Products Liability: Father Backs Lawnmower Over Son
The parties in Horst v. Deere & Co. (decided July 14, 2009) dispute the proper phrasing of jury instructions in a products liability case. Here, the father backed up a riding lawnmower, running over the legs of his son.
The plaintiffs sought to alter the standard products liability jury instructions that use the words “user” or “consumer” to include the words “or bystander,” effectively introducing a bystander contemplation test mirroring the typical consumer contemplation test. The circuit court refused, instead adding the following:
The law in Wisconsin imposes a duty on a manufacturer to a bystander, if the bystander is injured by a defective product, which is unreasonably dangerous to the ordinary user or consumer.
After reviewing multiple cases cited by the parties, the court determined that no case addressed the issue of whether a bystander contemplation test existed. More importantly, it decided that the consumer contemplation test is the proper standard for all strict products liability cases:
We hold that the consumer contemplation test, and not a bystander contemplation test, governs all strict products liability claims in Wisconsin, including cases where a bystander is injured. While bystanders may recover when injured by an unreasonably dangerous product, the determination of whether the product is unreasonably dangerous is based on the expectations of the ordinary consumer.
Interestingly, Justice Gableman, who authored the majority opinion, adds a concurrence in which he argues that:
it is time for this court to adopt the Restatement (Third) of Torts: Products Liability § 2(b) (1998) in design defect cases.
Justices Prosser and Roggensack join in his concurrence, and Crooks, while part of the majority, writes to express his displeasure with Gableman’s going beyond the main scope of the parties’ arguments and discussing a “sea change” in Wisconsin law (although he’ll support the change, as his concurrence in Godoy v. E.I. duPont shows). All in all, a very interesting read.
