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Danger to bystander is insufficient

By: dmc-admin//May 5, 2008//

Danger to bystander is insufficient

By: dmc-admin//May 5, 2008//

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In a tragic accident, Jonathon Horst, 2 years old at the time, was severely injured when his father backed up a John Deere lawnmower over him. The blades of the lawn tractor were operating while the vehicle was in reverse.

The Horsts sued Deere & Company, claiming negligence and strict liability, given that the blades could be engaged while driving backward.

The family lost when the jury instructions did not allow them to consider the danger posed to a bystander.

In a strict product liability action, the standard for liability is whether the product is unreasonably dangerous to the ordinary user or consumer.

If it is not, then there can be no strict liability, even if it is unreasonably dangerous to a bystander.

At trial, the circuit court gave the standard jury instructed for strict product liability, WIS JI — Civil 3260.

The instruction states that the manufacturer of a product is strictly liable if the product is unreasonably dangerous to the ordinary user or consumer.

The Horsts requested that the instruction be amended to include bystanders, as well as users and consumers, but the court rejected the request.

The jury found that the tractor was not unreasonably dangerous to users or consumers, and judgment for Deere was entered. The Horsts appealed, but the Wisconsin Court of Appeals affirmed, in a decision by Judge Harry G. Snyder.

The Court of Appeals concluded that the standard instruction properly stated the law.

Under the Restatement (Second) of Torts 402A, a product is unreasonably dangerous if, among other elements, it is “unreasonably dangerous to the user or consumer.”

This standard, called the “consumer contemplation test,” has been the law in Wisconsin since 1967.

Snyder’s decision acknowledged that some cases since then have called the test into question, either suggesting, or (in a non-binding federal court case) stating outright, that bystanders as well as users and consumers are protected by the doctrine of strict liability.

Nevertheless, the Court of Appeals concluded that any such suggestions were “extinguished” by the Wisconsin Supreme Court in Green v. Smith & Nephew AHP, Inc., 2001 WI 109, 245 Wis.2d 772, 629 N.W.2d 727.

Without discussing the facts in Green, or the rationale, the Snyder wrote, “[In Green], the court declined to ‘abandon or qualify this state’s exclusive reliance on the consumer-contemplation test,’ and pronounced that ‘Wisconsin is committed to the consumer-contemplation test in all strict products liability cases.’ Green, at par. 46 (emphasis added by court of appeals).”

Because the circuit court directed the jury to apply the consumer-contemplation test, the Court of Appeals affirmed.

Analysis

When the Court of Appeals states that the Green decision “extinguished” any doubt over the decision in this case, it overstates its case.

It would be more accurate to say that, until or unless the Supreme Court says otherwise, the consumer contemplation test must be applied in all strict product liability cases.

In Green, a nurse suffered an allergic reaction to latex gloves, and sued the manufacturer.

The case is not as dispositive as the Court of Appeals contends, because bystanders were not at issue (the nurse was indisputably a user or consumer).

In Green, the manufacturer argued that the consumer contemplation test should only apply to manufacturing defects — not to design defects or defects based on inadequate instructions or warnings.

Over a dissent by Justice Diane S. Sykes, the majority rejected the argument. It is in that context that the majority’s statement — that the test applies to “all” strict product liability cases — must be considered.

Injuries to bystanders present a very different, and a very thorny, issue.

Most products, if they are unreasonably dangerous to bystanders, will also be unreasonably dangerous to users and consumers themselves — cars, or metal lawn darts, for example.

The same holds true for a lawn mower that the user pushes from behind; if it is unreasonably dangerous, the user or consumer is the one most likely to be hurt.

But a riding lawn mower that can cut grass while going in reverse is a rare product that poses more risk to bystanders than to the user. Thus, an exception to the consumer contemplation test could be made for such a product, while still preserving the test in principle.

Until the Supreme Court does so, it is not the business of the Court of Appeals to create such exceptions.

But it overstates the holding in Green to say that it “extinguished” any doubt about whether such an exception may exist.

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