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Mohr v. St. Paul Fire & Marine Ins. Co.12/18/2003
oduct Liability
. Since 1967 Wisconsin has adhered to the rule of strict product liability set forth in Restatement (Second) of Torts § 402A (1965). Green v. Smith & Nephew AHP, Inc., 2001 WI 109, , 245 Wis. 2d 772, 629 N.W.2d 727. To prevail on a claim of strict product liability, a plaintiff must prove all the following elements:
(1) that the product was in defective condition when it left the possession or control of the seller, (2) that it was unreasonably dangerous to the user or consumer, (3) that the defect was a cause ... of the plaintiff's injuries or damages, (4) that the seller engaged in the business of selling such product or, put negatively, that this is not an isolated or infrequent transaction not related to the principal business of the seller, and (5) that the product was one which the seller expected to and did reach the user or consumer without substantial change in the condition it was when he [or she] sold it.
Id.
. Wisconsin has adopted comments g and i to Restatement (Second) of Torts § 402A. These explain that a product is defective if it is "in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him [or her]"; and that for a product to be considered "unreasonably dangerous," it must be "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Green, 245 Wis. 2d 772, (quoting Restatement (Second) of Torts § 402A, cmts. g & i (1965)).
. "`In order to prevent product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use.'" Westphal v. E.I. du Pont de Nemours & Co., 192 Wis. 2d 347, 363, 531 N.W.2d 386 (Ct. App. 1995) (quoting Restatement (Second) of Torts § 402A cmt. j). A warning is required when the seller has "reason to anticipate that danger may result from the particular use ... and a product sold without such warning is in a defective condition." Id. (quoting Restatement (Second) of Torts § 402A cmt. h). The warning must be adequate and appropriate under the circumstances. Tanner v. Shoupe, 228 Wis. 2d 357, 367, 596 N.W.2d 805 (Ct. App. 1999). A manufacturer must anticipate the environment which is normal for the use of the product. Id. In other words, the manufacturer has the duty to foresee all reasonable uses and misuses and the resulting foreseeable dangers. Id. The duty to warn arises when the manufacturer has, or should have, knowledge of a dangerous use. Id. An inadequate warning on a product can, by itself, render the design defective. Id. Whether a warning is adequate is generally an issue of fact to be determined by the jury. Id. The jury is to consider all pertinent factors, such as the likelihood of a particular accident taking place and the seriousness of the consequences, in deciding whether the warning is sufficient to apprise the user of the particular hazard. Id.
. Mohr contends there are disputed issues of fact on the adequacy of the warning on the platform. His position is that the warning was inadequate because neither the label on the product nor the instructions contained information that five feet of water was needed to use the platform safely and, thus, the platform was defective and unreasonably dangerous. KDI's response is essentially the same as its response to the negligence claim: the warning was adequate because the high school was knowledgeable on the topic and the danger of injury was open and obvious.
. KDI appears to assume that the "sophisticated consumer" doctrine applies in a strict product liability ca
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