Wisconsin Product Liability Law
A Summary of Proposed Changes

By James Hough, The Hamilton Consulting Group

May 9, 2005

© 2005 The Hamilton Consulting Group

Overview

Product Liability Law in Wisconsin is based predominately on common law as interpreted by case law, with some specific statutory provisions. Product liability is a strict liability theory that does not require proof of negligent conduct but relates directly to product defect. 

 Proposed Legislation

Two proposals, companion bills, have been introduced in the 2005 Legislative Session. Senate Bill 58 (Kanavas & others) passed the State Senate on May 3, 2005. Assembly Bill 101 (Huebsch & others) has been recommended for passage by the Assembly Judiciary and is ready for scheduling for floor action.

The proposed legislation would assist manufacturers by requiring proof of a “reasonable alternative design” to prove a defective design, moving Wisconsin away from the much broader and loose “consumer expectation” test, which is followed in only four states. The proposal also excludes “subsequent remedial measures” from being introduced as evidence of product defect and imposes a 15 year statute of repose for most products.

The proposed legislation would also remove sellers from strict (product) liability litigation (not negligence) whenever there is a viable manufacturer that can be sued in the state and is not judgment proof. It also provides a sealed container defense, again where there is a viable manufacturer that can be sued in the state and is not judgment proof. 

The proposed legislation also addresses the joint and several liability issue created by a 2001 Supreme Court decision which held that the positive changes to joint and several liability adopted in the 1995 session do not apply to strict liability cases, including products cases, contrary to the belief of most proponents of the ’95 legislative enactment.

Specific Provisions

The specific provisions of the bill:

• Define the basis for a manufacturer’s liability;
• Require proof of a reasonable alternative design to prove a defective design;
• Provide a defense where damage arises from an inherent characteristic of the product that is open and obvious;
• Provide a defense where damage results from product misuse, alteration or modification;
• Preclude liability of a seller unless the manufacturer is not subject to service within the state or a judgment could not be enforced against the manufacturer;
• Preclude liability of a seller unless the seller failed to exercise reasonable care in assembling, inspecting or maintaining the product or in giving warnings or instructions;
• Provide a rebuttable presumption defense for intoxication;
• Apply Wisconsin’s Joint and Several Liability laws to product liability cases;
• Exclude from evidence remedial measures taken subsequent to the plaintiff’s damages for purposes of showing a manufacturing defect in the product; and,
• Create a 15-year statute of repose except in cases where the defective product caused a latent disease that did not manifest itself within that 15 year period (e.g. asbestos) and unless the manufacturer made specific representations that the product will last beyond 15 years.