The Wisconsin Supreme Court on July 14 issued a decision (4-2) affirming an appeal from a lower court that Deer & Company was not liable under strict products liability for an injury caused to a bystander. (Justice Annette Ziegler did not participate because she was the judge in the trial court case.)

The case, Horst v. Deere & Co., 2006 AP 2933, 2009 WI 75, involves a horrific set of facts. The owner of a riding lawn mower severely injured his two-year-old son after backing over the child with the mower blades moving. The riding lawn mower came equipped with a no-mow-in-reverse safety feature that stops the engine and the mower blades when the operator begins driving the mower in reverse. However, the owner disengaged the safety device, which allowed the mower blades to continue as the mower drove in reverse. The owner lost sight of his son and accidentally ran over the child’s feet causing significant injuries.

The family sued Deere & Company, bringing negligence and strict products liability claims. The issue in the case was whether the court applied the correct legal standard when deciding whether the manufacturer’s product is unreasonably dangerous when a bystander-in this case the two-year-old son-is injured.

Justice Michael Gableman, writing for the majority, ruled that the lower court applied the proper standard. The court rejected the plaintiff’s attempt to provide a new standard based on the expectations of the bystander. The court reasoned that a separate bystander test would “create different levels of duty for strict products liability purposes, blurring the line between negligence and strict products liability.” The court further explained that the “manufacturers would owe a certain level of duty to the user or consumer, and a different, likely higher level of duty to a bystander.”

The court also noted that other remedies are still available to plaintiffs in the similar cases, such as a negligence claim. However, the trial court found in this case that the father’s negligence contributed to the child’s injury, not the manufacturer’s product.

Justices Gableman, David Prosser, and Patience Roggensack wrote a separate concurring opinion calling on the court to adopt a new test when determining whether a product is unreasonably dangerous in design defect products liability cases. The three justices argue that Wisconsin should move away from the “consumer expectation test” under the Restatement of Torts (Second), and instead adopt the newer “reasonable alternative design” test under the Restatement of Torts (Third).

The dissent, authored by Justice Ann Walsh Bradley and Chief Justice Shirley Abrahamson, argued that the lower court incorrectly applied the correct legal standard. According to the dissent, the correct question was not whether the product posed a danger to the father riding on the lawn mower, but rather whether it posed a danger to the young child. The dissent also criticized the concurring opinion calling on the court to adopt the newer “reasonable alternative design” test under the Restatement of Torts (Third).