¶ 122. (dissenting). I respectfully dissent. The majority opinion is seriously out of step with product liability law as it has evolved since this court adopted the Restatement (Second) of Torts § 402A in Dippel v. Sciano, 37 Wis. 2d 443, 155 N.W.2d 55 (1967). The majority blurs the distinctions between design, manufacturing, and failure-to-warn *849product defects. The majority also keeps Wisconsin in the much-criticized and rapidly dwindling minority of jurisdictions that rely exclusively on a consumer contemplation test to determine liability in design defect cases. And finally, the majority opinion’s language about the role of foreseeability in product liability law is misleading and overbroad.
¶ 123. Strict liability in tort is imposed upon sellers of defective products that are unreasonably dangerous. Dippel, 37 Wis. 2d at 459-60 (adopting the Restatement (Second) of Torts § 402A (1965)); see also Restatement (Third) of Torts: Products Liability §§ 1, 2 (1998). Products can be defective and unreasonably dangerous in different ways, and so product liability cases fall into three distinct categories depending upon the nature of the alleged defect: 1) manufacturing defects (arising from a mistake in the manufacturing process); 2) design defects (arising from an unsafe product design); and 3) defects arising from an inadequate or nonexistent warning of a known danger. See Wis JI — Civil 3200, 3260, 3262; see also Restatement (Third) of Torts: Products Liability § 1 cmt. a (1998) ("[a]bundant authority recognizes the division of product defects into manufacturing defects, design defects, and defects based on inadequate instructions or warnings").
¶ 124. In 1997, the American Law Institute issued the Restatement (Third) of Torts: Products Liability. In the introduction to the Third Restatement, the ALI describes the evolution of product liability law in this way:
To understand its place in the law, products liability must be examined in historical context. In 1964 The American Law Institute adopted § 402A as part *850of the Restatement Second of Torts. Section 402A was entitled "Special Liability of Seller of Product for Physical Harm to User or Consumer." It marked the first recognition by the Institute of privity-free strict liability for sellers of defective products. The major thrust of § 402A was to eliminate privity so that a user or consumer, without having to establish negligence, could bring an action against a manufacturer, as well as against any other member of a distributive chain that had sold a product containing a manufacturing defect. Section 402A had little to say about liability for design defects or for products sold with inadequate warnings. In the early 1960s these areas of litigation were in their infancy.
In restating the law of products liability more than a quarter of a century later, the Institute had before it thousands of judicial decisions that had fine-tuned the law of products liability in a manner hardly imaginable when Restatement Second was written. Issues that had not occurred to those members involved in drafting Restatement Second had become points of serious contention and debate in the courts. What should be the governing standard for design and warning liability ? Is there a cause of action for defective prescription drug design? What rule should govern when a plaintiff establishes that enhanced harm was suffered as a result of a defect in a defendant's product, beyond that which would have resulted from other causes, but the plaintiff cannot quantify the amount of the enhancement?
On almost every page of Restatement Third, Torts: Products Liability, the Institute has had to respond to questions that were not part of the landscape 35 years ago. This Restatement is, therefore, an almost total overhaul of Restatement Second as it concerns the liability of commercial sellers of products.
*851Restatement (Third) of Torts: Products Liability, at 3 (1998) (emphasis added).
¶ 125. The Third Restatement sets forth the following general rule of strict product liability:
§ 1. Liability of Commercial Seller or Distributor for Harm Caused by Defective Products
One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.
Restatement (Third) of Torts: Products Liability § 1 (1998).
¶ 126. The Third Restatement also sets forth the separate standards of liability that have developed over time for manufacturing defects, design defects, and defects based upon inadequate instructions or warnings:
§ 2. Categories of Product Defect
A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:
(a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;
(b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;
(c) is defective because of inadequate instructions or warnings when the foreseeable risks of *852harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.
Restatement (Third) of Torts: Products Liability § 2 (1998).
¶ 127. I would adopt the Third Restatement's recapitulation of the law as it has developed since the Second Restatement and Dippel, especially in the areas of design and warning defects, which the Restatement's authors acknowledge were not addressed in § 402A.
¶ 128. Strict liability without fault makes sense in manufacturing defect cases because it is often impossible to prove what went wrong in the manufacturing process to cause the dangerous defect, and because, as between the seller and the consumer, the seller is in a better position to control or distribute the risk of loss through quality control, insurance, and higher prices. Dippel, 37 Wis. 2d at 450-51; Restatement (Third) of Torts: Products Liability § 2 cmt. a (1998).
¶ 129. However, product liability for design and warning defects has a different rationale:
In contrast to manufacturing defects, design defects and defects based on inadequate instructions or warnings are predicated on a different concept of responsibility. In the first place, such defects cannot be determined by reference to the manufacturer's own design or marketing standards because those standards are the very ones that plaintiffs attack as unreasonable. Some sort of independent assessment of advantages and *853disadvantages, to which some attach the label "risk-utility balancing," is necessary. Products are not generically defective merely because they are dangerous.
In general, the rationale for imposing strict liability on manufacturers for harm caused by manufacturing defects does not apply in the context of imposing liability for defective design and defects based on inadequate instruction or warning. Consumer expectations as to proper product design or warning are typically more difficult to discern than in the case of a manufacturing defect. Moreover, the element of deliberation in setting appropriate levels of design safety is not directly analogous to the setting of levels of quality control by the manufacturer. When a manufacturer sets its quality control at a certain level, it is aware that a given number of products may leave the assembly line in a defective condition and cause injury to innocent victims who can generally do nothing to avoid injury. The implications of deliberately drawing lines with respect to product design safety are different....
Most courts agree that, for the liability system to be fair and efficient, the balancing of risks and benefits in judging product design and marketing must be done in light of the knowledge of risks and risk-avoidance techniques reasonably attainable at the time of distribution. To hold a manufacturer liable for a risk that was not foreseeable when the product was marketed might foster increased manufacturer investment in safety. But such investment by definition would be a matter of guesswork. Furthermore, manufacturers may persuasively ask to be judged by a normative behavior standard to which it is reasonably possible for manufacturers to conform. For these reasons, Subsections (b) and (c) speak of products being *854defective only when risks are reasonably foreseeable.
Restatement (Third) of Torts: Products Liability § 2 cmt. a (1998).
¶ 130. Wisconsin law on product defects arising out of inadequate instructions or warnings approximates the Third Restatement, in that liability is not imposed unless the seller knew or should have known of the particular danger connected with the use of the product.1 Tanner v. Shoupe, 228 Wis. 2d 357, 368, 596 N.W.2d 805 (Ct. App. 1999); Westphal v. E.I. du Pont de Nemours & Co., 192 Wis. 2d 347, 363, 531 N.W.2d 386 (Ct. App. 1995); Krueger v. Tappan Co., 104 Wis. 2d 199, 206, 311 N.W.2d 219 (Ct. App. 1981); Wis JI — Civil 3262. Wisconsin law on design defects and defects arising out of inadequate warnings should be brought into conformity with the Third Restatement.
¶ 131. Our leading design defect case, Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 121 Wis. 2d 338, 360 N.W.2d 2 (1984), which declared allegiance to the consumer contemplation test for determining product design defectiveness, represents the minority rule. "In a minority of jurisdictions the failure of a product to meet consumer expectations suffices, in and of itself, to *855establish liability in cases predicated on design defect. These jurisdictions represent a distinct minority, and there are reasons to believe their numbers may diminish over time." Restatement (Third) of Torts: Products Liability § 2 cmt. d at 73. The authors of the Third Restatement note that decisions relying exclusively on a consumer expectations test for determining liability in design defect cases have been "roundly criticized." Id. at 76.
¶ 132. Just as there is little justification for imposing liability for lack of a warning absent proof that foreseeable risks could have been reduced by a warning, there is little justification for imposing liability for a product design defect absent proof that foreseeable risks could have been reduced by an alternate design. This is not to say that strict product liability is synonymous with negligence; it is not. See Fuchsgruber v. Custom Accessories, Inc., 2001 WI 81, ¶ 2, 244 Wis. 2d 758, 628 N.W.2d 833 (strict product liability "is liability in tort, not liability for negligence"). The focus remains on the defectiveness of the product rather than the conduct of the seller.2 Id. at ¶ 24. But we must have some principled standards by which to evaluate product defectiveness in design and warning defect cases; otherwise strict liability will become absolute liability. Evaluating design and warning defectiveness solely by reference to' consumer expectations comes close to imposing absolute liability. *856Consumers generally do not have specific expectations as to product designs and warnings, beyond the obvious expectation that they will be safe.
¶ 133. In Sumnicht, this court adhered to the consumer contemplation test for use in design defect cases, but also outlined a list of factors to assist in the determination of dangerous defectiveness:
The relevant factors are:
"(1) [Cjonformity of defendant's design to the practices of other manufacturers in its industry at the time of manufacture; 2) the open and obvious nature of the alleged danger;. . .3) the extent of the claimant's use of the very product alleged to have caused the injury and the period of time involved in such use by the claimant and others prior to the injury without any harmful incident. . . .4) the ability of the manufacturer to eliminate danger without impairing the product's usefulness or making it unduly expensive; and 5) the relative likelihood of injury resulting from the product's present design."
Sumnicht, 121 Wis. 2d at 372 (quoting Collins v. Ridge Tool Co., 520 F.2d 591, 594 (7th Cir. 1975)). This list sounds an awful lot like the formulation contained in the Third Restatement and its commentary, and therefore conflicts with language elsewhere in Sumnicht about the primacy of the consumer contemplation test. The majority opinion resolves this internal conflict in favor of exclusive reliance on the consumer contemplation test. I would not. As the list of factors quoted above and the Third Restatement make clear, consumer expectations are relevant but not dispositive in the *857determination of whether a product design is defective and unreasonably dangerous.3
¶ 134. For the foregoing reasons, I would adopt § 2 of the Third Restatement and reverse and remand this case for application of its standard of liability. That is, the alleged design defect in the latex gloves that caused an allergic reaction in Linda Green would be evaluated based upon whether "the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design. . .and the omission of the alternative design renders the product not reasonably safe." Restatement (Third) of Torts: Products Liability § 2(b) (1998). Accordingly, I respectfully dissent.
¶ 135. I am authorized to state that Justice DAVID T. PROSSER joins this dissent.
Allergy cases fit most readily into the failure-to-warn category of product liability cases, because by definition, a product that is dangerous only to those who have allergic sensitivity to it cannot be considered dangerous when put to ordinary use by an ordinary consumer without such sensitivity. See Adelman-Tremblay v. Jewel Cos., 859 F.2d 517, 523—24 (7th Cir. 1988). Even then, the unusual susceptibility or idiosyncratic reaction of a consumer will not give rise to product liability for failure-to-warn unless the seller knew or had reason to know of the allergy-causing propensity of the product. Id. This case was not litigated on a failure-to-warn theory.
Our failure-to-warn product liability cases tend to rely upon the language of negligence, which is misleading inasmuch as strict product liability is not a species of negligence. The Third Restatement's formulation of the standards of liability in both design and warnings cases keeps the focus on the defectiveness of the product rather than the conduct of the seller, and therefore avoids any confusion with negligence.
The majority opinion actually goes so far as to state that "Wisconsin strict products liability law applies the consumer-contemplation test and only the consumer-contemplation test in all strict products liability cases." Majority op. at ¶ 34. This is a considerable overstatement. As noted above, we do not use the consumer contemplation test in cases in which the product defect is an inadequate or nonexistent warning. Similarly overstated is the majority's assertion that "under no circumstances" in a strict product liability case "must the plaintiff prove that the risk of harm presented by the product that caused his or her injury was foreseeable." Majority op. at ¶ 57. As noted above, liability is not imposed in strict product liability cases premised on inadequate or nonexistent warnings unless the seller knew or should have known of the danger, that is, unless the danger was foreseeable.