Horst v. Deere & Company

Decision Date30 April 2008
Docket NumberNo. 2006AP2933.,2006AP2933.
Citation2008 WI App 65,752 N.W.2d 406
PartiesJonathan HORST, by his Guardian ad Litem, and Kara Horst, Plaintiffs-Appellants<SMALL><SUP>&#x2020;</SUP></SMALL> v. DEERE & COMPANY, a Delaware Corporation, Defendant-Respondent.
CourtWisconsin Court of Appeals

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of John C. Cabaniss and Rachel N. Schepp of von Briesen & Roper, S.C., Milwaukee.

On behalf of the defendant-respondent, the cause was submitted on the brief of Michael L. Zaleski of Quarles & Brady LLP, Madison.

Before BROWN, C.J., ANDERSON, P.J., and SNYDER, J.


Jonathan Horst, by his guardian ad litem, and Jonathan's mother, Kara Horst, appeal from a judgment dismissing their personal injury claim against Deere & Company. The Horsts contend that they are entitled to a new trial because the court provided an erroneous jury instruction on the issue of Deere's duty of care in the design of its products and that there is a probability that the erroneous instruction and the corresponding special verdict question affected the outcome of the trial. We disagree with the Horsts' characterization of a manufacturer's duty and therefore we affirm the judgment dismissing the Horsts' claim together with the order denying them a new trial.


¶ 2 On May 2, 2004, the Horst family returned home from an overnight trip to the Wisconsin Dells. Jonathan's father, Michael, decided to mow the lawn when they arrived home late that afternoon. Kara planned to watch Jonathan, who was two years old at the time, and his older brother, Adam, while she put laundry out to hang on the line. Kara stopped to use the bathroom and Michael went out on the lawn tractor to mow.

¶ 3 Michael mowed across the yard and came up to the gravel driveway. At that point, he depressed the override switch, put the lawn tractor into reverse gear, and began to mow backward toward the house. He then mowed forward along the back of the house to the patio, stopped the tractor, depressed the override again and began to mow in reverse. Michael was looking over his right shoulder and never saw Jonathan, who was to his left.

¶ 4 Kara was in the master bedroom and heard Michael hit something with the lawn tractor. She heard Michael scream and she went running to see what had happened. Michael was screaming that he had cut Jonathan's feet off, and Kara called 911. A nurse who was at a nearby home came to Jonathan's aid and an ambulance arrived shortly thereafter. The ambulance took Jonathan to the local hospital, and he was transferred to Children's Hospital by Flight for Life one-half hour later. Jonathan underwent multiple surgeries and endured long-term follow-up care. He now wears prosthetics on both legs.

¶ 5 The Horsts filed a lawsuit claiming negligence and strict liability against Deere, the manufacturer of the lawn tractor. They claimed punitive damages also, alleging that the design of Deere's tractor demonstrated a deliberate disregard for safety. Horsts asserted that Deere was at fault for designing a lawn tractor that was unreasonably dangerous, specifically with regard to the tractor's override switch that allowed the operator to mow in reverse. Deere moved for summary judgment on grounds that the "consumer contemplation test" barred Jonathan's strict liability claim. Deere also argued that the negligence claim and claim for punitive damages failed as a matter of law.

¶ 6 In response, the Horsts argued that Jonathan was a bystander, and under the supreme court's decision in Howes v. Hansen, 56 Wis.2d 247, 201 N.W.2d 825 (1972), strict liability "applies to bystanders as well as users and consumers." Horsts asserted that even if the danger was open and obvious to the operator, it did not immunize Deere from strict liability where innocent bystanders were concerned.

¶ 7 The circuit court denied Deere's motion, holding that "[s]ufficient factual issues exist that should be presented for jury determination. The issue of unreasonable dangerousness and consumer contemplation are questions for the trier of fact." The court cited Howes, summarizing the supreme court's ruling as follows: "[S]trict liability of a seller of a product for physical harm to a user or consumer could be extended to bystanders, such as [a] two year old plaintiff who was injured when his foot came in contact with a power mower manufactured by the defendant." The case proceeded to trial.

¶ 8 At the close of evidence, the Horsts requested WIS JI — CIVIL 3260, modified to reflect Jonathan's status as a bystander, which read (modifications in italics):

A manufacturer of a product who sells a defective product which is unreasonably dangerous to the ordinary user, consumer or bystander, and which is expected and does reach the consumer without substantial change in the condition in which it is sold, is regarded by law as responsible for harm caused by the product even though he or she has exercised all possible care in the preparation and sale of the product, provided the product was being used for the purpose for which it was designed and intended to be used.

A product is said to be defective when it is in a condition not contemplated by the ordinary user, consumer or bystander which is unreasonably dangerous to the ordinary user, consumer or bystander, and the defect arose out of design, manufacture, or inspection while the article was in the control of the manufacturer. A defective product is unreasonably dangerous to the ordinary user, consumer or bystander when it is dangerous to an extent beyond that which would be contemplated by the ordinary user, consumer or bystander possessing the knowledge of the product's characteristics which were common to the community. A product is not defective if it is safe for normal use.

A manufacturer is not under a duty to manufacture a product which is absolutely free from all possible harm to every individual. It is the duty of the manufacturer not to place upon the market a defective product which is unreasonably dangerous to the ordinary user, consumer or bystander.

¶ 9 The circuit court rejected the Horsts injection of the words "or bystander" throughout the instruction and instead, over the Horsts' objection, used the pattern jury instruction with the following addition at the end: "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."

¶ 10 The Horsts also requested a special verdict question asking the jury whether the lawnmower was defective so as to be unreasonably dangerous to a bystander. The circuit court denied the request and submitted the following question: "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?" The jury answered this question "no."

¶ 11 The Horsts filed a motion for a new trial, alleging that the jury had been improperly instructed on the duty of a manufacturer to a bystander. The circuit court denied the motion. The Horsts appeal.


¶ 12 The Horsts present two issues on appeal. First, they ask whether the circuit court erred "in instructing the jury that a manufacturer's [RESTATEMENT (SECOND) OF TORTS § 402A (1965)]1 duty to design a product that is not unreasonably dangerous to bystanders is satisfied if the product is not unreasonably dangerous to users." The Horsts assert that Deere had a duty to manufacture a lawn tractor that was not defective and unreasonably dangerous to a bystander. The Horsts contend that the circuit court's modified jury instruction foreclosed the jury from deciding whether Deere's tractor design, which included an override switch for mowing in reverse, resulted in a product that was unreasonably dangerous to an innocent bystander like Jonathan. Second, if we determine that the jury instruction and the corresponding special verdict question were erroneous, the Horsts ask whether the error contributed to the outcome of the trial such that a new trial is warranted. If so, the Horsts propose the only remedy is a new trial with a properly instructed jury and a properly crafted special verdict question.

¶ 13 The circuit court has broad discretion as to the instructions it will give to a jury in any particular case. McMahon v. Brown, 125 Wis.2d 351, 354, 371 N.W.2d 414 (Ct.App.1985). Instructions must fully and fairly inform the jury about the applicable principles of law. Anderson v. Alfa-Laval Agri, Inc., 209 Wis.2d 337, 345, 564 N.W.2d 788 (Ct.App.1997). As long as the instructions adequately advise the jury of the law it is to apply, the court has the discretion to decline to give alternative or modified instructions even though they may properly state the law. Id. If the jury instructions are not erroneous, the court's exercise of discretion will be affirmed on appeal. Id. If an instruction is erroneous, a new trial will not be ordered unless the court's error was prejudicial. Id. Accordingly, we turn to the law of strict products liability to determine whether the court's jury instruction, which did not incorporate the Horsts's proposed modifications, properly informed the jury of the applicable legal principles.

¶ 14 Strict products liability law holds manufacturers accountable for selling defective and unreasonably dangerous products that cause injury to consumers. Wisconsin courts have adhered to the rule set forth in RESTATEMENT (SECOND) OF TORTS § 402A since 1967. See Dippel v. Sciano, 37 Wis.2d 443, 460, 155 N.W.2d 55 (1967). To prevail, a claimant must prove five elements: (1) the product was defective when it left the defendant's possession, (2) it was unreasonably dangerous to the user or consumer, (3) the defect was a cause of the claimed injuries, (4) the transaction was part of the seller's usual...

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3 cases
  • City of Milwaukee v. Nl Industries
    • United States
    • Wisconsin Court of Appeals
    • November 25, 2008
    ...affirmed on appeal. If an instruction is erroneous, a new trial will not be ordered unless the court's error was prejudicial. Horst v. Deere & Co., 2008 WI App 65, ¶ 13, 312 Wis.2d 421, 752 N.W.2d 406 (citations omitted). We now address each of the City's arguments regarding what it contend......
  • Horst v. Deere & Co.
    • United States
    • Wisconsin Supreme Court
    • July 14, 2009
    ...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 then petitioned this court for II. STANDARD OF REVIEW ¶ 17 This case asks us t......
  • Kochanski v. Speedway Superamerica, LLC
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    • Wisconsin Court of Appeals
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    ...case”). If a court erroneously exercises its discretion, and if the error is prejudicial, we will order a new trial. See Horst v. Deere & Co., 2008 WI App 65, ¶ 13, 312 Wis.2d 421, 752 N.W.2d 406,aff'd,2009 WI 75, 319 Wis.2d 147, 769 N.W.2d 536. A court erroneously exercises its discretion ......

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