Products liability by Tiffany Funk: Tests Employed by Courts

Cronin v. J.B.E. Olson Corp., 104 Cal.Rptr. 433 (Cal.1972)

A plaintiff satisfies his burden of proof under Greenman, in both a "manufacturing defect" and "design defect" when he proves the existence of a "defect" and that such defect was a proximate cause of his injuries 

Barker v. Lull Engineering Co., 143 Cal.Rptr. 225 (Cal.1978)

Court adopted a two prong test:

1.A product may be found defective in design if the plaintiff establishes that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or

2.A product may alternatively be found defective in design if the plaintiff demonstrates that the product's design proximately caused his injury and the defendant fails to establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design

Court concluded that one the plaintiff makes a prima facie showing that the injury was proximately caused by the product's design, the burden should appropriately shift to the defendant to prove, in light of relevant factors, that the product is not defective

Court states one can still satisfy consumer expectations, but fail risk-utility and vice versa because it is an "or" test. A product may be found defective in design, even if it satisfied ordinary consumer expectations, if through hindsight the jury determines the risk of danger inherent in the challenged design outweighs the benefits of such design

Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199 (Conn.1997)

Court employs a modified consumer expectation test, which provides the jury with the product's risk and utility and then inquires whether a reasonable consumer would consider the product unreasonable dangerous.

When to use consumer expectations? Court is not requiring risk/utility in all cases, "there are certain kinds of accidents- even where fairly complex machinery is involved- that is so bizarre the average juror, upon hearing the particulars, might reasonably think: 'whatever the user may have expected from that contraption, it certainly wasn't that.'" The ordinary consumer expectation test is appropriate when the everyday experience of the particular product's users permits the inference that the product did not meet minimum safety expectations. Essentially, employing the consumer expectation test is appropriate in an area where a potential expert is not really needed.

When to use risk/utility analysis? Court concludes the jury should engage in the risk-utility balancing required by the modified consumer expectation test when ordinary consumer expectations of safety are not fairly implicated, an area where experts are called in to testify. In such circumstances, the jury should be instructed solely on the modified consumer expectations test 

A product is defective in design or formulation when it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.

Refer to previous discussions regarding the consumer expectations test found in RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 402A (2012). 

Risk/utility or cost/benefit analysis determines whether a design risk is "unreasonable" by balancing the probability and seriousness of harm against the cost of taking precautions. Factors to be considered include: availability of alternative designs; the cost and feasibility of adopting alternative designs; and the frequency or infrequency of injury resulting from the design. The "unreasonable" question, then is, whether given the risks and benefits of and possible alternatives to the product, we as a society will live with it in its existing state [so the utility outweighs the risk] or will require an altered, less dangerous form. Under the risk/utility analysis, if you come up with an alternative design or plan to remedy the defect, this defect MUST NOT add to or create additional defect. 

In the Learned Hand Formula, previously addressed, simply substitute negligence for defect, and a product is "defective" if the costs of improving its safety are less than the safety benefits resulting from the improvement. Thus, under B <P X L = D, a product is "defective" if the costs of improving its safety are less than the safety benefits resulting from the improvement. This formula is used to determine whether there is a defect [not negligence] and thus strict liability. 

**This is a summary of  information contained in the book found below** 

DAVID G. OWEN, ET AL., PRODUCTS LIABILITY AND SAFETY CASES AND MATERIALS (Robert C. Clark ed., Foundation Press 6th ed. 2010) (1980).

If a product is unreasonably dangerous, it is not relevant that the supplier neither knew nor could have known or ought to have known in the exercise of ordinary care that the unreasonable risk actually existed. It is enough that had he known of the risk and dangers he would have not marketed the product at all or he would have done so differently. The Wade-Keeton test does away with foreseeability (called "hindsight test").

**This is a summary of  information contained in the book found below** 

DAVID G. OWEN, ET AL., PRODUCTS LIABILITY AND SAFETY CASES AND MATERIALS (Robert C. Clark ed., Foundation Press 6th ed. 2010) (1980).

The Wade Factors Test is employed in a situation involving goods where difficulty of proof is apparent. In applying the risk/utility or cost/benefit approach to particular products, many courts have relied upon the Wade Factors:

1. The usefulness and desirability of the product- its utility to the user and to the public as a whole
2. The safety aspects of the product- the likelihood that it will cause injury, and the probable seriousness of the injury [this factor recognizes and reflects on the risk side of the calculus] 
3. The availability of a substitute product which would meet the same need and not be as unsafe [this factor is probably most useful for products whose design cannot be changed, such as with cigarettes. This factor is of little use where a design alternative is being evaluated]
4. The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility [this factor reflects the benefit side of the calculus]
5. The user's ability to avoid danger by the exercise of care in the use of the product [this factor speaks to the "open and obvious dangers," such as in the Sperry case]
6. The user's anticipated awareness of the dangers inherent in the product and their avoidably, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions
7. The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance

**This is a summary of  information contained in the book found below** 

DAVID G. OWEN, ET AL., PRODUCTS LIABILITY AND SAFETY CASES AND MATERIALS (Robert C. Clark ed., Foundation Press 6th ed. 2010) (1980).