¶ 107. 0dissenting). I agree with the majority that bystanders can recover in strict liability for a product that is unreasonably dangerous to bystanders, and that the test for products liability in Wisconsin measures the expectations of the ordinary consumer.
¶ 108. I write separately, however, because an improperly worded special verdict question asked the wrong question and the jury instruction which accompanied it misstated the law.
¶ 109. The majority masks the problem by concluding that the special verdict question and jury instruction are not as clear as it would prefer but that any error is harmless. Majority op., ¶ 78 n.23.1 instead call it what it is when a jury is not asked to answer the central question in the case and is given an erroneous instruction: prejudicial error.
¶ 110. Additionally, I write separately to address Justice Gableman's concurrence, which sua sponte advocates for a sea change in the law of products liability, would discard over forty years of precedent, and would overrule scores of cases.
*198¶ 111. For the reasons set forth below, I respectfully dissent.
I
¶ 112. The majority aptly sets forth the facts and relevant procedural history. Two-year-old Jonathan was injured when his father, Michael, was mowing the lawn using a John Deere riding lawn mower. The mower was equipped with a safety feature that stops both the engine and the blades when an operator begins to travel in reverse with the blades engaged. However, the lawn mower is designed with an override of this safety feature.
¶ 113. Michael decided to mow in reverse along the rear of the house and disengaged the safety feature. Unknown to him, Jonathan moved behind the mower, out of his father's line of sight. As the mower proceeded in reverse, it struck the two-year-old Jonathan, causing both of his feet to be severed.
¶ 114. The John Deere operating manual warns of danger to young children when the safety feature is disengaged and the mower is operated in reverse. The warnings provide:
• Before backing up, stop mower blades or attachments and look down and behind the machine carefully, especially for children.
• CAUTION: Avoid injury! Rotating blades are dangerous. Children or bystanders may be injured by runover and rotating blades. Before backing up, carefully check the area around the machine.
¶ 115. The Horsts filed a lawsuit against Deere & Company alleging that a mower which operates in reverse is unreasonably dangerous, and that the mower *199should not have been designed with a device that can override the safety feature. At trial, the Horsts requested that the standard jury instruction, Wis JI— Civil 3260, be modified consistent with the law to reflect the facts of this case — that the safety override feature presented a danger to Jonathan, a bystander. They argued that the jury should not be asked whether the design presented a danger to the person using the machine. It was obvious that because Michael was riding on the mower, it presented no back-up danger to him. Rather, as the warnings noted, the danger presented was to the young child behind the mower.
¶ 116. The circuit court declined the Horsts' request, and instead asked the jury:
Question No. 1: Answer this question: 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?
(Emphasis added.) The jury instructions explained:
With respect to special verdict Questions #1 and #2, you are instructed as follows:
A manufacturer of a product who places on the market a defective product which is unreasonably dangerous to the ordinary user or consumer, and which is expected and does reach the consumer without substantial change in the condition in which it is sold, is regarded by law as responsible for harm caused by the product ....
A product is said to be defective when it is in a condition not contemplated by the ordinary user or consumer which is unreasonably dangerous to the ordinary user *200or consumer, and the defect arose out of design, manufacture, or inspection while the article was in the control of the manufacturer. A defective product is unreasonably dangerous to the ordinary user or consumer when it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer possessing the knowledge of the product's characteristics which were common to the community. A product is not defective if it is safe for normal use.
A manufacturer is not under a duty to manufacture a product which is absolutely free from all possible harm to every individual. It is the duty of the manufacturer not to place upon the market a defective product which is unreasonably dangerous to the ordinary consumer. 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.
Question One (1) on the verdict form asks:
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 I consumer?
Before you can answer question One "yes," you must be satisfied that: (1) the product was in a defective condition; (2) the defective condition made the product unreasonably dangerous to people; (3) the defective condition of the product existed when the product was under the control of the manufacturer; and (4) the product reached the consumer without substantial change in the condition in which it was sold.
(Emphasis added.)
¶ 117. The majority correctly states that since 1972, the law of Wisconsin has been that a manufac*201turer is strictly liable when it places a defective product on the market "that causes injury to a human being." Majority op., ¶ 40 (quoting Howes v. Hansen (Howes I), 56 Wis. 2d 247, 260, 201 N.W.2d 825 (1972)). The rationale for extending protection to bystanders is the same as the rationale for protecting consumers and users. Id., ¶ 41. It concludes that therefore, "there truly are no good reasons to limit recovery to injured users and consumers." Id., ¶ 44.
¶ 118. Accordingly, the majority determines that the special verdict question and jury instruction were not as clear as it would prefer and that the circuit court should not have limited the inquiry about whether the lawn mower was unreasonably dangerous to only "a prospective user/consumer." Id., ¶ 78 n.23. Instead, the majority recognizes that the special verdict question should allow for the inquiry to include danger to a bystander. Id.
¶ 119. The majority attempts to salvage the error here by pointing to the following explanation buried in the special verdict: In order to determine that the product was defective, the jury must first find that "the defective condition made the product unreasonably dangerous to people." Id.; see also id. ¶ 13, n.3. Based on this sentence, the majority therefore concludes that any "inconsistency" between the incorrect question (whether the product is dangerous to a "user/consumer") and the correct question (whether the product is dangerous to "people") is "harmless." Id., ¶ 78 n.23.
¶ 120. As the majority acknowledges, the special verdict question was wrong. It failed to ask the correct question. The question is not whether the product posed a danger to the father riding on the lawn mower, but rather whether it posed a danger to Jonathan, the young child behind it.
*202¶ 121. The problem with the special verdict question was exacerbated by the jury instruction. Five times, the instruction indicated that the product must be unusually or unreasonably "dangerous to the ordinary user or consumer." See infra, ¶ 116.
¶ 122. Further, in an attempt to cure the defect in the instruction, the circuit court added the following sentence: "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." (Emphasis added.) With this sentence, the court positively directed the jury to ignore any features that posed increased or unique risks to bystanders. As such, the instructions and special verdict question do not conform to Wisconsin law.
¶ 123. "The purpose of a jury instruction is to fully and fairly inform the jury of a rule or principle of law applicable to a particular case." Nommensen v. Am. Continental Ins. Co., 2001 WI 112, ¶ 36, 246 Wis. 2d 132, 629 N.W.2d 301. The instruction should not only state the law accurately, but it should also "explain what the law means to persons who usually do not possess law degrees." Id. (quoting Nowatske v. Osterloh, 198 Wis. 2d 419, 428, 543 N.W.2d 265 (1996)). "[A]n instruction that is an incorrect or misleading statement of the law is erroneous." Nowatske, 198 Wis. 2d at 428.
¶ 124. The instruction did not fully and fairly inform the jury of the applicable law. Instead, it created the clear impression that a bystander could only recover if he was injured by a product that was also unreasonably dangerous to a user or consumer. However, in Howes I, the court held that "there is no essential difference between the injured user or consumer and the injured bystander," and that an injured *203bystander could recover in strict liability for a product that is unreasonably dangerous to bystanders. 56 Wis. 2d at 255. Further, in Komanekin v. Inland Truck Parts, the court recognized that "a product not unreasonably dangerous to the ordinary user or consumer might well be unreasonably dangerous to the ordinary bystander." 819 F. Supp. 802, 809 (E.D. Wis. 1993) (applying Wisconsin law).
¶ 125. Instead of accurately describing Wisconsin law, the instruction directed the jury to answer the wrong question. The jury was directed to determine whether the lawn mower was unreasonably dangerous to users and consumers, yet the plaintiff made no argument that the mower was unreasonably dangerous to users and consumers.
¶ 126. Here, the majority appears to conclude that an otherwise defective instruction and special verdict question is cured because, after the jury was repeatedly told that defectiveness is determined by danger to "an ordinary user or consumer," the special verdict contained the following explanation:
Before you can answer question One "yes," you must be satisfied that... the defective condition made the product unreasonably dangerous to people[.]"
¶ 127. An error is harmless if the beneficiary of the error proves "beyond a reasonable doubt that the error did not contribute to the verdict obtained." State v. Hale, 2005 WI 17, ¶ 60, 277 Wis. 2d 593, 691 N.W.2d 637 (quoting Chapman v. California, 386 U.S. 18 (1967)).
¶ 128. Based on the evidence presented at trial, the jury was required to answer "no" to the special verdict question because there was no evidence presented that the lawn mower was unreasonably danger*204ous to Michael, its user. Nevertheless, there was evidence from which a properly instructed jury could have determined that the mower was unreasonably dangerous to Jonathan. Because Deere & Company has not demonstrated that the errors did not contribute to the verdict obtained, I conclude that they were prejudicial.
II
¶ 129. This is the second case this term where members of this court, sua sponte and not responding to the parties' arguments, have advocated for the adoption of the Restatement (Third) of Torts: Products Liability § 2(b). See Justice Gableman's concurrence; see also Godoy v. E.I. du Pont de Nemours, 2009 WI 78, _ Wis. 2d _, 768 N.W.2d 674 (Prosser, J., concurring) (released today). This would be a sea change in Wisconsin products liability law.
¶ 130. The Restatement (Second) of Torts § 402A and Dippel v. Sciano, 37 Wis. 2d 443, 155 N.W.2d 551 (1967) are established law in Wisconsin. Neither the parties in this case1 nor the parties in Godoy have called upon the court to deviate from over 40 years of case law and adopt the Restatement (Third) § 2(b).
*205¶ 131. In advocating for this policy change, the concurrence in this case and the concurrence in Godoy fundamentally misunderstand the role of an appellate court. Instead, they appear to act like legislators, advancing a policy initiative which they favor. Typically, it is the role of the legislature to identify and enact policy initiatives. Appellate courts, on the other hand, play a more restrained role.
¶ 132. Courts decide cases and controversies. A court depends upon the parties to identify and raise issues and to advocate for a position. After considering the parties' briefs and arguments, the court renders a decision.
¶ 133. Tossing stare decisis to the wind and without the benefit of briefing or argument by the parties, the concurrence would overrule or otherwise modify scores of cases because they set forth a test for products liability that would no longer be good law.2 Of course *206the court can and sometimes should overrule prior cases. See Justice Gableman's concurrence, ¶ 104 n.9. *207That is not the question here. Rather, the question is whether the court here should overrule or modify these *208cases, creating a sea change in the law, without the benefit of briefing or arguments by the parties.
¶ 134. I am uncertain whether the Restatement (Third) should be adopted. What I am certain of, however, is that rather than pushing a predetermined agenda, I would wait until the issue is raised by a party, and briefed and argued before this court.
*209¶ 135. For a more thorough discussion of my concerns regarding the sua sponte discussion of the Restatement (Third), see my concurrence in Godoy, _ Wis. 2d _.
¶ 136. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.Justice Gableman's concurrence asserts that the Horsts advocated for the adoption of the Restatement (Third) in a footnote in their reply brief. For a discussion of the "flimsy basis" upon which the concurrence reaches out to address the Restatement (Third), see Justice Crooks' concurrence, ¶ 84.
Any doubt as to whether the Horsts are advocating adoption of the Restatement (Third) is erased by a review of the oral arguments. No attorney uttered the words "Restatement (Third)" at oral argument. In fact, the Horsts' attorney specifically disclaimed any reliance on a risk-utility test, which is one of the principles underlying the Restatement (Third). He stated unequivocally: "I didn't argue for the adoption of a risk-utility test[.]" See Wisconsin Court System, Supreme Court Oral *205Arguments, http://wicourts.gov/opmions/soralarguments.bitm (search "Party name" for "Horst"; then follow "Playback" link) at 26:35.
See, for example:
• Tatera v. FMC Corp., 2009 WI App 80, _ Wis. 2d _, 768 N.W.2d 198 (publication decision pending);
• Haase v. Badger Mining Corp., 2004 WI 97, 274 Wis. 2d 143, 682 N.W.2d 389;
• Green v. Smith & Nephew AHP, Inc., 2001 WI 109, 245 Wis. 2d 772, 629 N.W.2d 727;
• Insolia v. Philip Morris, Inc., 216 F.3d 596 (7th Cir. 2000) (applying Wisconsin law);
• Morden v. Continental AG, 2000 WI 51, 235 Wis. 2d 325, 611 N.W.2d 659;
• Sharp ex rel. Gordon v. Case Corp., 227 Wis. 2d 1, 595 N.W.2d 380 (1999);
*206• Bittner v. American Honda Motor Co., Inc., 194 Wis. 2d 122, 533 N.W.2d 476 (1995);
• Westphal v. E.I. du Pont de Nemours & Co., Inc., 192 Wis. 2d 347, 531 N.W.2d 386 (Ct. App. 1995);
• Sedbrook v. Zimmerman Design Group, Ltd., 190 Wis. 2d 14, 526 N.W.2d 758 (Ct. App. 1994);
• Estate of Cook v. Gran-Aire, Inc., 182 Wis. 2d 330, 513 N.W.2d 652 (Ct. App. 1994);
• Rogers v. AAA Wire Prods., Inc., 182 Wis. 2d 263, 513 N.W.2d 643 (Ct. App. 1994);
• Beacon Bowl, Inc. v. Wisconsin Elec. Power Co., 176 Wis. 2d 740, 501 N.W.2d 788 (1993);
• Glassey v. Continental Ins. Co., 176 Wis. 2d 587, 500 N.W.2d 295 (1993);
• Northridge Co. v. W.R. Grace and Co., 162 Wis. 2d 918, 471 N.W.2d 179 (1991);
• Kolpin v. Pioneer Power & Light Co., Inc., 162 Wis. 2d 1, 469 N.W.2d 595 (1991);
• Nelson v. Nelson Hardware, Inc., 160 Wis. 2d 689, 467 N.W.2d 518 (1991);
• Rolph v. EBI Cos., 159 Wis. 2d 518, 464 N.W.2d 667 (1991);
• Kemp v. Miller, 154 Wis. 2d 538, 453 N.W.2d 872 (1990);
• Estate of Schilling v. Blount, Inc., 152 Wis. 2d 608, 449 N.W.2d 56 (Ct. App. 1989);
• Tony Spychalla Farms, Inc. v. Hopkins Agr. Chemical Co., 151 Wis. 2d 431, 444 N.W.2d 743 (Ct. App. 1989);
• St. Clare Hosp. of Monroe v. Schmidt, Garden, Erickson, Inc., 148 Wis. 2d 750, 437 N.W.2d 228 (Ct. App. 1989);
• O'Brien v. Medtronic, Inc., 149 Wis. 2d 615, 439 N.W.2d 151 (Ct. App. 1989);
• Mulhern v. Outboard Marine Corp., 146 Wis. 2d 604, 432 N.W.2d 130 (Ct. App. 1988);
*207• Griffin v. Miller, No. 1986AP1562, unpublished slip op. (Wis. Ct. App. Oct. 1, 1987);
• Van's Realty Const. of Appleton, Inc. v. Blount Heating and Air Conditioning, Inc., No. 1985AP1812, unpublished slip op. (Wis. Ct. App. Oct. 7, 1986);
• Clarke v. Flad & Associates, 1984AP780, unpublished slip op. (Wis. Ct. App. Jan. 27, 1988);
• Gonzalez v. City of Franklin, 128 Wis. 2d 485, 383 N.W.2d 907 (Ct. App. 1986);
• Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 121 Wis. 2d 338, 360 N.W.2d 2 (1984);
• Collins v. Eli Lilly Co., 116 Wis. 2d 166, 342 N.W.2d 37 (1984);
• Burrows v. Follett and Leach, Inc., 115 Wis. 2d 272, 340 N.W.2d 485 (1983);
• Giese v. Montgomery Ward, Inc., 111 Wis. 2d 392, 331 N.W.2d 585 (1983);
• Krueger v. Tappan Co., 104 Wis. 2d 199, 311 N.W.2d 219 (Ct. App. 1981);
• Wangen v. Ford Motor Corp., 97 Wis. 2d 260, 294 N.W.2d 437 (1980);
• Shawver v. Roberts Corp., 90 Wis. 2d 672, 280 N.W.2d 226 (1979);
• Priske v. General Motors Corp., 89 Wis. 2d 642, 279 N.W.2d 227 (1979);
• Black v. General Elec. Co., 89 Wis. 2d 195, 278 N.W.2d 224 (Ct. App. 1979);
• Ransome v. Wisconsin Elec. Power Co., 87 Wis. 2d 605, 275 N.W.2d 641 (1979);
• Kozlowski v. John E. Smith's Sons Co., 87 Wis. 2d 882, 275 N.W.2d 915 (1979);
• Keller v. Welles Dep't. Store of Racine, 88 Wis. 2d 24, 276 N.W.2d 319 (Ct. App. 1979);
• Austin v. Ford Motor Co., 86 Wis. 2d 628, 273 N.W.2d 233 (1979);
*208• Fonder v. AAA Mobile Homes, Inc., 80 Wis. 2d 3, 257 N.W.2d 841 (1977);
• Heldt v. Nicholson Mfg. Co., 72 Wis. 2d 110, 240 N.W.2d 154 (1976);
• Howes v. Deere Co., 71 Wis. 2d 268, 238 N.W.2d 76 1976);
• Barter v. General Motors Corp., 70 Wis. 2d 796, 235 N.W.2d 523 (1975);
• Greiten v. LaDow, 70 Wis. 2d 589, 235 N.W.2d 677 (1975);
• Vincer v. Esther Williams All-Aluminum Swimming Pool Co., 69 Wis. 2d 326, 230 N.W.2d 794 (1975);
• Schuh v. Fox River Tractor Co., 63 Wis. 2d 728, 218 N.W.2d 279 (1974);
• Jagmin v. Simonds Abrasive Co., 61 Wis. 2d 60, 211 N.W.2d 810 (1973);
• City of Franklin v. Badger Ford Truck Sales, Inc., 58 Wis. 2d 641, 207 N.W.2d 866 (1973);
• Air Prods. & Chemicals, Inc. v. Fairbanks Morse, Inc., 58 Wis. 2d 193, 206 N.W.2d 414 (1973);
• Gies v. Nissen Corp., 57 Wis. 2d 371, 204 N.W.2d 519 (1973);
• Howes v. Hansen, 56 Wis. 2d 247, 201 N.W.2d 825 (1972);
• Schnabl v. Ford Motor Co., 54 Wis. 2d 345, 195 N.W.2d 602 (1972);
• Netzel v. State Sand & Gravel Co., 51 Wis. 2d 1, 186 N.W.2d 258 (1971).
• Dippel v. Sciano, 37 Wis. 2d 443, 155 N.W.2d 55 (1967) (adopting the Restatement (Second) § 402A and strict products liability).