319 Wis. 2d 147, 769 N.W.2d 536 (2009)
On the afternoon of May 2, 2004, the Horst family returned home from an overnight trip to Wisconsin Dells. Two-year-old Jonathan and his older brother went to play outside in the yard. Jonathan's mother, Kara, was planning to watch Jonathan as she hung laundry on an outdoor clothesline, but stopped to use the restroom first. Jonathan's father, Michael, decided to mow the lawn using their John Deere LT160 riding lawn mower. As Michael began to cut the lawn, he decided to mow in reverse along the rear of the house, looking over his right shoulder. Jonathan, however, had moved behind the lawn mower to Michael's left, out of Michael's line of sight. As Michael proceeded backwards, he saw Jonathan's shoe come out the other side, realizing that he had severed both of Jonathan's feet.1
The John Deere LT160 mower Michael was using came equipped with a no-mow-in-reverse safety feature that stops both the engine and mower blades when an operator begins to travel in reverse while the mower blades are engaged. However, the lawn mower also had what amounts to an override feature, the Reverse Implement Option (RIO), which allows an operator to mow in reverse with the mower blades in operation. Michael Horst engaged the RIO device twice before the accident in this case. He first engaged the RIO to mow toward the Horst home along his gravel driveway. He then moved forward along the back of the house. He engaged the RIO device again to mow in reverse along the back of the house.2 The LT160 lawn mower operator's manual contained numerous warnings relating to mowing in reverse and mowing in the presence of children or bystanders. The parties agree that Michael read but disregarded these warnings, choosing to mow in reverse in the presence of his young children.3
Following the accident, the Horsts filed a lawsuit against Deere & Company in Washington County Circuit Court, bringing negligence and strict products liability claims. On the strict products liability claim, the Horsts argued that designing a mower to operate in reverse is unreasonably dangerous and that the mower should have had an alternative design. The Horsts asserted that the lawn mower should not have been equipped with the RIO, thus preventing an operator from ever mowing in reverse. The Horsts also sought punitive damages, alleging that the design demonstrated a deliberate disregard for safety.4 Deere moved for summary judgment on the grounds that the consumer contemplation test barred Jonathan's strict products liability claim. The circuit court denied the motion for summary judgment.5
At trial, the Horsts requested that Wisconsin Jury Instruction—Civil 3260, which does not mention bystanders, be supplemented to reflect the availability of recovery for bystanders. They specifically proposed that the instruction include the phrase or bystander following most occurrences of user and consumer in the standard instruction. The circuit court denied the Horsts' proposed instructions. It chose to give the standard instructions supplemented with the following statement. 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.6 The Horsts also requested a special verdict question asking the jury whether the subject lawn tractor, when it left the hands of Defendant Deere & Company, was in a defective condition so as to be unreasonably dangerous to a prospective user/consumer or bystander. The circuit court denied this request and submitted the question to the jury without the or bystander language.7
The jury ultimately found both Michael and Kara Horst, but not Deere, negligent in the injury to their son, Jonathan. The jury also found that the lawn mower in question was not in a defective condition so as to be unreasonably dangerous to a prospective user or consumer.8 After the jury verdict, the Horsts moved for a new trial on the grounds that the jury was improperly instructed. The circuit court concluded that the instruction was in accord with the facts and existing case law, and thus was not prejudicial. The circuit court therefore denied the motion for a new trial and dismissed the Horsts' claims with prejudice.9 The Horsts filed a notice of appeal with the court of appeals, and also filed a petition to bypass with this court, which was denied. On its review, the court of appeals agreed with the circuit court, concluding that the consumer contemplation test is the proper test for unreasonably dangerous products, and that the jury instructions constituted an accurate statement of the law. The Horsts then petitioned this court for review.10
Whether Wisconsin has adopted or should adopt a bystander contemplation test for determining whether a product is unreasonably dangerous in strict products liability cases involving bystanders?11
Wisconsin adheres to the consumer contemplation test from Restatement (Second) of Torts § 402A comment i, under which a product is unreasonably dangerous when it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics; this test governs all strict products liability claims, including those involving bystanders.12
No. The established facts show that the John Deere LT160 riding lawn mower was equipped with both a no-mow-in-reverse safety feature and the RIO override. Michael Horst engaged the RIO device twice despite reading the operator's manual warnings against mowing in reverse near children. The jury found that the mower was not in a defective condition so as to be unreasonably dangerous to a prospective user or consumer.13 Application of the consumer contemplation test requires evaluating the product's design against the expectations of an ordinary consumer rather than an ordinary bystander. The circuit court and court of appeals correctly applied this standard when they rejected the Horsts' proposed instructions and special verdict question that would have substituted bystander expectations.14
The facts further demonstrate that users and consumers can and do contemplate risks to bystanders when operating dangerous equipment such as lawn mowers. This confirms that the consumer contemplation test adequately addresses bystander injuries without creating a separate standard.15
Wisconsin has neither adopted nor should adopt a bystander contemplation test; the consumer contemplation test governs all strict products liability claims.16
Related opinions on this issue
Justice Crooks concurred in the result but wrote separately to emphasize that the court should not reach the question of adopting Restatement (Third) of Torts: Products Liability § 2(b) in design defect cases.17 He noted that references to the Restatement (Third) appeared only in glancing footnotes in the petitioners' reply brief and a non-party amicus brief, providing an exceedingly flimsy basis for considering such a fundamental change.18 Justice Crooks stressed that any consideration of abandoning forty-two years of precedent beginning with Dippel v. Sciano should occur only after full briefing and oral argument.
He limited his agreement to the holding that Wisconsin law does not recognize a bystander contemplation test.19
Joined by Justices Prosser And Roggensack
Justice Gableman concurred but wrote separately to argue that the consumer contemplation test is deficient in design defect cases and that the court should adopt Restatement (Third) of Torts: Products Liability § 2(b).20 He explained that the consumer contemplation test is vague, unworkable in complex design cases, and fails to provide predictability for manufacturers. The Restatement (Third) offers a coherent risk-utility framework focused on reasonable alternative designs and foreseeable risks.21
Justice Gableman highlighted that bystanders receive less protection under the current test because they lack access to warnings and depend on users' care. He urged adoption of the Restatement (Third) to place bystanders on a level playing field by requiring manufacturers to account for all foreseeable injuries.22
Joined by Chief Justice Abrahamson
Justice Bradley dissented, joined by Chief Justice Abrahamson, agreeing that bystanders may recover but contending that the special verdict question and jury instructions misstated the law by repeatedly directing the jury to consider only whether the mower was unreasonably dangerous to a prospective user or consumer.23 She argued that the instructions created the clear impression that a bystander could recover only if the product was also unreasonably dangerous to users, contrary to Howes I and Komanekin. The error was prejudicial because the jury was never asked the central question of danger to the bystander child.24
Justice Bradley further criticized the concurrences for advocating adoption of the Restatement (Third) without party briefing or argument.25
Whether the circuit court's jury instructions on the strict products liability claim were a misstatement of the law?26
Jury instructions must fully and fairly inform the jury of Wisconsin law on jury instructions in strict products liability cases. An instruction that is an incorrect or misleading statement of the law is erroneous. The question of whether instructions accurately state the law is reviewed de novo.27
No. The established facts show that the circuit court gave the standard Wisconsin Jury Instruction—Civil 3260 supplemented with the statement that 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.28 This instruction accurately reflected the consumer contemplation test that governs all strict products liability claims, including bystander cases, as confirmed by the court of appeals.29 The Horsts' proposed modifications substituting or bystander language would have introduced an incorrect bystander contemplation test that the law does not recognize. The instructions as given properly directed the jury to apply consumer expectations to determine whether the mower was unreasonably dangerous.30
The circuit court's jury instructions on the strict products liability claim were not a misstatement of the law.31
Whether any error in the jury instructions was prejudicial?32
An error in jury instructions affects the substantial rights of a party. It requires a new trial only if it undermines confidence in the outcome, meaning there is a reasonable probability the outcome would have been different but for the error.33
No. The established facts show that the jury found both Michael and Kara Horst negligent but found that the lawn mower was not in a defective condition so as to be unreasonably dangerous to a prospective user or consumer, resulting in a verdict for Deere on the strict products liability claim. Because the instructions correctly stated the consumer contemplation test, there was no error. Thus there was no basis to conclude that any different instruction would have produced a different outcome.34 The jury's findings on negligence and the absence of a defect under the proper legal standard confirm that confidence in the verdict remains intact.35
Any error in the jury instructions was not prejudicial.36