Horst v. Deere & Co.

Decision Date14 July 2009
Docket NumberNo. 2006AP2933.,2006AP2933.
Citation2009 WI 75,769 N.W.2d 536
PartiesKara HORST and Jonathan Horst, by his Guardian ad Litem, Plaintiffs-Appellants-Petitioners, v. DEERE & COMPANY, a Delaware Corporation, Defendant-Respondent.
CourtWisconsin Supreme Court

For the plaintiff-appellant-petitioners there were briefs filed by John C. Cabaniss and Cabaniss Law, Mequon, and oral argument by John C. Cabaniss.

For the defendant-respondent there was a brief by Michael L. Zaleski and Quarles & Brady LLP, Madison; Lars E. Gulbrandsen and Quarles & Brady LLP, Milwaukee; and James Brogan, Nancy Rappaport, and DLA Piper U.S. LLP, Philadelphia, Pa., and oral argument by Michael L. Zaleski.

An amicus curiae brief was filed by William C. Gleisner, III and the Law Offices William C. Gleisner, Milwaukee, on behalf of the Wisconsin Association for Justice.

An amicus curiae brief was filed by Colleen D. Ball, Wauwatosa; Stephanie A. Scharf, Deborah H. Bornstein, and Schoeman, Updike, Kaufman & Scharf, Chicago, Ill.; and Hugh F. Young, Jr., Reston, Va., on behalf of the Product Liability Advisory Council, Inc.


This is a review of a published decision of the court of appeals affirming the judgment of the Washington County Circuit Court, Annette K. Ziegler, Judge.1 After a jury trial, the circuit court rejected Plaintiffs' negligence and strict products liability personal injury claims. Plaintiffs moved for a new trial, challenging the accuracy of the jury instructions on the strict products liability claim. The circuit court concluded that the jury was properly instructed and denied the motion for a new trial. The court of appeals affirmed.

¶ 2 The jury instructions were based on Wisconsin Jury Instruction—Civil 3260 with a supplemental statement regarding bystander claims. The jury was informed that a bystander personal injury claim in strict products liability is only available if the product is unreasonably dangerous based on the expectations of an ordinary user or consumer (the "consumer contemplation test"). Plaintiffs claim that this jury instruction was an incorrect statement of the law. They contend that when a product is dangerous only to a bystander and not to a user or consumer, the consumer contemplation test is inappropriate. Rather, the jury should be instructed that a product is unreasonably dangerous based on the contemplation and expectations of an ordinary bystander. They call this a "bystander contemplation test," and assert that this is and should be the law in Wisconsin.

¶ 3 Thus, the main question before us is whether Wisconsin has adopted or should adopt a "bystander contemplation test." If the bystander contemplation test is the law, we must determine whether the circuit court's jury instructions were a misstatement of the law, and if so, whether the error was prejudicial.

¶ 4 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.2 Therefore, the jury was properly instructed, and the decision of the court of appeals is affirmed.


¶ 5 The facts of this case are horrific. 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. Before Kara arrived outside, 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. Michael screamed, realizing that he had severed both of Jonathan's feet. Kara called 911, and Jonathan was flown to Children's Hospital. There he received multiple surgeries, and now wears prosthetics on both legs.

¶ 6 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.

¶ 7 To implement the RIO feature, an operator must depress the brake pedal and press the RIO switch. Once engaged, the RIO system allows an operator to mow in reverse without stalling either the engine or the mowing device. When reverse mowing is complete, the operator can continue to mow forward without shutting off the mowing device. When the operator begins mowing forward again, the lawn mower returns to its default position, which requires the operator to manually engage the RIO device again to mow in reverse.

¶ 8 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. That is when Jonathan was injured.

¶ 9 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 warnings included the following:

• Before backing up, stop mower blades or attachments and look down and behind the machine carefully, especially for children.

• CAUTION: Avoid injury! Children or bystanders may be injured by runover [sic] and rotating blades. Before backing up, carefully check the area around the machine.

• NOTE: Backing up while the mower is engaged is strongly discouraged.

• The Reverse Implement Option should be used only when operating another implement (attachment) or when the operator deems it necessary to reposition the machine with the mower engaged.

The parties agree that Michael read but disregarded these warnings, choosing to mow in reverse in the presence of his young children.

¶ 10 Following the accident, the Horsts filed a lawsuit against Deere & Company ("Deere") 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.

¶ 11 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. It concluded that while bystanders injured by unreasonably dangerous products may recover under Howes v. Hansen, 56 Wis.2d 247, 201 N.W.2d 825 (1972) (hereafter "Howes I"), the question of whether the product was unreasonably dangerous and whether punitive damages should be awarded were issues of fact for the jury.

¶ 12 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, choosing 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."

¶ 13 The Horsts also requested a special verdict question asking the jury: "Do you find from the evidence that 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.3

¶ 14 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. Accordingly, Deere was not strictly liable for Jonathan's injuries.

¶ 15 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.

¶ 16 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. Horst v. Deere & Co., 2008 WI App 65, ¶ 20, 312 Wis.2d 421, 752 N.W.2d 406. The Horsts...

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