Murphy v. Columbus McKinnon Corp.

Decision Date28 December 2022
Docket Number2020AP1124
Parties Matthew W. MURPHY, Plaintiff-Appellant, Wisconsin Power and Light Company, Involuntary-Plaintiff, v. COLUMBUS MCKINNON CORPORATION, Defendant-Respondent-Petitioner.
CourtWisconsin Supreme Court

For the defendant-respondent-petitioner, there were briefs filed by Larry J. Britton, Shannon M. Trevithick, Debora F. Pagel, Esq., Kevin J. English, Erin E. Connare, and Britton & Associates, S.C., Mequon, and Phillips Lytle LLP, Buffalo. There was an oral argument by Kevin J. English, introduced by Shannon M. Trevithick.

For the plaintiff-appellant, there was a brief filed by Douglas J. Phebus, Victor M. Arellano, and Arellano & Phebus, S.C. There was an oral argument by Douglas J. Phebus.

An amicus curiae brief was filed by Jesse B. Blocher and Habush, Habush, & Rottier, S.C., Waukesha, for the Wisconsin Association for Justice. There was an oral argument by Jesse B. Blocher.

ROGGENSACK, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined except for ¶¶38 and 41. KAROFSKY, J., filed a concurring opinion, in which ANN WALSH BRADLEY and DALLET, JJ., joined. HAGEDORN, J., filed an opinion concurring in part and dissenting in part, in which ZIEGLER, C.J., and REBECCA GRASSL BRADLEY, J., joined.


¶1 We review a published decision of the court of appeals1 that reversed in part and affirmed in part the circuit court's2 grant of summary judgment for defendant Columbus McKinnon Corporation ("CMC"). We begin with the common law that applied to a design defect and then interpret, for the first time, Wis. Stat. § 895.047 (2019-20)3 following the legislature's creation of this state's product liability statute in 2011. We then apply the statute to the facts of this case to affirm the court of appeals’ mandate and remand for further proceedings.

¶2 In interpreting Wisconsin's product liability statute when the claim is for a defective design, we conclude as follows: (1) Wis. Stat. § 895.047(1)(a) requires proof of a more safe, reasonable alternative design the omission of which renders the product not reasonably safe; (2) proof that the consumer-contemplation standard4 as set out in § 895.047(1)(b) (for strict liability claims for a defective design) has been met; and (3) proof that the remaining three factors of a § 895.047(1) claim have been met. The statute's plain language is clear in showing that the legislature codified the common law consumer-contemplation standard in § 895.047(1)(b). We disagree with the court of appeals’ conclusion that the legislature discarded the consumer-contemplation test by incorporating the risk-utility balancing test. We also decline to adopt comment f of Restatement (Third) of Torts § 2, upon which the court of appeals relied. With a clear understanding of the requirements that a plaintiff must establish, and considering the multiple genuine disputes of material fact, which we explain below, we affirm the court of appeals in reversing summary judgment and remand to the circuit court for further proceedings.


¶3 As a society, we owe a great deal to those who ensure electricity reaches our homes, work places, and public institutions. But that electricity reaches us, thanks in large part, due to the utility line technicians who perform a dangerous job. The United States Bureau of Labor Statistics recorded 2,310 nonfatal occupational injuries and illnesses for electrical power-line installers and repairers in 2013.5 Plaintiff Matthew Murphy, a line technician for Wisconsin Power & Light Company,6 was one of those injured workers, sustaining substantial injury after a thirty-foot utility pole fell, struck, and came to rest atop him while Murphy attempted to load used utility poles from the ground onto a trailer bed on May 14, 2013.7

¶4 Utility workers lift poles using a truck-mounted boom featuring a winch, to which workers fix tongs that attach to the pole to enable secure lifting. Murphy's employer, Wisconsin Power and Light Company (WPL), provided regular training to its linemen regarding the appropriate procedure for attaching tongs. At least two styles of tongs were regularly on the trucks at the time of Murphy's injury, including: "Dixie" style tongs and "Hogg-Davis" jaw-style tongs. Dixie tongs resemble old-fashioned ice tongs, and are attached by placing a pointed prong on either side of the pole. Once the tongs are lifted upward, Dixie tongs close in a manner akin to scissors, and the force of upward lifting typically draws the points further into the pole against which the tongs are placed. Different from the two-prong Dixie tongs, Hogg-Davis jaw-style tongs feature multiple (often three) teeth along the inside of each side of the tongs. Jaw-style tongs clamp around the pole, providing six surfaces to contact the pole during lifting.

¶5 When an individual lifts poles alone, line technicians are trained to attach the lifting tongs to the winch and then to the pole. Placement on the pole is paramount, and line technicians must be aware of two critical points for proper tong placement: (1) the balance point relative to the length of the pole; and (2) the attachment point as relative to the circumference of the pole. Regarding the balance point, line technicians are trained to place the lifting implement slightly off of the balance point so that the higher "light" end is toward the lineman. This placement prevents unpredictable teetering in a pole lifted at the exact balance point, and it ensures the lineman can push down on the higher end of a slightly-askew pole, rather than lift up on the lower end. Because poles are typically tapered, the balance point is not necessarily in the exact middle of the pole. As for the attachment point on the circumference, the tongs should grasp the lower third of the pole's circumference, as viewed by cross-section, to prevent slipping or falling that is more likely to occur from attachment nearer to the middle or top-third points.

¶6 After selecting and attaching the desired tongs, line technicians are trained to follow certain protocol while loading poles from the ground onto a trailer bed. They are trained to perform a test lift to ensure the lifting implement does not slip or otherwise fail, and to test the attachment point.8 Line technicians then lower and make adjustments to the tongs’ positioning, as needed. Having verified the tongs are attached securely and at the appropriate placement, line technicians then raise the hoist high enough to clear the sides of the truck bed.

¶7 Accordingly, line technicians must lift the pole at least somewhat higher than six feet to ensure both ends of the pole clear the side rails of the truck. They are trained not to lift the hoist "above the lineman's head." They are similarly trained not to stand under suspended poles, or to raise a load overhead. However, line technicians must remain in close proximity to the suspended poles, as they are trained to "right" an askew pole by placing downward pressure on the upper end to ensure the pole remains relatively horizontal to the ground.

¶8 While ideally line technicians work in pairs to perform this task, utility companies acknowledge this is not always feasible, and they also have trained them for independent work. Line technicians have the option to wear a waist belt that can remotely control the hoist. This device allows line technicians to operate both the boom and winch, as well as place as-needed pressure to right a pole.

¶9 Murphy had worked as a line technician for approximately six years and had loaded and unloaded utility poles numerous times. On the date of his injury, Murphy and a colleague worked as a pair to load used utility poles from the side of the road to a trailer. However, due to the poles’ location, the pair decided to bring the utility poles to the location of the boom and hoist truck. As Murphy's coworker dragged poles toward Murphy with one truck, Murphy independently loaded poles onto a trailer using a waist belt and a separate truck with the boom. Murphy attached Dixie tongs to an old, weathered, hard pole. Once hoisted in the air, the pole came loose from the tongs and struck Murphy, injuring him severely.

¶10 Murphy has no recollection of the accident due to his injuries; his coworker did not witness the accident as he was moving a truck. The only two eyewitnesses were drivers waiting for Murphy's colleague to move the truck out of the way to reopen traffic after dragging a pole to Murphy.

¶11 The Dixie tongs Murphy used on the date of his accident were manufactured by defendant CMC. CMC is aware line technicians use the Dixie tongs to lift poles, and it marketed the tongs as "pole tongs" in its own advertisements. Murphy's employer purchased the Dixie tongs intending to use them to lift poles. Murphy brought a products liability lawsuit against CMC alleging both strict product liability for a design defect under Wis. Stat. § 895.047(1), relying on the Hogg-Davis jaw-style design as providing a more safe alternative design, and as support for a common law claim of negligent design.9

¶12 Following over two years of discovery, CMC moved for summary judgment. Finding genuine disputes of material fact, the circuit court denied summary judgment and recommended the parties reconvene with their experts to resolve unanswered questions. Four months later, the court denied summary judgment again, reasoning the persistent factual disputes and difficulty in allocating fault did not allow for summary judgment on Murphy's claims or on CMC's defenses. The parties set a trial date for April 2020. Faced with delaying the trial significantly due to the COVID-19 pandemic, the circuit court sua sponte reconsidered CMC's motion for summary judgment at a hearing on motions in limine and granted summary judgment for CMC. Murphy appealed.

¶13 The court of...

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    • October 31, 2023 negligence claim based on the same theory. See Wis.Stat. § 895.047(6); Murphy v. Columbus McKinnon Corp., 2022 WI 109, ¶39, 405 Wis.2d 157, 982 N.W.2d 898. explained above, Rivers has presented evidence sufficient to sustain her claim that the design of the filter was defective. Consequ......
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    • U.S. District Court — Northern District of California
    • February 21, 2023
    ... ... unsupported claims. Celotex Corp. v. Catrett , 477 ... U.S. 317, 323-24 (1986). Summary judgment, or ... Murphy v. Columbus McKinnon Corp. , 405 Wis.2d 157, ... 186, 982 N.W.2d ... ...

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