Torts
Product liability; bystanders

In instructing a jury in a products liability case, the circuit court did not err in refusing to submit to the jury whether the product was unreasonably dangerous to bystanders.

"If there was any doubt that the consumer contemplation test is the applicable standard in all strict products liability cases, our supreme court extinguished it in Green. There, 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, 245 Wis. 2d 772, ¶46 (emphasis added). With this mandate from the supreme court, we hold that the circuit court properly submitted Wis JI-Civil 3260, which reflects the consumer contemplation test, to the jury. We further hold that the court's supplement to the instruction accurately stated that bystanders are protected by the doctrine of strict liability if the bystander is injured by a defective product that is unreasonably dangerous to the ordinary user or consumer.

"The circuit court instructed the jury to apply the consumer contemplation test, which is the legal principle to be applied in all strict products liability cases. See Green, 245 Wis. 2d 772, ¶46. Though the Howes court extended the strict liability doctrine to bystanders, recent supreme court case law teaches that the bystander claimant must nonetheless demonstrate an unreasonably dangerous defect by application of the consumer contemplation test."

Affirmed.

Recommended for publication in the official reports.

2006AP2933 Horst v. Deere & Co.

Dist. II, Washington County, Ziegler, J., Snyder, J.

Attorneys: For Appellant: Cabaniss, John C., Milwaukee; Schepp, Rachel N., Milwaukee; For Respondent: Zaleski, Michael L., Madison; Brogan, Kevin H., Philadelphia, PA

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