Horst v. Deere & Co.

Wisconsin Supreme Court · Torts

TortsStrict Products LiabilityBystander ClaimsJury Instructionsstrict products liabilityconsumer contemplation testbystanderdesign defect

Facts

Two-year-old Jonathan Horst was injured when his father backed a John Deere LT160 riding lawn mower over him while mowing in reverse. The mower had a default no-mow-in-reverse safety feature, but also had a Reverse Implement Option (RIO) override that allowed reverse mowing after manual activation. The operator's manual repeatedly warned against mowing in reverse, especially around children or bystanders, and the parties agreed Jonathan's father had read but disregarded those warnings. At trial, the plaintiffs claimed the mower was defectively designed because it allowed reverse mowing and argued the jury should evaluate unreasonable danger from the perspective of an ordinary bystander rather than an ordinary user or consumer.

Issue

When a bystander is injured by an allegedly defective product, is unreasonable danger determined under Wisconsin strict products liability law by the expectations of an ordinary bystander or by the expectations of an ordinary user or consumer? Relatedly, did the circuit court misstate the law by instructing the jury under the consumer contemplation test rather than a proposed bystander contemplation test?

Rule

In Wisconsin, the consumer contemplation test—and not a bystander contemplation test—governs all strict products liability claims, including claims brought by injured bystanders. A bystander may recover in strict products liability only if the product is unreasonably dangerous as measured by the expectations of the ordinary user or consumer.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Madison, Wisconsin, Lena Ortiz was walking past a home renovation site when a portable brick saw launched a fragment that struck her eye. She sued the saw's manufacturer in strict products liability, arguing that because she was a passerby rather than a purchaser or operator, the jury should decide unreasonable danger from the perspective of an ordinary pedestrian.

Which jury standard is most consistent with Wisconsin law as stated by the majority opinion?

Explanation. The majority held that Wisconsin uses the consumer contemplation test in all strict products liability cases, including bystander cases. A bystander may recover, but only if the product is unreasonably dangerous as measured by the expectations of the ordinary user or consumer, not an ordinary bystander or the particular plaintiff.