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When Can I Pursue Compensation for an Injury from a Dangerous Product?
In 2011, former Wisconsin Governor Scott Walker signed the Omnibus Tort Reform Act, which changed preexisting state laws related to product liability. In particular, Chapter 895 of the Wisconsin Statutes was altered extensively. These changes placed a greater burden on plaintiffs when filing a personal injury lawsuit against a manufacturer or distributor of a potentially dangerous product.
The Reason for the Law Change
The legislative history of Wis. Stat. §895.046 reveals that the legislation was prompted by two Wisconsin Supreme Court decisions, Collins v. Eli Lilly Company, 116 Wis.2d 166 (1984), and Thomas v. Mallet, 2005 WI 129, 285 Wis. 2d 236. Legislators determined that a change in the law was necessary to make Wisconsin a state that was “good for business” because they deemed the Mallet decision as creating a hostile environment for businesses.
Reasonable Alternative Design
Under the prior law, a plaintiff could prove injury using the “Consumer Expectations Test.” This test required plaintiffs to prove that the product was dangerous beyond what an ordinary consumer would expect it would be.
The Wisconsin legislature decided that the consumer expectation test was too broad and subjective and instituted the “Reasonable Alternative Design” standard. Now, a plaintiff must demonstrate that his or her injury could have been prevented if the designer or manufacturer had used an alternative design in the product. A plaintiff still can allege a defect based on inadequate instructions or warnings for the product.
To establish the liability of a designer or manufacturer, a plaintiff is required to prove:
1. A product is defective;
- The defective condition caused the product to be unreasonably dangerous;
- The defective condition existed when the product left the control of the designer or manufacturer;
- The product reached the consumer without being substantially changed from the state in which it was sold; and
- The defective condition was a cause of his or her injuries.
A plaintiff also can hold a seller or distributor liable if:
- The seller or distributor has contractually assumed one of the manufacturer’s duties to manufacture, design, or provide warnings or instructions with respect to the product;
- Neither the manufacturer nor its insurer is subject to service of process within the State of Wisconsin; or
- A court determines that the plaintiff would be unable to enforce a judgment against the manufacturer or its insurer.
Not surprisingly, attorneys who represent injured parties and those who represent manufacturers and insurance companies debate the need for and the consequences of the change in the law. Plaintiffs’ counsel generally argue that the “Reasonable Alternative Design” standard is too high, resulting in consumers being denied due compensation. Manufacturers and defense counsel generally maintain that the amendment is a fair compromise, providing protection against frivolous lawsuits and encouraging the safer design of products for consumers.
Contact a Milwaukee, WI Personal Injury Attorney
If you have been injured by a dangerous or defective protect, the Milwaukee product liability lawyers at Gimbel, Reilly, Guerin & Brown, LLP can help you pursue compensation from the manufacturer, distributor, or seller who was responsible for your injury. For a free consultation, contact our offices at 414-271-1440.
Sources:
https://docs.legis.wisconsin.gov/statutes/statutes/895.pdf
https://www.wisbar.org/NewsPublications/WisconsinLawyer/Pages/Article.aspx?ArticleID=2050
https://scholar.google.com/scholar_case?case=9309395955844685078&q=285+Wis.+2d+236&hl=en&as_sdt=4,50&as_vis=1
https://scholar.google.com/scholar_case?case=3286474234896154730&q=116+Wis.+2d+166&hl=en&as_sdt=4,50&as_vis=1
