769 N.W.2d 536 (2009) 2009 WI 75

Kara HORST and Jonathan Horst, by his Guardian ad Litem, Plaintiffs-Appellants-Petitioners,
v.
DEERE & COMPANY, a Delaware Corporation, Defendant-Respondent.

No. 2006AP2933.

Supreme Court of Wisconsin.

Argued February 3, 2009. Decided July 14, 2009.

*537 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.

¶ 1 MICHAEL J. GABLEMAN, J.

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 *538 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.

I. BACKGROUND

¶ 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 *539 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 *540 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 *541 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 then petitioned this court for review.

II. STANDARD OF REVIEW

¶ 17 This case asks us to evaluate the sufficiency of the circuit court's jury instructions. Generally, "a trial court has broad discretion when instructing a jury." White v. Leeder, 149 Wis.2d 948, 954, 440 N.W.2d 557 (1989). If the jury instructions fully and fairly explain the relevant law, there are no grounds for reversal. Green v. Smith & Nephew AHP, Inc., 2001 WI 109, ¶ 25, 245 Wis.2d 772, 629 N.W.2d 727. The question of whether the jury instructions accurately state the law is a question of law, which we review de novo. Id.

¶ 18 If the jury instructions were an erroneous statement of the law, a new trial will be ordered only if the court's error "affected the substantial rights of the party." Wis. Stat. § 805.18(2) (2007-08). An error affects the substantial rights of the party if it undermines confidence in the outcome. State v. Dyess, 124 Wis.2d 525, 544-45, 370 N.W.2d 222 (1985). An error undermines confidence in the outcome if there is a reasonable probability^[4] the outcome would have been different but for the error. Id. at 544, 370 N.W.2d 222.

III. DISCUSSION

¶ 19 This case is a dispute over both what the law is—that is, what Wisconsin courts have said—and over what the law should be. The parties here dispute the meaning and relevance of several cases, and underlying this, disagree about the proper scope of strict products liability law in Wisconsin.

¶ 20 To address these questions, we first, in subsection A (¶¶ 21-31), briefly introduce the development of and theory behind strict products liability and the consumer contemplation test. In subsection B (¶¶ 32-35), we explain the proposed bystander contemplation test as proffered by the Horsts. In subsection C (¶¶ 36-67), we review the significant cases relied on by the parties. Finally, in subsection D (¶¶ 68-81), we analyze and answer the ultimate question before us—whether the consumer contemplation test is the proper standard for determining whether a product is unreasonably dangerous when a bystander is injured.

A. Strict Products Liability and The Consumer Contemplation Test

¶ 21 Historically, with the exception of the sale of food, a supplier of a product was generally not liable for injuries caused by that product without a showing of negligence or privity of contract. See Restatement (Second) of Torts § 402A (hereafter *542 "§ 402A") cmt. b (1965).^[5] This began to change in the 1950s and 1960s as courts developed theories of liability, often based on warranty-like concepts, to hold manufacturers or sellers liable for injuries even without negligence or privity of contract. See id. (describing some of the early decisions as displaying "considerable ingenuity in evolving more or less fictitious theories of liability to fit the case"). There was, in short, a growing recognition that consumers needed protection from defective products that caused harm to consumers or their property. See id.

¶ 22 In the early 1960s, during this same time, the American Law Institute was drafting what became the Restatement (Second) of Torts. The Restatement (Second) attempted to capture this emerging line of cases by creating a new category of tort claims—strict products liability— which it set forth in the newly created § 402A. Although strict products liability was still in its intellectual infancy, § 402A was remarkably influential in speeding the adoption of this emerging area of law in courts around the country. See Douglas A. Kysar, The Expectations of Consumers, 103 Colum. L.Rev. 1700, 1711 (2003); George W. Conk, Punctuated Equilibrium: Why Section 402A Flourished and the Third Restatement Languished, 26 Rev. Litig. 799, 808-09 (2007). We joined this trend and adopted § 402A in 1967 in Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967).^[6]

¶ 23 This strict products liability structure, whereby a manufacturer bears the costs for injuries resulting from product use, even when the manufacturer was not negligent, arose for at least three important policy reasons.

¶ 24 First, strict products liability serves as a cost shifter. See § 402A cmt. c. It takes the usually overwhelming cost of injury off of the injured person and places it on the manufacturer. The manufacturer generally passes the costs for injuries and preventative safety measures on to all consumers through higher product prices. This liability system, then, spreads the cost of the injury risk to all consumers. Id. The justification relied upon by courts is that companies have the capacity to bear the costs and the ability to assume them more efficiently than individuals.

¶ 25 A second rationale underpinning strict products liability is fundamental fairness *543 to the injured person. Id. If manufacturers can reasonably design a safer product or a product that better accords with the safety expectations of consumers but choose not to do so, they should be held liable for the resultant injuries.

¶ 26 Finally, a third reason for strict products liability is that it provides a strong incentive for deterrence. Restatement (Third) of Torts: Products Liability (hereafter "Restatement (Third)") § 2 cmt. a (1998). When a manufacturer can reasonably prevent an injury, strict products liability gives them a strong incentive to do so. This litigation threat promotes manufacturer investment in safer designs, quality control, and the furnishing of adequate warnings to the purchasers and users of products. Id.; § 402A cmt. j.

¶ 27 Strict products liability is not, however, absolute liability. Howes I, 56 Wis.2d at 253, 201 N.W.2d 825. We do not want to hold businesses liable for every injury involving their products. Such an approach would eliminate some useful products from the market that cannot possibly be made completely safe (such as knives, guns, medicine, and even sugar in the case of a diabetic). § 402A cmts. i, k. Hence, all of the strict products liability analytical frameworks—including a risk-utility analysis^[7] and our own focus on consumer expectations—have at least a partial grounding in the necessity of guarding against absolute liability.

¶ 28 Section 402A describes what has been called the "consumer contemplation test" for determining whether a product is unreasonably dangerous. Comment g explains that a manufacturer is strictly liable "only where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him." § 402A cmt. g. Similarly, comment i states that the product "must be dangerous to an extent beyond which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Id. cmt. i. This standard requires manufacturers to anticipate what consumers will expect, and to take safety precautions in accordance with those expectations. Those safety precautions might include giving adequate instructions and warnings (see id. cmts. h and j) and/or implementing reasonably available safety features.

¶ 29 One of the implications of the consumer contemplation test is that consumers can and do contemplate open and obvious dangers, and are not protected when injured by such dangers. See id. cmt. j (warnings are not required "when the danger, or potentiality of danger, is generally known and recognized"); Tanner v. Shoupe, 228 Wis.2d 357, 367, 596 N.W.2d 805 (Ct.App.1999) ("In order for a defective design to render a product unreasonably dangerous, the defect must be hidden from the ordinary consumer, that is, not an open and obvious defect."). Consumers are also not protected if they proceed in the face of a known, though not open and obvious, danger. See § 402A cmt. n ("If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery."). Thus a manufacturer may be able to avoid liability under § 402A by making consumers aware of dangers through warnings or simply by *544 virtue of selling a product with open and obvious dangers.

¶ 30 Section 402A is explicitly neutral as to whether persons other than users or consumers should be able to recover under strict products liability. Id. Caveat (1). Comment o explains:

Thus far the courts ... have not gone beyond allowing recovery to users and consumers.... Casual bystanders, and others who may come in contact with the product, as in the case of employees of the retailer, or a passer-by injured by an exploding bottle, or a pedestrian hit by an automobile, have been denied recovery. There may be no essential reason why such plaintiffs should not be brought within the scope of the protection afforded, other than that they do not have the same reasons for expecting such protection as the consumer who buys a marketed product.

In relatively short order, however, courts around the country did extend protection to injured bystanders. See Peter Zablotsky, Eliminating Proximate Cause As An Element of the Prima Facie Case For Strict Products Liability, 45 Cath. U.L.Rev. 31, n. 79 (1995). This court extended such protection in Howes I, which is discussed below.

¶ 31 No one in the case at bar disputes that bystanders may recover if a product is unreasonably dangerous. The issue in this case is the proper legal standard for determining whether a product is unreasonably dangerous when a bystander is injured.

B. The Proposed Bystander Expectations Test

¶ 32 The Horsts argue that the jury instructions in this case, which asked whether the lawn mower was unreasonably dangerous based on the expectations of the ordinary user or consumer, were incorrect as a matter of law. They maintain that the law in Wisconsin is, or should be, what they call a "bystander contemplation test."

¶ 33 The bystander contemplation test asks exactly the same question as the consumer contemplation test, but replaces the expectations of the user or consumer with the expectations of an ordinary bystander. Accordingly, the Horsts assert that "when a bystander is injured by a product, the question is whether the product was as reasonably safe as an ordinary bystander would contemplate or expect, not whether the user or consumer understood and appreciated the risk." Like the consumer contemplation test, the bystander contemplation test is an objective test and not dependent on an injured party's knowledge.

¶ 34 The bystander contemplation test, according to the Horsts, applies when a bystander is injured and "where a manufacturer designs and sells a product that poses a unique risk of bodily harm to bystanders alone." They submit that the consumer contemplation test is still proper when a bystander is injured and when the danger is present for both the user or consumer and the bystander.

¶ 35 The Horsts further contend that the bystander contemplation test is not only the law, but that it is necessary to provide meaningful protection to bystanders. They argue that bystanders need greater protections than users and consumers because they have less information about the product, and less access to warnings and instructions. They also point to the language in Howes I (which extended protection to bystanders injured by unreasonably dangerous products), stating that "[t]here is no essential difference between the injured user or consumer and the injured bystander." 56 Wis.2d at 255, 201 N.W.2d 825.

*545 C. Prior Wisconsin Case Law

¶ 36 The Horsts argue that the bystander contemplation test is the law in Wisconsin even though it has not been formally announced in any of the cases as such. They point in particular to Howes I, Howes v. Deere, 71 Wis.2d 268, 238 N.W.2d 76 (1976) (hereafter "Howes II"), and Komanekin v. Inland Truck Parts, 819 F.Supp. 802 (E.D.Wis.1993), asserting these cases show that when a bystander is injured, and when the threat of danger is to the bystander alone, the determination of the unreasonableness of the danger is based on an ordinary bystander's expectations, not a user or consumer's expectations.^[8]

¶ 37 Deere, on the other hand, points to the standard jury instructions as well as our prior decisions in Vincer v. Esther Williams All-Aluminum Swimming Pool Co., 69 Wis.2d 326, 230 N.W.2d 794 (1975) and Green to argue that, while bystanders may recover if injured by an unreasonably dangerous product, the consumer contemplation test applies in all strict products liability cases.^[9]

¶ 38 Therefore, we will briefly discuss the principal cases cited by the parties and the arguments offered for each.

1. Howes I^[10]

¶ 39 Two-year-old Richard Howes II^[11] ("Richard") lived with his parents in Lake Geneva, Wisconsin in a two-family dwelling owned by neighbor Naomi Schatzman. Howes I, 56 Wis.2d at 250, 201 N.W.2d 825. Ms. Schatzman delegated lawn care for the dwelling to her adult son, who in turn hired a twelve-year-old boy to mow the lawn. Id. One day, while the twelve-year-old boy was mowing with a Deere riding lawn mower, Richard came into contact with the mower blades and suffered serious injuries, including the loss of his *546 right foot. Id. The Howes sued Deere (among others) for the child's injuries, one claim of which sounded in strict products liability. Id. Because the child was an injured bystander (i.e., not a user or consumer), the main issue in the case was whether an injured bystander can maintain a strict products liability claim against a manufacturer, or whether strict products liability claims may only be advanced by injured users and consumers.

¶ 40 After acknowledging that our prior decision in Dippel only allowed users and consumers to recover, the court chose to extend coverage to bystanders, holding that a manufacturer is strictly liable "when he places a defective article on the market `that causes injury to a human being.'" Id. at 260, 201 N.W.2d 825 (quoting Greenman v. Yuba Power Prods., Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 900 (1963)).

¶ 41 The court extended protection because the rationale supporting protection for users and consumers was equally applicable to bystanders. See Howes I, 56 Wis.2d at 255, 201 N.W.2d 825. The court noted the reasons articulated in Dippel for protecting users and consumers, including the fairness of compensating for injury, the cost and risk-distribution effects of strict products liability, and the deterrent effect on manufacturers. Id. These policy goals support the extension of recovery to bystanders, the court reasoned, because there is "no essential difference between the injured user or consumer and the injured bystander."^[12]Id. However, plaintiff bystanders still needed to prove the product was unreasonably dangerous in order to recover. Id. at 258, 201 N.W.2d 825.

¶ 42 The Horsts claim that Howes I is dispositive, and suggest that we cannot legitimately reconcile a rejection of their proposed bystander contemplation test with this case.

¶ 43 Deere, on the other hand, concedes that Howes I allows an injured bystander to pursue a strict products liability claim, but disputes that it creates or adopts a bystander contemplation test. Deere points out that the case contains no language indicating that the question of whether a product is unreasonably dangerous in bystander cases is evaluated from the perspective of the ordinary bystander. Howes I merely holds, according to Deere, that a manufacturer may be strictly liable in tort when he places a defective article on the market that causes an injury to any human being, including bystanders. The case did not, Deere contends, modify the test for whether the product was defective/unreasonably dangerous.

¶ 44 We acknowledge the broad language Howes I occasionally uses, especially the statement that there is "no essential difference between the injured user or consumer and the injured bystander." Id. at 260, 201 N.W.2d 825. But this statement cannot be pulled out of its issue-sensitive context and used to support an entirely different legal proposition. With respect to who may recover, there truly are no good reasons to limit recovery to injured users and consumers. But with respect to determining whether a product is unreasonably dangerous, there are significant differences (outlined more fully below) between a standard based on the expectations of an ordinary consumer and a standard based on the expectations of an ordinary bystander.

*547 ¶ 45 In short, Howes I did not purport to address a proposition greater than the legal question before that court. Our holding today, rejecting a bystander contemplation test, leaves intact and indeed reaffirms the basic holding of Howes I: Bystanders injured by an unreasonably dangerous product may assert a strict products liability claim against the manufacturer or seller.

2. Howes II^[13]

¶ 46 Following the decision in Howes I, all other defendants except Deere settled out of court. Howes II, 71 Wis.2d at 270, 238 N.W.2d 76. The claims against Deere went to trial. At the end of trial, the circuit court directed the plaintiffs to elect between one of the two theories of liability for submission to the jury—either negligence or strict products liability. Id. at 271, 238 N.W.2d 76. While indicating a preference for strict products liability, the plaintiffs submitted a proposed special verdict covering both theories. Id. The circuit court rejected the dual theory verdict form, and instead submitted a final special verdict question regarding liability, which read as follows: "Was the John Deere mower in question, when it left the possession of the manufacturer, Deere & Company, defective in design so as to be unreasonably dangerous to a bystander?" Id. The jury found that Deere was not liable, and the Howes appealed. Id. at 272, 238 N.W.2d 76. After review, we reversed and remanded for a new trial, holding that plaintiffs were incorrectly forced to choose between alternative theories. Id. at 272-75, 238 N.W.2d 76.

¶ 47 The Horsts find this case especially pertinent because of the language used in the special verdict question, asking whether the product was "defective in design so as to be unreasonably dangerous to a bystander?" This special verdict question was nearly identical to the Horsts' proposed special verdict question that was denied by the trial court.

¶ 48 Deere counters that the court in Howes II did not consider or analyze the propriety of the special verdict question. Rather, the case was reversed because of the trial court's erroneous decision requiring plaintiffs to choose between strict products liability and negligence theories of liability.

¶ 49 In Howes II, the special verdict question was admittedly almost identical to the Horsts' proposed special verdict question. But the special verdict question was not affirmed or intentionally addressed by the court. We also do not know how the trial court instructed the jury to determine whether the product was unreasonably dangerous.^[14] On this point, which is the central question we address today, Howes II is no more helpful or determinative than Howes I.

3. Vincer^[15]

¶ 50 In July of 1970, two-year-old Curt Vincer was visiting his grandparents' house when he fell into the unsupervised swimming pool in their backyard. Vincer, 69 Wis.2d at 327, 230 N.W.2d 794. As a *548 result, Curt was severely brain damaged and became totally disabled. Id. The above-ground swimming pool had a retractable ladder that was allegedly left in the down position. Id. This allowed Curt to climb the ladder and fall into the pool. Id.

¶ 51 Curt (through his guardian ad litem) and his parents sued the swimming pool company and the company that sold and installed the pool. Id. They claimed that the swimming pool's design was defective because there was no self-latching gate preventing entry into the pool. Id. at 331, 230 N.W.2d 794. The legal issue before the court was whether the complaint stated a cause of action against the two defendants. Id. at 329, 230 N.W.2d 794. The court's opinion was primarily focused on the determination of when a product is unreasonably dangerous. This court affirmed that the consumer contemplation test was the proper framework for analyzing design defect cases:

Thus, the test in Wisconsin of whether a product contains an unreasonably dangerous defect depends upon the reasonable expectations of the ordinary consumer concerning the characteristics of this type of product. If the average consumer would reasonably anticipate the dangerous condition of the product and fully appreciate the attendant risk of injury, it would not be unreasonably dangerous and defective. This is an objective test and is not dependent upon the knowledge of the particular injured consumer. Id. at 332, 230 N.W.2d 794.

¶ 52 This court ultimately found that the dangers inherent in a swimming pool were obvious, and that the average consumer would be completely aware of the risk of harm to unsupervised small children when a ladder for the pool is left in a down position. Id. at 333, 230 N.W.2d 794. The court concluded that the pool was as safe as it could reasonably be, that it was not defective as a matter of law, and that the complaint therefore did not state a cause of action. Id. at 331, 230 N.W.2d 794.

¶ 53 The Horsts contend that Vincer does not stand for the proposition that the consumer contemplation test is applicable in all § 402A cases. They argue that Vincer is not a bystander injury case at all, much less one where the product poses a risk of harm to bystanders alone