Running head: WISCONSIN PRODUCT LIABILITY LAWS 1
Wisconsin Product Liability Laws
WISCONSIN PRODUCT LIABILITY LAWS 2
Wisconsin Product Liability Laws
According to Find Law, a website dedicated to helping people find lawyers, “Defective or
dangerous products are the cause of thousands of injuries every year in the U.S.” (Find Law,
n.d.). If people are getting injured because of defective products, there must be some kind of
legislation that protects consumers. Product liability laws are laws that were created so that
people who are injured from a defective product can sue to recover damages. Keep in mind that a
defective product does not simply mean that the product is broken. The Business Dictionary says
that a defective product is “unfit for its intended use, dangerous or harmful for normal use, does
not carry adequate instructions for its use, or is inherently dangerous due to defective design,
assembly, or manufacture” (Business Dictionary, n.d.). If a product is dangerous to use, why
would people still use it? Sometimes the danger that lurks within a product is not visible, and
unfortunately it takes someone getting hurt before anyone notices that something is wrong with
it. It is these types of products that product liability laws protect us from. So then, whose laws
protect us?
During this class, we have learned that federal laws are the highest laws of the land. That
means that if a crime is committed, state courts must follow federal laws if there is a law in place
for that particular crime. What are the federal laws when it comes to product liability? There are
none. Product liability laws are created state by state and no two states have the same laws. So, if
someone is injured from a defective product in the state of Wisconsin, they would sue in
Wisconsin courts (that is where the product was when the injury took place) and follow
Wisconsin laws.
Wisconsin’s product liability laws were reformed in January 2011. Until then, product
liability fell on manufacturer and distributor. On January 27, 2011, Governor Scott Walker signed
into law the Omnibus Tort Reform Act (OTRA). This reform made significant changes to
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Wisconsin product liability laws and they were designed to protect businesses in Wisconsin.
These changes were also meant to encourage new businesses to come to Wisconsin without the
fear of strict product liability laws. The Omnibus Tort Reform Act went into effect on February
1, 2011. The next few paragraphs will discuss the former laws and the changes made with
OTRA.
The basis for manufacturer liability under products law covers what two types of liability
that a case can be brought to court under. The former law stated that products liability claims
were either under common-law theories of negligence or strict liability. Common-law theories of
negligence mean that there was a manufacturing defect, a design defect, or that the manufacturer
failed to warn of possible risks. Strict liability claims followed the “consumer contemplation”
standard that compels that plaintiffs prove that the product was more dangerous than the average
consumer could see. Under the Omnibus Tort Reform Act,
the legislation creates a statutory strict products liability claim that maintains the three
available theories on which a products liability claim may be based (manufacturing
defect, design defect, and failure to warn). The statute breaks with existing Wisconsin law
by expressly adopting a new standard stated in the Restatement (Third) of Torts,
published in 1997, requiring a plaintiff to prove that a reasonable alternative design
existed and the manufacturer’s failure to use that design rendered the product not
reasonably safe. The adoption of this standard brings Wisconsin’s law into alignment with
that of most other states. (Johanningmeier & Poland, 2011)
Like the former law, this reform requires a plaintiff to abide by the “consumer contemplation”
standard, but adds that they must also show that there was an alternative design.
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The second section of Wisconsin’s product liability law focuses on who is responsible.
The former law allowed a plaintiff to sue anyone in the distribution chain. That means that
manufacturers, distributors, and sellers could all be found liable. With the tort reformation,
the new legislation restricts the liability of a seller or distributor of a product to cases
where the manufacturer is held liable and: (1) the seller or distributor contractually
assumed the manufacturer’s duty to manufacture or design a safe product or provide
adequate warnings; (2) neither the manufacturer nor its insurer may be haled into court in
Wisconsin; or (3) the plaintiff could not enforce a judgment against the manufacturer or
its insurer. (Johanningmeier & Poland, 2011)
This means that only the manufacturer can be found liable.
The third section of Wisconsin’s product liability law centers around what a defense can
