a cause of design and for drug design? What prescription action for defective plaintiff govern rule when a establishes should a result of a defect harm was suffered as enhanced beyond that would product, in a which defendant's causes, plaintiff resulted from other but have the enhancement? quantify cannot the amount of Third, every On of Restatement page almost Liability, the Institute has had Torts: Products the land- part that were not respond questions therefore, is, years ago. This Restatement scape Second as total overhaul of Restatement an almost liability sellers of it of commercial concerns products. (Third) Liability,
Restatement Torts: Products at 3 (1998) added). (emphasis ¶ 125. The Third Restatement sets forth the fol- lowing general product liability: rule of strict 1. Liability of
§ Commercial Seller or Distributor by Harm Caused Defective Products
One engaged in the business of selling or other- wise distributing products who sells or distributes a defective subject liability for harm to persons or property caused the defect. (Third) Liability §
Restatement Torts: Products (1998). ¶ 126. The Third Restatement also sets forth the separate developed standards of that have manufacturing design over time for defects, defects, upon inadequate and defects based instructions or warnings: Categories
2.§ of Product Defect when, A is defective at the time of sale distribution, defect, it contains a manufacturing *65 design, defective in or is defective of because inad- equate warnings. instructions or product: A (a) contains a manufacturing defect when the product from departs design its intended even though possible all care was prepa- exercised the marketing product; ration and (b) design is defective in when the foreseeable posed by product risks of harm the could have been by reduced or the adoption avoided of a reasonable design by distributor, alternative seller the or other a predecessor or in the commercial chain of distribu- tion, and the design omission of the alternative renders the product reasonably safe; not
(c) is defective because of inadequate instruc- warnings tions or when the foreseeable risks of reduced by could have been posed harm of instruc- provision or reasonable avoided distributor, warnings by the seller or other tions or in the commercial chain of distribu- predecessor or a tion, of the instructions or and the omission reasonably safe. warnings renders the (Third) Liability § 2 Torts: Products Restatement of (1998). adopt Third Restatement's ¶ I 127. would developed recapitulation since the as it has of law especially Dippel, in the areas Restatement and Second warning design defects, the Restate- which acknowledge addressed in were not authors ment's § 402A. without fault makes sense 128. Strict manufacturing it is often defect cases because
in impossible wrong prove manufac- went in the what dangerous turing process defect, and to cause consumer, and the the seller because, as between position or to control distribute seller is a better through quality control, insurance, and risk loss higher prices. Dippel, 450-51; Restate- 37 Wis. 2d at (Third) Liability § 2 cmt. a Torts: Products ment (1998). design product liability However, warning a different rationale: defects has defects, manufacturing design contrast
In instruc- inadequate and defects based on defects on a different warnings predicated are tions or place, such responsibility. In the first concept by reference to the cannot be determined defects marketing standards design own manufacturer's very ones that standards are those because of inde- as unreasonable. Some sort attack plaintiffs *66 advantages assessment pendent disadvantages, to which some attach the label "risk- utility balancing," necessary. Products are not generically merely defective they because are dangerous.
In general, the rationale for imposing strict lia- bility on manufacturers by harm caused manufacturing defects does not apply in the context of imposing liability for design defective and defects based inadequate on warning. instruction or Con- sumer expectations proper product as to design or warning are typically more difficult to discern than Moreover, the case of a manufacturing defect. setting element deliberation in appropriate levels of design safety directly analogous is not to the set- ting of quality levels of control the manufacturer. When a quality manufacturer sets its control at a level, certain given it is aware that a number of products may assembly leave the line in a defective condition and cause injury to innocent victims who generally can nothing injury. do impli- avoid The deliberately drawing cations of lines with respect product design safety are different.... agree that,
Most courts for the system efficient, to be fair and balancing of risks and judging benefits in product design and marketing light must knowledge be done in of risks and techniques reasonably risk-avoidance attainable at the time of distribution. To hold a manufacturer liable for a risk that was not foreseeable when the might was marketed foster increased man- safety. ufacturer investment But such investment by definition would be a matter of Furthermore, guesswork. may manufacturers per- suasively judged by ask to be a normative behavior reasonably standard possible to which it is for man- reasons, ufacturers For conform. these (b) (c) speak being Subsections *67 reasonably are only when risks defective foreseeable. (Third) Liability § 2 Torts: Products
Restatement
of
(1998).
a
cmt.
arising
product defects
on
130. Wisconsin law
warnings approxi-
inadequate
or
instructions
out of
liability
not
Restatement,
in that
the Third
mates
imposed
knew or should have known
unless the seller
danger
particular
the use of
connected with
of the
Shoupe,
product.1
357, 368,
2d
596
v.
228 Wis.
Tanner
(Ct.
1999); Westphal
App.
v. E.I. du Pont de
N.W.2d 805
347, 363,
¶ 132. Just as there is little
for
imposing liability
warning
proof
for
lack of
absent
by
that foreseeable risks could have been reduced
warning,
justification
imposing
there is little
for
liabil-
ity
product design
proof
for a
defect absent
by
foreseeable risks could have been reduced
an alter-
design.
say
product
nate
liability
This is not to
that strict
synonymous
negligence;
with
it is not. See
Fuchsgruber
Accessories,
v.
Inc.,
Custom
81,
2001 WI
(strict product
¶ 2, 244
Wis. 2d
"(1) [Cjonformity design of defendant's at industry manufacturers in its practices of other 2) manufacture; the open time of and obvious .3) danger;. alleged . the extent of the nature of very to have product alleged claimant's use of the time involved injury period caused the prior the claimant and others such use .4) . injury any harmful incident. . the abil- without ity danger to eliminate without the manufacturer making it impairing product's usefulness 5) unduly likelihood of expensive; and *69 the relative product's design." injury resulting present from the Ridge (quoting Sumnicht, 121 2d at 372 Collins v. Wis. 1975)). (7th Co., 591, 594 This list Tool 520 F.2d Cir. lot like the formulation contained in sounds an awful commentary, the Third Restatement and its and there- language in fore conflicts with elsewhere Sumnicht contemplation primacy the of the consumer test. about opinion majority internal in The resolves this conflict contempla- the favor of exclusive reliance on consumer quoted the of tion test. I would not. As list factors above clear, make consumer and the Third Restatement expectations dispositive in the are relevant but not determination of whether a product design is defective and unreasonably dangerous.3 134. For the I foregoing reasons, would adopt
¶ 2 of Third the Restatement and reverse and remand § of this case for its standard of application liability. That is, the in the design defect latex alleged gloves caused an reaction in Linda allergic Green would be evaluated based whether "the foreseeable risks of upon harm by product could have been or posed reduced a by adoption avoided reasonable alternative . .and design. the omission design alternative Restatement renders safe." product reasonably (Third) 2(b) (1998). Liability Torts: Products § I Accordingly, dissent. respectfully I am authorized to state that Justice ¶ DAVID T. joins PROSSER this dissent.
3 majority actually opinion goes The so far as to state that products liability strict applies "Wisconsin law the consumer- contemplation only test consumer-contemplation test products liability Majority op. all strict cases." at is 34. This above, considerable overstatement. As noted we do not use the contemplation consumer test in cases which the inadequate an warning. Similarly defect is or nonexistent over majority's stated assertion that "under no circumstances" product liability strict plaintiff prove case "must the presented the risk of harm that caused his or her injury Majority op. above, was As foreseeable." at 57. noted imposed product liability premised is not in strict cases inadequate or warnings on nonexistent unless the seller knew danger, is, danger should have known unless the was foreseeable.