Murphy v. Columbus McKinnon Corp.

Citation2021 WI App 61,399 Wis.2d 18,963 N.W.2d 837
Decision Date08 July 2021
Docket NumberAppeal No. 2020AP1124
Parties Matthew W. MURPHY, Plaintiff-Appellant, Wisconsin Power and Light Company, Involuntary-Plaintiff, v. COLUMBUS MCKINNON CORPORATION, Defendant-Respondent.
CourtWisconsin Court of Appeals

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Douglas J. Phebus and Victor M. Arellano of Arellano & Phebus, S.C., Madison.

On behalf of the defendant-respondent, the cause was submitted on the brief of Shannon M. Trevithick and Debora F. Pagel of Britton & Associates SC, Mequon, and Kevin J. English and Erin E. Connare of Phillips Lytle LLP, Buffalo, New York.

Before Blanchard, Kloppenburg, and Nashold, JJ.


¶1 Utility line technician Matthew Murphy was injured while trying to load a wooden pole from the ground onto the bed of a trailer. Murphy lifted the pole using a set of metal tongs attached to the end of the winch line of a truck-mounted boom that he operated by remote control, but the pole fell and struck him. The tongs were manufactured by Columbus McKinnon Corporation (CMC). In this products liability lawsuit, Murphy makes a claim of strict product liability for a design defect based on WIS. STAT. § 895.047(1) (2019-20) and also a claim of common law negligent design.1 Murphy's theory on both claims is that CMC used a defective design in manufacturing the tongs. The circuit court granted summary judgment in favor of CMC on both claims and Murphy appeals.

¶2 Based on the summary judgment materials, we conclude that there are genuine issues of material fact to be resolved by a jury on both claims. Regarding the strict liability claim, we conclude that CMC fails to show that there is insufficient evidence to reasonably support the following possible findings: that CMC's design of the tongs was defective because the foreseeable risks of harm they posed could have been reduced by CMC's adoption of a reasonable, alternative tongs design; that CMC's omission of the alternative tong design rendered its tong design not reasonably safe; that the defective tong design rendered them unreasonably dangerous to persons or property; and that the defective design was a substantial factor in causing Murphy's injuries. See WIS. STAT. § 895.047(1)(a), (b), (e). Regarding the negligent design claim, we conclude that CMC fails to show that the evidence submitted on summary judgment is insufficient to reasonably support a finding that CMC's alleged negligence exceeded Murphy's alleged negligence.

¶3 However, we affirm the circuit court's ruling that Murphy has failed to identify evidence sufficient to sustain either claim based on a second alternative design for lifting wooden utility poles that Murphy initially offered.

¶4 Accordingly, we reverse the circuit court's summary judgment decisions, but affirm its ruling that there is no genuine issue of material fact regarding the second alternative design.


¶5 On the day of the accident Murphy was employed by a utility company. He was accompanied by a coworker, but at the time of the accident Murphy alone attempted to lift a wooden utility pole from the ground onto a trailer. To power such a lift, line technicians use a winch line attached to a truck-mounted boom. The boom is controlled by a remote wireless device. This task ordinarily requires the technician to lift the pole roughly parallel to the ground to a minimum height of approximately six feet.

¶6 At issue is a set of metal tongs used for lifting or dragging wooden poles with a so-called Dixie design.2 CMC is the parent of the company that designed and manufactured the particular Dixie tongs at issue here in or around 2000, when the utility bought them new. Dixie tongs in some ways resemble old-fashioned tongs used to carry ice blocks. They have one tooth on each side. The two teeth are supposed to attach to a wooden pole by digging into opposite sides for lifting or dragging purposes. More specifically, when a ring above the hinge on the tongs is pulled upwards by the winch line, the single tooth on each side is supposed to become securely embedded in the pole as the two sides move toward each other, akin to the closing of the opposing blades of a pair of scissors.

¶7 While the parties dispute some specifics, this much is undisputed about how Murphy proceeded with the task. He either fastened the Dixie tongs to a grappler hook at the end of the winch line or his co-worker had already done that. Murphy placed the teeth of the tongs on opposite sides of the circumference of the pole while it lay on the ground. Using the remote control device to operate the boom, he exerted vertical force on the ring holding the tongs and managed to lift the pole into the air by the tongs. But, at some point the suspended pole fell from the tongs and struck Murphy on the front of his head and a shoulder, and came to rest on top of him. He was seriously injured.

¶8 Murphy filed this action against CMC in its product design role as the manufacturer of the Dixie tongs. One claim is for strict product liability based on an alleged design defect under WIS. STAT. § 895.047 and the other is a negligence claim that is similarly based on a theory of design defect. CMC denies the material allegations and has asserted defenses that include contributory negligence and misuse of the tongs by Murphy.

¶9 CMC moved for summary judgment. Regarding the strict liability claim, CMC primarily argued that Murphy could not prove, as he must under WIS. STAT. § 895.047, either that Murphy had identified a safer, reasonable, alternative design or that the Dixie tongs were unreasonably dangerous. Murphy primarily argued in response that an alleged unreasonable risk of failure created by the Dixie tongs could have been reduced or avoided if CMC had used a different, jaw-style design of pole-lifting tongs. At least initially, he also made a parallel argument based on the purported alternative design of a chain, cable, or strap used as a sling or choker-style lifting device.

¶10 Regarding the negligent design claim, CMC argued that there was no dispute of fact that Murphy "disregarded his extensive training and experience by failing to properly position and attach the [t]ongs [to the pole], and by then positioning himself directly underneath the suspended load" before the accident, and that as a matter of law this rendered Murphy's alleged negligence a greater contributor to the accident than CMC's alleged negligence. Murphy contended that evidence that includes proof of an alleged safer alternative design could allow a reasonable jury to determine that Murphy's alleged negligence was not greater than CMC's alleged negligence in causing Murphy's injuries.

¶11 While CMC's summary judgment motion was pending, CMC filed a motion in limine to exclude opinions of Murphy's liability expert, John DeRosia. CMC argued that DeRosia's opinions were inadmissible under WIS. STAT. § 907.02 because the opinions were "contradictory," speculative, and "not reliable."

¶12 The circuit court initially denied the summary judgment motion on both claims. However, at a hearing scheduled to address motions in limine filed by the parties, the circuit court did not rule on any of the motions in limine but instead explained that it had reconsidered CMC's summary judgment motion and decided to grant it on both claims and dismiss the complaint in its entirety. Murphy appeals.


¶13 We review de novo an order granting a motion for summary judgment, applying the same methodology that circuit courts apply. See Green Spring Farms v. Kersten , 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). If a claim for relief has been stated based on the pleadings when we take as true all facts pleaded by the plaintiff the remaining issue is whether any factual issues exist under the correct legal standards. Id. at 315-17, 401 N.W.2d 816. Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." WIS. STAT. § 802.08(2). A factual dispute is genuine if "a reasonable jury could return a verdict in favor of the nonmoving party" and the dispute is material if it could affect the outcome of the trial under the applicable legal standards. See Schmidt v. Northern States Power Co. , 2007 WI 136, ¶24, 305 Wis. 2d 538, 742 N.W.2d 294. "[I]f more than one reasonable inference can be drawn from the undisputed facts, summary judgment is not appropriate." Id. , ¶47.


¶14 The circuit court granted summary judgment on both claims based in part on its determinations that Murphy failed to identify evidence that CMC's failure to adopt a log-lifting device with a choker-style design could satisfy either the standards established in WIS. STAT. § 895.047(1) or constitute negligent conduct. We affirm the grant of summary judgment in favor of CMC regarding this specific theory of strict liability or negligence because Murphy concedes through silence that he has forfeited and abandoned argument based on this purported alternative design.

¶15 In neither of Murphy's briefs on appeal does he even attempt to develop a supported argument that he can identify evidence that CMC's failure to adopt a choker-style device could satisfy the WIS. STAT. § 895.047 standards or constitute negligent conduct by CMC. Both CMC and this court would have to guess at whatever arguments Murphy might make regarding such critical topics as purported safety advantages of this design compared with the Dixie tongs design.

¶16 In contrast, CMC affirmatively renews an argument that it made to the circuit court, supported by evidence, that choker-style devices would not "reduce or avoid any risk associated with loading poles" when the Dixie tongs are...

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