¶ 87. (concurring). I write separately because this case highlights some of the serious deficiencies with our current approach, the "nearly universally reviled"1 consumer contemplation test, to determining whether a product is unreasonably dangerous in design defect products liability cases. As the majority opinion makes clear, a bystander contemplation test is not the answer. Rather, I believe it is time for this court to adopt the Restatement (Third) of Torts: Products Liability (hereafter "Restatement (Third)") § 2(b) (1998) in design defect cases. My purpose here is not to make a comprehensive case for the adoption of the Restatement (Third).2 My goal instead is to examine some of the numerous reasons I believe this court should reconsider its adherence to the consumer contemplation test, reasons that this case brings to the fore.
*187¶ 88. The Restatement (Third) is simply a more appropriate framework for meeting the needs of Wisconsin consumers, businesses, and all those whose lives are affected by commerce in this state. It is better for consumers and users of products because it holds manufacturers and sellers accountable for all foreseeable injuries that can be prevented with a reasonable alternative design. The Restatement (Third) is better for manufacturers and sellers because it provides clear direction and a predictable standard. It is also better for bystanders because it places them on a level playing field with consumers and users. By focusing the inquiry on foreseeable injuries and thus providing a greater degree of coherence, consistency, and predictability, the Restatement (Third) requires manufacturers to be aware of the dangers unique to bystanders and plan accordingly. The Restatement (Third), then, provides a framework that is fairer to manufacturers and injured persons, especially bystanders, and Wisconsin should adopt it.
I. BACKGROUND
¶ 89. The Restatement (Second) of Torts § 402A (1965) (hereafter "§ 4Q2A"), which Wisconsin adopted in Dippel v. Sciano, 37 Wis. 2d 443, 155 N.W.2d 55 (1967), sets forth the basic parameters of a strict liability claim.3 Comment i outlines the test for determining whether a product is unreasonably dangerous, providing that the product "must be dangerous to an extent beyond which would be contemplated by the ordinary *188consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." § 402A cmt. i. This test is called the consumer contemplation or consumer expectations test.
¶ 90. Section 402A was not drafted to address the design defect line of cases. See Introduction to Restatement (Third). It was instead written to address what came to be classified as manufacturing defect cases. See Douglas A. Kysar, The Expectations of Consumers, 103 Colum. L. Rev. 1700, 1713-14 (2003). The consumer contemplation test in § 402A was therefore formulated to respond to manufacturing defect cases — where, despite quality control mechanisms in place, a product was not made or did not function according to its design specifications.
¶ 91. It was not until after § 402A was published in 1965 that litigation over defects in design was addressed by experts and commentators. See Richard L. Cupp, Jr. & Danielle Polage, The Rhetoric of Strict Products Liability Versus Negligence: An Empirical Analysis, 77 N.Y.U. L. Rev. 874, 890-91 (2002) ("[Clases involving conscious design decisions did not become common until the early 1970s."). Courts soon realized that the consumer contemplation test, which followed *189naturally from manufacturing defect cases, did not work as well for design defect cases. Id. at 891 ("[M]any courts quickly realized that using a consumer expectations test in design defect cases presents implications significantly different from those involved in applying the test to manufacturing-defect cases."); Restatement (Third) § 1 cmt. a.
¶ 92. Hence, courts began to move away from the consumer contemplation test in design defect cases and adopt some form of a risk-utility test. The Restatement (Third) § 2(b), published in 1998, identified and captured this shift in approach. It provides that a product is defective in design when the "foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design ... and the omission of the alternative design renders the product not reasonably safe." Assessing whether a product is reasonably safe and whether a reasonable alternative design should have been adopted requires a "risk-utility" test that balances the costs and benefits of various design alternatives.4 Id. at cmt. d.
II. A NEW FRAMEWORK IS NEEDED
¶ 93. The consumer contemplation test as an independent test in design defect cases has been roundly, consistently, and justifiably criticized by commentators. Restatement (Third) § 2(b) cmt. d. One scholar, Douglas Kysar, calls the consumer contemplation test "a doctrine nearly universally reviled but stubbornly and *190inexplicably persistent." Kysar, supra, at 1701. By the 1980s, he explains, "a consensus view among products liability scholars emerged that the consumer expectations test was both indefensible in theory and unworkable in practice." Id. Citing our decision in Green v. Smith & Nephew AHP, Inc.5 as an example, Kysar calls judicial allegiance to the consumer contemplation test "puzzling in light of the aforementioned consensus view among commentators that the consumer expectations test is in one way or another harmful to plaintiffs, defendants, and the judicial process itself." Kysar, supra, at 1703.
¶ 94. Wisconsin, however, has stubbornly stuck with the anachronistic consumer contemplation test despite voluminous ongoing and unanswered criticism. This adherence is akin to insistence upon a horse-and-buggy approach in a space-age era. The two reporters for the American Law Institute who drafted the Restatement (Third) have called Wisconsin "the lone star state" and a "rogue" and "renegade" jurisdiction that, within the context of products liability cases, marches to its "own, sometimes quite peculiar, drummer." James A. Henderson, Jr. & Aaron D. Twerski, A Fictional Tale of Unintended Consequences: A Response to Professor Wertheimer, 70 Brook. L. Rev. 939, 940-41, 946 (2005).6
*191¶ 95. One of the major criticisms of the consumer contemplation test is that it is an exceedingly vague standard for design defect cases.7 See W Page Keeton, Prosser & Keeton on Torts § 99, 699 (5th ed. 1984) (discussing how the consumer contemplation test "can be utilized to explain most any result that a court or jury chooses to reach"). As one treatise explains:
A[n]... especially problematic aspect of the consumer contemplation test lies in the vagueness of consumer expectations in many contexts. Particularly in considering the design adequacy of a complex product — such as an automobile, a pharmaceutical drug, or other chemical product — consumers often have no meaningful idea how safely the product really ought to perform in various situations. How can an ordinary consumer possibly know the extent of crash protection or injury fairly to expect when an automobile crashes into a tree at 10, 20, or even 40 miles per hour? Lurking at the very heart of the consumer expectations test, the vagueness problem undermines the test in the most complex cases where a rehable standard of liability is needed most.
David G. Owen, Owen's Hornbook on Products Liability § 5.6 (2d ed. 2008). When a standard is vague, it is less useful, and less legitimate as a rule of law because *192citizens cannot anticipate the lawfulness of their actions and adjust their behavior accordingly. See majority op., ¶¶ 71-73; see also Kysar, supra, at 1715 (discussing the widely held view that "consumer expectations provide only the most meager and insufficient guidance to factfinders charged with the difficult task of assessing the adequacy of a product design," making the test" 'so vague as to be lawless'") (quoting James A. Henderson, Jr. & Aaron D. Twerski, Achieving Consensus on Defective Product Design, 83 Cornell L. Rev. 867, 882 (1998)); see also id. at n.60 (citing additional authorities who criticize the vague nature of the consumer contemplation test).
¶ 96. The Restatement (Third), however, offers coherence, consistency, and predictability because it is based on a more objective standard. Manufacturers are aware of alternative designs that may be available for their products, as well as the costs and benefits of those designs. A jury's determination, on the other hand, of an "ordinary" consumer's expectations about design and safety features is guesswork, with potentially disastrous consequences for the manufacturer if wrong. The more predictable standards in the Restatement (Third) will promote the efficient implementation of safety precautions better than the less predictable consumer contemplation test because the risks are, by definition, foreseeable and reasonably preventable.
¶ 97. Another problem with the consumer contemplation test is the practical reality that consumer/user expectations might be determined by a jury to be either unrealistically and unreasonably high or unacceptably low when compared with the optimum level of safety.
¶ 98. Consumer expectations may be unrealistically and unreasonably high in that a manufacturer might be held liable for injuries it did not or should not *193have reasonably foreseen, or when alternative designs were not reasonably available — for instance, expectations that a knife should not be able to cut off fingers or a car should not be able to rollover. This is the danger of absolute liability — holding manufacturers liable for all injuries resulting from their products. No court openly desires such a system. The Restatement (Third) helps avoid unreasonably high expectations with its negligence-style evaluation of the costs and benefits, imposing liability for only reasonably foreseeable injuries or injured persons. See Restatement (Third) 2(b) cmt. a; Owen's, supra, § 8.8.
¶ 99. Alternatively, consumer expectations may be unacceptably low. One example is the open and obvious danger doctrine, which precludes recovery when a product is manifestly dangerous. Because consumers and users know of the danger, the level of danger is in accord with their expectations, and they are unprotected. But this result may neither be fair nor adequate to compensate injured persons where an open and obvious danger can be eliminated with the implementation of a simple, relatively low-cost safety feature. Owen's, supra, § 8.3 ("[A] dire consequence of the consumer expectations test... is that it effectively rewards manufacturers for failing to adopt cost-effective measures to remedy obviously unnecessary dangers to human life and limb."). The Restatement (Third) rejects the open and obvious danger doctrine, providing greater protection to injured persons and greater accountability for product manufacturers. See Restatement (Third) § 2(b) cmt. d. ("The fact that a danger is open and obvious is relevant to the issue of defectiveness, but does not necessarily preclude a plaintiff from establishing that a reasonable alter*194native design should have been adopted that would have reduced or prevented injury to the plaintiff.").
¶ 100. The Horsts argue that our rejection of a bystander contemplation test leaves bystanders unprotected. While this contention is plainly wrong (see majority op., ¶ 77), the Horsts are correct that the consumer contemplation test leaves bystanders less protected than they arguably should be. The facts of this case — where a bystander is injured by an allegedly defectively designed and therefore unreasonably dangerous product — serve to underscore and highlight the deficiencies in our current approach.
¶ 101. Bystanders face several inequities when compared with users and consumers under the current system. First, bystanders are less protected when a product poses a greater danger to a bystander than to the user or consumer. The instant case is a perfect example; a riding lawn mower is clearly more dangerous to bystanders than to the person driving the tractor. Second, bystanders do not have access to the instructions and warnings that assist and protect users and consumers. Third, bystanders are, to some extent, dependent for their safety on the care exercised by users of dangerous products. Finally, bystanders may not be aware of open and obvious dangers that a user or consumer perceives. In all these circumstances, bystanders are stuck with less protection and less control over their own safety, and, under the current system, with less access to compensation in the event of injury.
¶ 102. The Restatement (Third) levels this playing field by focusing the inquiry on the product itself, not the status of the injured person. The Restatement (Third) requires manufacturers to implement reasonably available safety features with regard to all fore*195seeable injured persons. This analytical framework provides more protection for injured persons than our current approach. This is especially true for bystanders,8 many injuries to whom are reasonably foreseeable, thereby putting manufacturers on notice.
¶ 103. If the Restatement (Third) were the law in Wisconsin in this case, the Horsts would have had to prove that a reasonable alternative design was available at the time John Deere sold the 1999 LT160 riding lawn mower. Restatement (Third) § 2(b) cmt. a. The jury would have had to balance the costs and benefits and consider whether the risk of harm to Jonathan was foreseeable and could have been reduced or avoided if Deere had adopted a reasonably available alternative design to the RIO. The status of the injured person would have played no part in this analysis.
¶ 104. To conclude, Wisconsin's current approach in design defect cases is beset with serious deficiencies that the Restatement (Third) substantially rectifies. The failure to adequately protect bystanders is one of those deficiencies that deserves redress. In my opinion, the Restatement (Third) § 2(b) is a more coherent, consistent, and fair approach to *196products liability design defect cases. I would adopt it, and urge my colleagues to do the same.9
¶ 105. For the foregoing reasons I concur.
*197¶ 106. I am authorized to state that Justice DAVID T. PROSSER and Justice PATIENCE D. ROGGENSACK join this concurrence.Douglas A. Kysar, The Expectations of Consumers, 103 Colum. L. Rev. 1700, 1701 (2003).
I joined Justice Prosser's excellent concurrence in Godoy v. DuPont, 2009 WI 78, _ Wis. 2d _, 768 N.W.2d 674, which ably makes a fuller case for the Restatement (Third) of Torts: Products Liability ("Restatement (Third)") § 2(b) (1998).
The Restatement (Second) of Torts § 402A (1965) (hereafter "§ 402A") provides as follows:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is *188subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
Factors to be considered include the nature and strength of consumer expectations, the degree of the foreseeable risks of harm, the instructions and warnings accompanying the product, and the advantages and disadvantages of the original product and alternative design. Restatement (Third) § 2(b) cmt. f.
Green v. Smith & Nephew AHP, Inc., 2001 WI 109, 245 Wis. 2d 772, 629 N.W.2d 727.
See also Victor E. Schwartz & Rochelle M. Tedesco, The Re-Emergence of "Super Strict" Liability: Slaying the Dragon Again, 71 U. Cin. L. Rev. 917, 918 (2003):
Green v. Smith & Nephew AHP, Inc., 2001 WI 109, ¶ 122, 245 Wis. 2d 772, 629 N.W.2d 727, takes the development of product liability in Wisconsin in an aberrant direction. The Wisconsin Supreme Court advanced in that direction by clinging to an almost universally criticized version of the "consumer expectations" test. *191Both liberal and conservative courts have recognized that the consumer expectations test used by the Wisconsin Court is not an appropriate standard for judging design defects. In addition to clinging to the consumer expectation test, the Wisconsin Supreme Court refused to adopt the more modern and coherent standard for liability set forth in the Restatement (Third) of Torts: Products Liability. Finally, after adhering to the consumer expectations test and refusing to adopt the Restatement (Third) of Torts: Products Liability, the Wisconsin Supreme Court took an additional step and joined the small, highly criticized minority of state courts that have imposed super strict liability in products liability cases.
(Emphasis added.)
This criticism holds true in even greater measure for a bystander contemplation test as well. See majority op., ¶¶ 71-73.
The Horsts recognize this too, asserting the following in a footnote in their reply brief:
If the Court were to conclude that a "bystander contemplation test" is too onerous on manufacturers, the Horsts submit that the risk/utility test adopted in Restatement (Third) of Torts, § 2, where the plaintiff must establish the viability of an alternative design, would be appropriate in bystander cases, even though inappropriate in consumer cases.
I have difficulty understanding why we have a "flimsy basis" (as Justice Crooks' concurrence asserts) for addressing an issue the petitioners asked us to address if we found against them on their chief argument.
The dissent makes several bald, unsupported, and blatantly incorrect assertions in chastising this concurrence. First, the dissent alleges that this concurrence raises the adoption of the Restatement (Third) sua sponte, and that neither party called upon the court to do so. Dissent, ¶¶ 129-130. The dissent is wrong. As noted above, the Horsts did ask this court to adopt the Restatement (Third) for bystander claims in the event that we rejected their proposed bystander contemplation test, which we have.
Second, the dissent claims that this concurrence reflects a fundamental misunderstanding of the role of appellate courts. Id., ¶ 132. This baseless argument itself reflects a misunderstanding of the role of appellate courts. As the dissent well knows, strict products liability law in Wisconsin is, at least at present, a function of the common law. Unless and until the legislature intervenes, it is incumbent upon this court to decide our cases on the basis of sound legal principles. Strict products liability itself and our adoption of § 402A 42 years ago were a departure from past precedent because this court determined that the past framework no longer made sense. This concurrence is precisely within that common law tradition by responding to the plea by the Horsts, and pointing out that the facts of this case in particular illuminate the problems with our current approach, and call for a new, sounder framework.
Third, the dissent clouds the issue by citing a lineage of cases that would purportedly be over ruled or modified by adoption of the Restatement (Third) § 2(b) in design defect cases. The dissent goes too far. Although § 2(b) sets forth an approach that is analytically distinct from the consumer contemplation test, there is no reason, beyond the dissent's bald assertions, to believe that adoption of § 2(b) would in any way affect, much less over rule, the results reached in those cases. See also Godoy v. E.I. du Pont de Nemours and Co., 2009 WI 78, ¶ 6 n.1, _ Wis. 2d _, 768 N.W.2d 674 (Prosser, J., concurring).
*197Finally, the dissent cautions a wait-until-argued approach to this issue. Id., ¶ 133. However, this case brings the issues front-and-center, and exposes gaping holes in our design defect strict products liability jurisprudence. To fail to address the issues staring us in the face, as the dissent urges, would be to abdicate our role. That the dissent is unsure of its own view on these matters need not hamper the court's obligation to ensure our strict products liability law rests on a solid and workable and fair foundation.