¶ 56. {concurring). I write a concurrence separate from the lead opinion to address an issue neither raised nor advanced by the parties in this case. Instead, it is a policy determination advanced by Justice Prosser's concurrence below. See Justice Prosser's concurrence (joined by Justices Ziegler and Gableman).
¶ 57. The concurrence below mistakes judicial restraint for intransigence. Challenging the lead opinion to "muster[] the intellectual firepower to defend" our reliance on the consumer contemplation test, the concurrence wants to square off and impose an agenda it seeks to advance. See id., ¶ 109.
¶ 58. Neither of the parties in this case has called upon the court to deviate from over 40 years of case law and adopt the Restatement (Third) of Torts: Products Liability § 2(b). In their brief, the defendant manufacturers disclaimed any reliance by the court of appeals on the Restatement (Third), arguing that "the Restatement (Third) of Torts was not briefed, discussed, or even mentioned by any party prior to the Court of Appeals' sua sponte discussion of it."1 Both parties agree *123that the consumer contemplation test is the applicable test, and that it controls the outcome in this case.
¶ 59. Judicial restraint is especially appropriate here because adopting the Restatement (Third)'s approach to product liability would be a sea change in Wisconsin law. Over the last 42 years since we adopted Restatement (Second) of Torts § 402A, manufacturers of defective products can be held strictly liable even if they were not negligent. See Dippel v. Sciano, 37 Wis. 2d 443, 460, 155 N.W.2d 55 (1967). "Defective," for purposes of the consumer contemplation test, means that the product is "in a condition not contemplated by the ultimate consumer and unreasonably dangerous to that consumer." Green v. Smith & Nephew AHP, Inc., 2001 WI 109, ¶ 29, 245 Wis. 2d 772, 629 N.W.2d 727.
¶ 60. Strict products liability focuses on the dangerous condition of the product rather than on the manufacturer's conduct. Under the Restatement *124(Third)'s approach, however, strict liability for design defects is essentially eliminated. Instead, liability is predicated on the manufacturer's negligence. See Restatement (Third) § 2 cmt. a (Liability "achievefs] the same general objectives as does liability predicated on negligence.") (emphasis added). The Restatement (Third) imposes liability "when the foreseeable risk of harm could have been reduced or avoided by the adoption of a reasonable alternative design[.]" Id. § 2(b).
¶ 61. The Restatement (Third)'s approach remains controversial. See, e.g., George W Conk, Punctuated Equilibrium: Why Section 402A Flourished and the Third Restatement Languished, 26 Rev. Litig. 799 (2007); Frank J. Vandall & Joshua F. Vandall, A Call for an Accurate Restatement (Third) of Torts: Design Defect, 33 U. Mem. L. Rev. 909, 922 (2003); Ellen Wertheimer, The Biter Bit: Unknowable Dangers, the Third Restatement, and the Reinstatement of Liability Without Fault, 70 Brook. L. Rev. 889 (2005); James A. Henderson, Jr. & Aaron D. Twerski, A Fictional Tale of Unintended Consequences: A Response to Professor Wertheimer, 70 Brook. L. Rev. 939 (2005); William E. Westerbeke, The Sources of Controversy in the New Restatement of Products Liability: Strict Liability Versus Products Liability, 8 Kan. J.L. & Pub. Pol'y 1 (1998-1999).
¶ 62. Unlike the orientation of § 402A, which arose out of a concern for the protection of consumers, the orientation of Restatement (Third) reportedly emphasizes the protection of manufacturers. One authority observes the elimination of the consumer contemplation test "from the products liability equation is highly significant, and symbolic of the orientation of the Third Restatement towards protecting manufacturers." Wertheimer, supra, at 927.
*125¶ 63. Some jurisdictions that have adopted the Restatement (Third) are now back-tracking. The current judicial trend appears to be a return to the pro-consumer policies of origin and reinstating strict products liability under § 402A. See id. at 893.
¶ 64. In advocating for this policy change, the concurrence in this case and the concurrence in Horst v. Deere & Co. (released today)2 eschew the role of an appellate court. Instead, they appear to act like legislators, advancing a policy initiative which they favor. Typically, it is the role of the legislature to identify and enact policy initiatives. Appellate courts, on the other hand, play a more restrained role.
¶ 65. Courts decide cases and controversies. A court depends upon the parties to identify and raise issues and to advocate for a position. After considering the parties' briefs and arguments, the court renders a decision.
¶ 66. By contrast, the concurrence here would toss stare decisis to the wind. It would overrule or otherwise modify scores of cases which refer to or apply § 402A as the test for products liability. These cases would no longer be guides and precedent for litigants and the courts. Forty-two years of judicial analysis should not be thrown down the tubes without the benefit of briefing or argument by the parties.3
*126¶ 67. As is, Justice Prosser's concurrence in this case and Justice Gableman's concurrence in Horst leave Wisconsin law unsettled. Does Green remain Wisconsin *127law? How are circuit courts and practitioners to grapple with the significance of the fact that in both this case *128and in Horst, an equal number of justices have voted to change Wisconsin law as have voted to uphold it?
¶ 68. I am uncertain whether the Restatement (Third) should be adopted. What I am certain of, however, is that rather than pushing a predetermined agenda, I would wait until the issue is raised by a party, and briefed and argued before this court.
¶ 69. For the reasons discussed above, I respectfully concur.
*129¶ 70. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this concurrence.The court of appeals discussed the Restatement (Third) in a single paragraph of its opinion. See Godoy v. E.I. du Pont de Nemours & Co., 2007 WI App 239, ¶ 8, 306 Wis. 2d 226, 743 N.W.2d 159. It prefaced its comments as follows: 'Wisconsin has neither adopted nor rejected the Restatement (Third) of Torts: Products Liability (1998),... and we need not adopt it here[.]" Id. (citation omitted).
Further, contrary to the assertion in Justice Prosser's concurrence, the Restatement (Third) was not advanced as an alternative ground for recovery in Horst v. Deere & Co., 2009 WI 75, _ Wis. 2d _, 769 N.W.2d 536. See Justice Prosser's concurrence, ¶ 81 n.2. For a description of the negligible discussion of the Restatement (Third) in Horst, see _ Wis. 2d _, ¶ 84 (J. Crooks, concurring).
*123Any doubt as to whether the plaintiffs in Horst advocated for the adoption of the Restatement (Third) is erased by a review of the oral arguments. No attorney uttered the words "Restatement (Third)" at oral argument. In fact, the plaintiffs' attorney specifically disclaimed any reliance on a risk-utility test, which is one of the principles underlying the Restatement (Third). He stated: "I didn't argue for the adoption of a risk-utility test[.]" See Wisconsin Court System, Supreme Court Oral Arguments, http://wicourts.gov/opinions/soralarguments.htm (search "Party name" for "Horst"; then follow "Playback" link), at 26:35.
Finally, Justice Prosser argues that the Restatement (Third) was briefed fully in a previous appeal to this court, Green v. Smith & Nephew AHP, Inc., 2001 WI 109, 245 Wis. 2d 772, 629 N.W.2d 727. Justice Prosser is correct. The issue in Green, which was fully briefed and argued, was whether Wisconsin should adopt the Restatement (Third) § 2(b). The majority of the court said no. See id., ¶¶ 71-74.
2009 WI 75, _ Wis. 2d _, 769 N.W.2d 536.
See, for example:
• Tatera v. FMC Corp., 2009 WI App 80, _ Wis. 2d _, 768 N.W.2d 198 (publication decision pending);
• Haase v. Badger Mining Corp., 2004 WI 97, 274 Wis. 2d 143, 682 N.W.2d 389;
• Green v. Smith & Nephew AHP, Inc., 2001 WI 109, 245 Wis. 2d 772, 629 N.W.2d 727;
*126• Insolia v. Philip Morris, Inc., 216 F.3d 596 (7th Cir. 2000) (applying Wisconsin law);
• Morden v. Continental AG, 2000 WI 51, 235 Wis. 2d 325, 611 N.W.2d 659;
• Sharp ex rel. Gordon v. Case Corp., 227 Wis. 2d 1, 595 N.W.2d 380 (1999);
• Bittner v. American Honda Motor Co., Inc., 194 Wis. 2d 122, 533 N.W.2d 476 (1995);
• Westphal v. E.I. du Pont de Nemours & Co., Inc., 192 Wis. 2d 347, 531 N.W.2d 386 (Ct. App. 1995);
• Sedbrook v. Zimmerman Design Group, Ltd., 190 Wis. 2d 14, 526 N.W.2d 758 (Ct. App. 1994);
• Estate of Cook v. Gran-Aire, Inc., 182 Wis. 2d 330, 513 N.W.2d 652 (Ct. App. 1994);
. Rogers v. AAA Wire Prods., Inc., 182 Wis. 2d 263, 513 N.W.2d 643 (Ct. App. 1994);
• Beacon Bowl, Inc. v. Wisconsin Elec. Power Co., 176 Wis. 2d 740, 501 N.W.2d 788 (1993);
• Glassey v. Continental Ins. Co., 176 Wis. 2d 587, 500 N.W.2d 295 (1993);
• Northridge Co. v. W.R. Grace and Co., 162 Wis. 2d 918, 471 N.W.2d 179 (1991);
• Kolpin v. Pioneer Power & Light Co., Inc., 162 Wis. 2d 1, 469 N.W.2d 595 (1991);
• Nelson v. Nelson Hardware, Inc., 160 Wis. 2d 689, 467 N.W.2d 518 (1991);
• Rolph v. EBI Cos., 159 Wis. 2d 518, 464 N.W.2d 667 (1991);
• Kemp v. Miller, 154 Wis. 2d 538, 453 N.W.2d 872 (1990);
• Estate of Schilling v. Blount, Inc., 152 Wis. 2d 608, 449 N.W.2d 56 (Ct. App. 1989);
• Tony Spychalla Farms, Inc. v. Hopkins Agr. Chemical Co., 151 Wis. 2d 431, 444 N.W.2d 743 (Ct. App. 1989);
*127• St. Clare Hosp. of Monroe v. Schmidt, Garden, Erickson, Inc., 148 Wis. 2d 750, 437 N.W.2d 228 (Ct. App. 1989);
• O'Brien v. Medtronic, Inc., 149 Wis. 2d 615, 439 N.W.2d 151 (Ct. App. 1989);
• Mulhern v. Outboard Marine Corp., 146 Wis. 2d 604, 432 N.W.2d 130 (Ct. App. 1988);
• Griffin v. Miller, No. 1986AP1562, unpublished slip op. (Wis. Ct. App. Oct. 1, 1987);
• Van's Realty Const. of Appleton, Inc. v. Blount Heating and Air Conditioning, Inc., No. 1985AP1812, unpublished slip op. (Wis. Ct. App. Oct. 7, 1986);
• Clarke v. Flad Assocs., No. 1984AP780, unpublished slip op. (Wis. Ct. App. Jan. 27, 1988);
• Gonzalez v. City of Franklin, 128 Wis. 2d 485, 383 N.W.2d 907 (Ct. App. 1986);
• Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 121 Wis. 2d 338, 360 N.W.2d 2 (1984);
• Collins v. Eli Lilly Co., 116 Wis. 2d 166, 342 N.W.2d 37 (1984);
• Burrows v. Follett and Leach, Inc., 115 Wis. 2d 272, 340 N.W.2d 485 (1983);
• Giese v. Montgomery Ward, Inc., 111 Wis. 2d 392, 331 N.W.2d 585 (1983);
• Krueger v. Tappan Co., 104 Wis. 2d 199, 311 N.W.2d 219 (Ct. App. 1981);
• Wangen v. Ford Motor Corp., 97 Wis. 2d 260, 294 N.W.2d 437 (1980);
• Shawver v. Roberts Corp., 90 Wis. 2d 672, 280 N.W.2d 226 (1979);
• Priske v. General Motors Corp., 89 Wis. 2d 642, 279 N.W.2d 227 (1979);
• Black v. General Elec. Co., 89 Wis. 2d 195, 278 N.W.2d 224 (Ct. App. 1979);
• Ransome v. Wisconsin Elec. Power Co., 87 Wis. 2d 605, 275 N.W.2d 641 (1979);
*128• Kozlowski v. John E. Smith's Sons Co., 87 Wis. 2d 882, 275 N.W.2d 915 (1979);
• Keller v. Welles Dep't. Store of Racine, 88 Wis. 2d 24, 276 N.W.2d 319 (Ct. App. 1979);
• Austin v. Ford Motor Co., 86 Wis. 2d 628, 273 N.W.2d 233 (1979);
• Fonder v. AAA Mobile Homes, Inc., 80 Wis. 2d 3, 257 N.W.2d 841 (1977);
• Heldt v. Nicholson Mfg. Co., 72 Wis. 2d 110, 240 N.W.2d 154 (1976);
• Howes v. Deere Co., 71 Wis. 2d 268, 238 N.W.2d 76 1976);
• Barter v. General Motors Corp., 70 Wis. 2d 796, 235 N.W.2d 523 (1975);
• Greiten v. LaDow, 70 Wis. 2d 589, 235 N.W.2d 677 (1975);
• Vincer v. Esther Williams All-Aluminum Swimming Pool Co., 69 Wis. 2d 326, 230 N.W.2d 794 (1975);
• Schuh v. Fox River Tractor Co., 63 Wis. 2d 728, 218 N.W.2d 279 (1974);
• City of Franklin v. Badger Ford Truck Sales Inc., 58 Wis. 2d 641, 207 N.W.2d 866 (1973);
. Schnabl v. Ford Motor Co., 54 Wis. 2d 345, 195 N.W.2d 602 (1972);
• Netzel v. State Sand & Gravel Co., 51 Wis. 2d 1, 186 N.W.2d 258 (1971);
• Dippel v. Sciano, 37 Wis. 2d 443, 155 N.W.2d 55 (1967) (adopting the Restatement (Second) § 402A and strict products liability).