Wisconsin Court of Appeals rules danger to bystander is insufficient.

Byline: David Ziemer

In a tragic accident, Jonathon Horst, 2 years old at the time, was severely injured when his father backed up a John Deere lawnmower over him. The blades of the lawn tractor were operating while the vehicle was in reverse.

The Horsts sued Deere & Company, claiming negligence and strict liability, given that the blades could be engaged while driving backward.

The family lost when the jury instructions did not allow them to consider the danger posed to a bystander.

In a strict product liability action, the standard for liability is whether the product is unreasonably dangerous to the ordinary user or consumer.

If it is not, then there can be no strict liability, even if it is unreasonably dangerous to a bystander.

At trial, the circuit court gave the standard jury instructed for strict product liability, WIS JI -- Civil 3260.

The instruction states that the manufacturer of a product is strictly liable if the product is unreasonably dangerous to the ordinary user or consumer.

The Horsts requested that the instruction be amended to include bystanders, as well as users and consumers, but the court rejected the request.

The jury found that the tractor was not unreasonably dangerous to users or consumers, and judgment for Deere was entered. The Horsts appealed, but the Wisconsin Court of Appeals affirmed, in a decision by Judge Harry G. Snyder.

The Court of Appeals concluded that the standard instruction properly stated the law.

Under the Restatement (Second) of Torts 402A, a product is unreasonably dangerous if, among other elements, it is unreasonably dangerous to the user or consumer.

This standard, called the consumer contemplation test, has been the law in Wisconsin since 1967.

Snyder's decision acknowledged that some cases since then have called the test into question, either suggesting, or (in a non-binding federal court case) stating outright, that bystanders as well as users and consumers are protected by the doctrine of strict liability.

Nevertheless, the Court of Appeals concluded that any such suggestions were extinguished by the Wisconsin Supreme Court in Green v. Smith & Nephew AHP, Inc., 2001 WI 109, 245 Wis.2d 772, 629 N.W.2d 727.

Without discussing the facts in Green, or the rationale, the Snyder wrote, [In Green], the court declined to 'abandon or qualify this state's exclusive reliance on the consumer-contemplation test,' and pronounced that 'Wisconsin is committed to the consumer-contemplation test in all...