An Overview of the Legal Standard regarding Product Liability Design Defect Claims and a Fifty State Survey on the Applicable Law in Each Jurisdiction

By McWilliams, Mike; Smith, Margaret | Defense Counsel Journal, January 2015 | Go to article overview

An Overview of the Legal Standard regarding Product Liability Design Defect Claims and a Fifty State Survey on the Applicable Law in Each Jurisdiction


McWilliams, Mike, Smith, Margaret, Defense Counsel Journal


This article originally appeared in the September 2014 Product Liability Committee newsletter.

IT has been said that "the expansion of product manufacturer liability throughout the latter half of the twentieth century stands among the most dramatic changes ever witnessed in the AngloAmerican legal system."1 Prior to the products liability revolution of the 1960's, manufacturers were rarely held liable for defective products.2 With the advent of the American Law Institute's adoption of strict products liability in section 402A of the Restatement (Second) of Torts, a revolution was born.3 "Section 402A caught on like wildfire in American state courts." In fact, "no single doctrinal common law principle was ever adopted so widely and quickly in the United States as strict products liability."4

The overwhelming majority of states initially adopted a "consumer expectations" test as the measure for determining the existence of a design defect under I402A. The consumer expectations test set out to protect the ordinary consumer by requiring that "for a product to be considered unreasonably dangerous, it must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases the product, with the ordinary knowledge common to the community as to the characteristics of the product."5 However, problems arose by the 1980s, and a consensus view among products liability scholars emerged: "the consumer expectations test was both indefensible in theory and unworkable in practice."6 In its place, "scholars advocated for the clear costbenefit balancing approach of the primary alternative doctrine that courts had developed for determining design defectiveness, the risk-utility test."7 The risk-utility test had first been articulated in a 1973 law review article, and slowly gained some acceptance throughout the country because of its appeal as a structured approach to design defect liability.8

After four decades of frustration regarding the precision of the consumer expectations test, "the American Law Institute ("ALI") appointed Professors Henderson and Twerski, two academic critics of judicial expansion of product manufacturer liability, as co-Reporters of the ALI's important project, the Restatement (Third) ofTorts: Products Liability."9 The ALI ultimately adopted the results of the Reporters' exceptional efforts on May 20,1997.10 In doing so, the ALI rejected the consumer expectations test as the sole test for product design defect in exchange for the more "analytically sound" risk-utility test.11

Rejection of the consumer expectations test may have been the plan, but it most certainly was not the result. In the seventeen years following promulgation of the Third Restatement, several courts have continued to issue opinions expressing varying degrees of judicial allegiance to the consumer expectations test.12

Even though the consumer expectations test closely resembles the risk-utility test in application, proponents of the riskutility test criticize the consumer expectations test as "highly subjective, confusing, unpredictable, and unfair to manufacturers and defendants."13 The Model Uniform Product Liability Act rejected the consumer expectations test altogether because, as the drafters stated, "the consumer expectations test takes subjectivity to its most extreme end. Each trier of fact is likely to have a different understanding of abstract consumer expectations."14 Problematically, the consumer expectations test "depends on a determination - specifically, the expectation of the consumer - that the producer may not be able to predict with any reasonable degree of accuracy at the time of production."15

In light of the supposed unfairness of the consumer expectations test, many scholars thrust the risk-utility test forward as the answer to the prayers of both producers and consumers. According to Prosser and Keeton, the theory underlying this "saving grace" approach is quite simple: "virtually all products have both risks and benefits and there is no way to go about evaluating design hazards intelligently without weighing danger against utility. …

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