Vol. 78, No. 3, March
The Sophisticated User Doctrine Arrives
The sophisticated user doctrine may insulate a manufacturer from a
negligence claim when a person or company that purchases a product as
knowledgeable as the manufacturer about the product's hazards. The
doctrine may have arrived, but questions remain about its scope, among
Kevin D. Trost
Last summer the Wisconsin Supreme Court tacitly gave manufacturers in
Wisconsin another defense against lawsuits that allege a manufacturer
negligently failed to provide adequate warnings with its products. In
Haase v. Badger Mining Corp.,1 the
court let stand without comment a published court of appeals decision
that borrowed the sophisticated user doctrine from Iowa law. The supreme
court declined to address the lower court's importation of the
sophisticated user doctrine, citing the appellant's failure to appeal
the negligence claim that was dismissed under that doctrine. This
silence has solidified the lower court's published ruling, and a
subsequent court of appeals decision that invokes this ruling, and it
has opened the door to the introduction of the sophisticated user
doctrine in Wisconsin jurisprudence.
What is the Sophisticated User Doctrine?
The sophisticated user doctrine insulates a manufacturer from
negligence claims that are based on the failure to warn. When the person
or entity purchasing a product is as knowledgeable about the product's
hazards as the manufacturer is, the manufacturer bears no duty to warn
the purchaser of the hazards. In such a situation the purchaser is
considered to be more knowledgeable about the end use of the product and
is therefore in a better position than the manufacturer to provide
meaningful warnings and instructions to anyone actually using the
product.2 For example, a foundry that
purchases sand for use in its casting operations is in a better position
than the sand manufacturer to communicate to foundry employees the
dangers of the product and to instruct in proper protective
Kevin D. Trost, U.W. 1998, is a senior associate at
Axley Brynelson LLP, Madison. His practice is concentrated in the areas
of products liability, personal injury, and environmental litigation. He
has both defended and prosecuted failure to warn claims affected by the
sophisticated user doctrine.
This doctrine is rooted in Restatement (Second) of Torts § 388
(1965), a specific section that Wisconsin has adopted.3 This section of the Restatement states:
"Chattel Known to be Dangerous for Intended Use.
"One who supplies directly or through a third person a chattel for
another to use is subject to liability to those whom the supplier should
expect to use the chattel with the consent of the other or to be
endangered by its probable use, for physical harm caused by the use of
the chattel in the manner for which and by a person for whose use it is
supplied, if the supplier
"(a) knows or has reason to know that the chattel is likely to be
dangerous for the use for which it is supplied, and
"(b) has no reason to believe that those for whose use the chattel is
supplied will realize its dangerous condition, and
"(c) fails to exercise reasonable care to inform them of its
dangerous condition or of the facts which make it likely to be
Subsection (b) has been widely interpreted to embody the
sophisticated user doctrine and to establish that there is "no duty to
warn if the user knows or should know of the potential danger,
especially when the user is a professional who should be aware of the
characteristics of the product."4
The Emergence of the Doctrine in Wisconsin
The Wisconsin Court of Appeals first explicitly raised the doctrine
and Restatement (Second) of Torts § 388(b) as its grounds for
dismissing a plaintiff's claim in Haase v. Badger Mining
Corp.5 Haase, a long-term employee of
the Neenah Foundry, was diagnosed with silicosis. He then sued Badger
Mining, the company that provided the foundry with silica sand.6 The foundry casting process pulverizes the silica
sand, creating clouds of visible silica dust and silica particles so
minute that they can become lodged in the lungs of exposed
workers.7 The particles cannot be expunged
from the lungs and can cause the progressive respiratory disease
silicosis. Haase argued that the seller of the sand knew that foundries
were one of the prime consumers of its sand, knew that silica sand broke
down into minute respirable particles during the foundry casting
process, and failed to warn workers how to adequately protect themselves
from respiratory harm.8 Both the trial court
and the court of appeals agreed with Badger Mining that the Neenah
Foundry was as sophisticated and knowledgeable as Badger Mining about
the dangers of silicosis and how to protect workers from respirable
silica.9 As a result, the sophisticated user
doctrine relieved Badger Mining of its duty to provide a specific
warning to the foundry workers.
After Haase, the Wisconsin Court of Appeals quickly extended
the reach of the sophisticated user doctrine beyond the
employer/employee context. In Mohr v. St. Paul Fire & Marine
Insurance Co., a high school swim team member was injured while
diving from a diving board into a shallow portion of the high school's
swimming pool.10 The swimmer sued the
diving board manufacturer, claiming the manufacturer was negligent for
failing to warn him of the dangers of locating the platform at a shallow
depth.11 The manufacturer contended it bore
no duty to warn because the high school was a sophisticated user that
belonged to the Wisconsin Interscholastic Athletic Association (WIAA),
an organization that monitors national standards and provides its member
high schools with information on the safe practice of sports
activities.12 The Wisconsin Court of
Appeals found that the sophisticated user doctrine was applicable, but
determined there was insufficient factual information about the extent
of the manufacturer's knowledge about the high school to uphold the
manufacturer's motion for summary judgment.13
Rather than exclusively examining the purchaser's level of knowledge,
as the Haase court did, the Mohr court
focused on the manufacturer's level of knowledge about the purchaser.
Mohr explicitly stated that "the issue under Restatement
(Second) of Torts § 388(b), correctly framed, is whether KDI
had reason to believe that the high school had knowledge the
platforms were likely to be dangerous if used in less than five feet of
water."14 The court of appeals explained
that while the purchaser's "actual knowledge is not dispositive under
§ 388(b)," it is "relevant if KDI knew of it or if the knowledge of
this high school may be reasonably inferred to be the knowledge of high
schools in general who purchase the product...."15
The Future Application of the Doctrine in Wisconsin
In Mohr, the Wisconsin Court of Appeals clearly centered the
spotlight of the sophisticated user inquiry on the manufacturer's level
of knowledge. What remains unclear is what level of knowledge a
manufacturer must possess in order to be granted refuge under the
doctrine. It is not known whether a manufacturer is protected if it knew
that the purchaser's industry had knowledge about a hazard, or if a
manufacturer must be aware that the specific purchaser knew of the
hazard. How future courts interpret the level of knowledge required by
manufacturers for protection under the doctrine will likely determine
the potency of this defense in Wisconsin.
Future judicial consideration of at least two other issues also will
affect the ultimate scope of this doctrine in Wisconsin. To date the
Wisconsin Court of Appeals has only applied this doctrine to warnings
claims rooted in negligence, failing to move further because the courts
in Haase and Mohr only addressed claims rooted in
negligence.16 Other states that have
adopted the doctrine have blurred any distinction between a warnings
claim based in negligence and a warnings claim based in strict
liability.17 There is reason to believe
that Wisconsin courts will apply the sophisticated user doctrine to both
types of warnings claims. The court of appeals in Mohr
explicitly refused to further expand the scope of this doctrine without
guidance from the Wisconsin Supreme Court; however, it questioned
outright whether there was any "practical significance" between a strict
liability warnings claim and a warnings claim rooted in
negligence.18 This stance is consistent
with the court of appeals' previous statement that the proof
requirements for warnings claims in negligence and in strict liability
are essentially the same.19
Additionally, future courts may be asked to consider the policy
argument that the sophisticated user doctrine burdens employees with
bearing too great a share of the costs of their injuries. Plaintiffs'
attorneys are concerned that adopting this doctrine will unjustly
foreclose an avenue of recovery for innocently injured plaintiffs. The
Wisconsin Court of Appeals explained that the adoption of the doctrine
"places the duty to warn on the party arguably in the best position to
ensure workplace safety, the purchaser-employer."20 However, the doctrine effectively allows a
manufacturer to transfer responsibility and liability to employers for
warning workers who ultimately use a manufacturer's product. While in
some states this shift of liability may not affect a worker's ability to
pursue an action against the employer, Wisconsin has strict civil
immunity for employers under its worker's compensation laws. If the
sophisticated user doctrine allows the transfer of liability to the
employer, and the employer is protected by worker's compensation
immunity, the injured employee will be left with only the limited
recovery available through worker's compensation.
Over the last two decades a number of states have incorporated the
sophisticated user doctrine into law as a protection for manufacturers,
with few states rejecting the doctrine outright.21 Wisconsin is one of several states to recently
consider adopting this doctrine. In the most recent decision in which a
state court adopted the doctrine, the Texas Supreme Court set out a
series of factors for its courts to consider when determining whether
the manufacturer bears a duty to warn.22
The Minnesota Court of Appeals, relying on the same case that the
Haase court relied on, invoked the doctrine to dismiss a claim
against the same silica sand supplier that was sued in
Haase.23 However, the Minnesota
Supreme Court recently overruled the decision, finding an insufficiency
of evidence on key issues.24 In doing so,
the court distinguished between what it termed a sophisticated user
defense and a sophisticated intermediary defense.25 The court acknowledged that a manufacturer has
no duty to warn under a sophisticated user defense when the actual user
is as knowledgeable about the product and its dangers as is the
manufacturer.26 In contrast, the court
refused to decide whether it would relieve a manufacturer of its duty
when the product's purchaser (the sophisticated intermediary) is as
knowledgeable as the manufacturer but the actual user may not be
The adoption of the sophisticated user doctrine in Wisconsin is in
itself a boon for manufacturers who are plagued with claims that they
inadequately warned of the dangers posed by their products. The doctrine
likely will be expanded to apply to strict liability claims. However,
future interpretation of how this doctrine will be applied in Wisconsin
may serve to limit its use. Under Mohr, whether the doctrine
applies in a particular case turns on the manufacturer's level of
knowledge about the purchaser and the purchaser's industry. Questions
remain about how much a manufacturer must know before it is relieved of
a responsibility to warn. Must the manufacturer know that the purchaser
is aware of the general dangers posed by the product, or must the
manufacturer know that the purchaser is aware of dangers associated with
the purchaser's specific use of the product? Alternatively, perhaps it
is sufficient that a manufacturer know that a purchaser is an active
member of a knowledgeable professional or industry group. Courts'
guidance on these issues will provide counsel with a better
understanding of the potency of the sophisticated user defense and its
effect on the landscape of failure to warn claims in Wisconsin.
12004 WI 97, 274 Wis. 2d 143, 682
N.W.2d 389, affirming 2003 WI App 192, 266 Wis. 2d 970, 669
N.W.2d 737 (adopting and applying rationale of Bergfeld v. Unimin
Corp., 319 F.3d 850 (8th Cir. 2003)).
2Haase, 2003 WI App 192,
¶ 21, 266 Wis. 2d 970.
3Strasser v. Transtech Mobile
Fleet Serv. Inc., 2000 WI 87, ¶ 58, 236 Wis. 2d 435, 613
4Bergfeld v. Unimin Corp.,
319 F.3d 350, 353 (8th Cir. 2003).
5Haase, 2003 WI App 192,
¶ 21, 266 Wis. 2d 970. Wisconsin courts have previously recognized
that "there is no duty to warn members of a trade or profession about
dangers generally known to the trade or profession." Shawver v.
Roberts Corp., 90 Wis. 2d 672, 686, 280 N.W.2d 226 (1979). However,
the Shawver court did not refer to this principle as the
sophisticated user doctrine.
6Haase, 2003 WI App 192, ¶ 1,
266 Wis. 2d 970.
7Id. ¶ 3.
8Id. ¶ 1.
10Mohr v. St. Paul Fire &
Marine Ins. Co., 2004 WI App 5, 269 Wis. 2d 302, 674 N.W.2d
11Id. ¶ 6.
12Id. ¶ 14.
13Id. ¶ 21.
14Id. ¶ 20.
16Id. ¶ 34.
17See, e.g., Phillips v. A.P.
Green Refractories Co., 630 A.2d 874 (Pa. Super. Ct. 1993),
aff'd sub nom. Phillips v. A-Best Prods. Co., 665 A.2d 1167
(Pa. 1994); Donahue v. Phillips Petroleum Co., 866 F.2d 1008
(8th Cir. 1989) (applying Missouri law).
18Mohr, 2004 WI App 5,
¶ 32 n.10, 269 Wis. 2d 302; see also Nigh v. Dow Chemical
Co., 634 F. Supp. 1513, 1517 (W.D. Wis. 1986) ("The Court will
leave the task of distinguishing between negligence and strict liability
in the duty to warn to those who count angels on the heads of
19Mohr, 2004 WI App 5,
¶ 32 n.10, 269 Wis. 2d 302. (citing Tanner v. Shoupe, 228
Wis. 2d 357, 365 n.3, 596 N.W.2d 805 (Ct. App. 1999); Krueger v.
Tappan Co., 104 Wis. 2d 199, 207 n.3, 311 N.W.2d 219 (Ct. App.
20Haase, 2003 WI App
192, ¶ 21, 266 Wis. 2d 970; contrast with Gray v. Badger Mining
Corp., 664 N.W.2d 881, 885 (Minn. Ct. App. 2003) ("in the
industrial setting ... the employer is not motivated to warn
employees because the employer's liability is limited by the worker's
compensation laws."), rev'd, 676 N.W.2d 268 (Minn. 2004),
and Humble Sand & Gravel Inc. v. Gomez, 146 S.W.3d 170,
184-85 (Tex. 2004) ("disregard [by employers] of the risks to their
employees of inhaling silica dust was not for want of additional
information that flint suppliers should have furnished, but for want of
21See Phillips v. A.P. Green
Refractories Co., 630 A.2d 874 (Pa. Super. Ct. 1993),
aff'd, 665 A.2d 1167 (Pa. 1994); Jodway v. Kennametal
Inc., 525 N.W.2d 883 (Mich. Ct. App. 1994); Groll v. Shell Oil
Co., 196 Cal. Rptr. 2d 52, 54 (Cal. Ct. App. 1983); Smith v.
Walter C. Best Inc., 927 F.2d 736, 741 (3d Cir. 1990); Goodbar
v. Whitehead Bros., 591 F. Supp. 552, 561 (W.D. Va. 1984),
aff'd sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir. 1985);
Damond v. Avondale Indus. Inc., 718 So. 2d 551, (La. Ct. App.
1998), writ denied, 735 So. 2d 637 (La. Ct. App. 1999). But
see Sharp v. Wyatt Inc., 627 A.2d 1347 (Conn. App. Ct. 1993)
(sophisticated user doctrine is not affirmative defense but rather part
of user awareness issue to be considered by trier of fact).
22Humble Sand & Gravel
Inc., 146 S.W.3d at 192-94. Those factors, applied to a situation
involving abrasive blasting, are: 1) the likelihood of serious injury
from a supplier's failure to warn; 2) the burden on a supplier of giving
a warning; 3) the feasibility and effectiveness of a supplier's warning;
4) the reliability of operators to warn their own employees; 5) the
existence and efficacy of other protections; and 6) the social utility
of requiring, or not requiring, suppliers to warn. Id.
23Gray, 664 N.W.2d at
24Gray v. Badger Mining
Corp., 676 N.W.2d 268, 277 (Minn. 2004).
25Id. at 276-77.
27Id. at 277.
28See Moore ex. rel. Moore v.
Memorial Hosp. of Gulfport, 825 So. 2d 658, 664-65 (Miss. 2002)
(listing states that have adopted learned intermediary doctrine).
See also Kevin L. Colbert & John Gray, Recent
Developments in Toxic Tort and Environmental Litigation, 38 Tort
Trial & Ins. Prac. L.J. 691 (Winter 2003).
29Vitanza v. The Upjohn
Co., 778 A.2d 829, 844-47 (Conn. 2001).
30Kurer v. Parke, Davis &
Co., 2004 WI App 74, 274 Wis. 2d 390, 679 N.W.2d 867.
31Id. ¶ 31 n.7.