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Products Liability Newsletter

Using Consumer Expectations or Risk-Utility to Determine Design Defect

In a “product liability” case, the plaintiff typically sues the manufacturer and/or supplier of a product for damages resulting from an injury sustained through its use. Depending on the state where the lawsuit is commenced, the court may apply one or more tests to determine whether or not liability exists.

Design Defect

In design defect cases, a court may determine that an entire product line is defective because of a flawed design. In such cases, the product is made exactly as intended, and is therefore not defectively manufactured. Courts have formulated tests to determine if a product was defective in its design. Application and use of such tests vary by jurisdiction, but two tests have come to predominate: (1) the “consumer expectations” test and (2) the “risk-utility” test.

The Consumer Expectations Test

In California and other states, a product may be considered to be defectively designed if it fails the “consumer expectations” test. The focus is on what a consumer expects a particular product to be suited for and how it will function “safely.” Under this test, a product is defective in design when it fails to perform as safely as an ordinary consumer would expect it to, when it is used in an intended or reasonably foreseeable manner.

For example, assume a consumer is injured when he stands on a chair to change a light bulb and the chair suddenly collapses, causing him to fall. Although the “intended” use of a chair is likely for seating, a court may determine that use of the chair as a footstool was a “reasonably foreseeable” use. If so, and if the court further determines that an ordinary consumer would not expect the chair to collapse when used as a footstool, the design of the chair may be adjudged defective.

One problem with the consumer expectations test is that courts may have difficulty determining what an ordinary consumer would expect in certain situations. For example, the ordinary consumer may not have safety expectations for features of a complex product, like the exhaust system of a car. In response to situations where the consumer expectations test fails to provide an adequate standard, some courts have applied an alternative “risk-utility test.”

The Risk-Utility Test

Some jurisdictions apply a risk-utility test initially or as an alternative test. The risk-utility test commonly entails a weighing of the usefulness of the product with the inherent danger and the cost of changes to make it safer. Courts have considered a number of factors in their analysis, including:

  • Usefulness and desirability of the product
  • Availability of safer, alternative products
  • The dangers inherent in the use of the product
  • Likelihood and probability of seriousness of injury
  • Obviousness of the danger
  • Normal public expectation of danger
  • Ability to avoid injury by exercising care in product use; e.g., following warnings and instructions
  • Feasibility of eliminating the product’s dangerous potential without seriously affecting its function or making it too expensive

Through weighing these factors, the court determines whether the risk of danger inherent in the particular product’s design outweighs its benefits. If the court finds that the risks associated with the product outweigh its utility, the product’s design is deemed defective.

Application of the Tests

To illustrate how courts apply these tests, in a Washington state case, a teenager was injured when he attempted a double flip on a trampoline. First, the court found that the risk-utility test was satisfied; the nature and purpose of a trampoline precluded any alternative design to prevent the injury. Second, under a consumer expectation test, the court also determined that the trampoline’s design was not defective, because an ordinary consumer could comprehend the obvious dangers of jumping on a trampoline. Ultimately, the trampoline manufacturer was not held liable for the injury.

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