MADISON, Wis. (Legal Newsline) - Ruling for the first time on a products liability statute passed in 2011, the Wisconsin Supreme Court said a utility worker can sue the company that made the tongs he used to lift a telephone pole that fell and injured him.
In a 4-3 decision, the state high court rejected the argument of Columbus-McKinnon Corp. that the new law tightened the rules for plaintiffs in products liability cases and replaced common-law rules with a test balancing the risk of a product against its utility.
Matthew Murphy was injured in 2013 after a 30-foot utility pole fell on him while he was trying to load it a trailer using “Dixie tongs,” which resemble old-fashioned ice tongs. A six-year lineman, Murphy was working alone and said he had no recollection of the accident because of his injuries.
Murphy sued Columbus-McKinnon Corp, along with WP&L and the dealer that sold the utility the tongs. After two years of discovery, CMC moved for summary judgment, arguing Murphy couldn’t support his claim the tongs were defective. The trial court granted CMC’s motion, but an appeals court reversed, ruling a jury must decide whether the CMC design was defective compared to an alternative design called Hogg-Davis jaws.
The Wisconsin Supreme Court affirmed the appeals court in a Dec. 28 decision by Justice Patience Drake Roggensack that was supported by the Wisconsin Association for Justice, a trial lawyer organization. In it, the majority ruled that when the Wisconsin Legislature passed Statute 895.047, it retained important elements of the common law that preceded it, including a test for whether a product is “unreasonably dangerous” that hinges upon what a consumer would know about the risks.
CMC argued the law replaced that with a requirement plaintiffs prove there was a safer alternative design that could was economically realistic to adopt, as recommended in the Restatement (Third) of Torts, a guidebook for courts. But the Supreme Court said it never adopted the Restatement’s principles and the Legislature created a “unique, hybrid products liability claim” that retained the consumer test.
The plaintiff and CDC disagreed about basic facts including whether Murphy had broken the utility’s rules by standing under the pole and whether he had placed the tongs correctly. But that only meant a jury had to decide what actually happened, the high court ruled. And Murphy could argue that the tongs were defective because they were more likely to slip than the Hogg-Davis jaws, which had multiple teeth.
“Line technicians would not expect the Dixie tongs to pose a danger beyond what they could contemplate, such as the tongs losing gripping force based on a teetering pole,” the court concluded.
Justice Brian Hagedorn partially dissented, joined by Justices Annette Kingsland Ziegler and Rebecca Grassl Bradley. While he agreed the consumer-contemplation test was included in Wisconsin law, he said Murphy’s claim failed that test. Utility workers are trained to use Dixie tongs and lifting heavy poles is inherently risky, he wrote. CMC wasn’t aware of any other cases where its tongs slipped and allowed a pole to injure someone, he said, and even Murphy’s expert couldn’t cite another example.
“The risk of danger or even death does not mean that a product is unreasonably dangerous to the end-user,” he wrote. “If mere danger sufficed, every chainsaw, extension ladder, and construction vehicle would qualify. That is not the law.”