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Mohr v. St. Paul Fire & Marine Ins. Co.12/18/2003
se, but it cites no Wisconsin cases addressing this issue. Haase was a negligence claim under Restatement (Second) of Torts § 388. In Shawver v. Roberts Corporation, 90 Wis. 2d 672, 676, 280 N.W.2d 226 (1979), see supra note 6, the inadequate warning issue was also addressed in the context of a negligence claim. While we have acknowledged the difficulty of distinguishing between a negligence claim and a strict product liability claim when both are based on an allegedly inadequate warning, see supra note 10, we are reluctant, without more guidance from the supreme court, to import doctrines from the former into the latter. We will therefore analyze KDI's arguments within the framework of Restatement (Second) of Torts § 402A only.
. We conclude that whether KDI had a "reason to anticipate that danger may result from the particular use"-that is, the use of the platforms to perform racing starts in less than five feet of water-encompasses what KDI knew or should have known about how the ordinary high school that purchased the platforms would use them. The level of knowledge on safe water depths of ordinary high school purchasers is relevant to this inquiry. However, as we have explained in the context of the negligence claim, the evidence on this point is conflicting.
. We also conclude that KDI's contention that the danger was open and obvious involves evidence relevant to the adequacy of the warning. If the danger of performing racing starts from the platforms in less than five feet of water is apparent to the ordinary high school purchaser, then KDI has reason to believe that high schools will place them accordingly and does not have reason to anticipate danger from placement in water that is too shallow. However, as we have already explained, the evidence on whether this danger was apparent to the ordinary high school is conflicting.
. As for the asserted obviousness of the danger as it relates to the question of Mohr's contributory negligence, contributory negligence may be a defense to a strict product liability claim. Green, 245 Wis. 2d 772, ; see also Fuchsgruber v. Custom Accessories, Inc., 2001 WI 81, , 244 Wis. 2d 758, 628 N.W.2d 833 (explaining that the act to which the seller's responsibility attaches in a strict product liability case is not negligence but rather placing a defective product in the stream of commerce; therefore, when contributory negligence is an issue, the comparison is between the extent to which the plaintiff's injuries are attributable to his or her negligence and the extent to which they are attributable to the product's defective condition). For the reasons we have explained in our discussion on the negligence claim, there are disputed issues of fact concerning whether Mohr was contributorily negligent and, if so, to what degree.
Claim Against the WIAA
. Mohr contends there are disputed issues of fact both as to whether the WIAA was negligent in adopting Rule 2-7-2 and as to whether public policy precludes imposing liability on the WIAA even if it was negligent. The WIAA responds that the trial court correctly ruled that, as a matter of law, the WIAA had no duty to independently assess the adequacy of Rule 2-7-2 and, in any event, based on the undisputed facts it would be against public policy to impose liability on the WIAA for Mohr's injuries.
. In Wisconsin, the rule is that every person has a duty to use ordinary care in all of his or her activities, and a person is negligent when that person fails to exercise ordinary care. Alvarado v. Sersch, 2003 WI 55, , 262 Wis. 2d 74, 662 N.W.2d 350. Under the general framework governing the duty of care:
Ordinary care is the care which a reason
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