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If a product is advertised as safe, it should be safe, right?  Consumers should not have to read a bunch of legalese to determine whether or not to purchase a product when its safety is implied.  And if the product is defective, how can the consumer prove it could have been designed better?  Consumers aren’t engineers.  All they know is that if they’ve been seriously damaged by a product, they should receive justice in the form of compensation.  A reaffirmation of strict liability on the part of the manufacturer is the only fair and just course of action in the courts.

Please read the article which ran in the November issue of Trial Magazine below:
 

Reaffirming strict liability for product design cases
Trial Magazine
November, 2008
Larry S. Stewart

The battle over §2(b) of the latest restatement—which gives manufacturers a free pass from liability unless plaintiffs prove a reasonable alternative design—is far from over. It’s time to return to the bedrock principles of strict liability in design defect cases.

Forty-three years ago, the American Law Institute (ALI) launched a revolution in products liability law when it introduced the Restatement (Second) of Torts §402A. Before this, courts had struggled to find a rationale for liability for products-related injuries. Many cases, brought under either negligence or warranty theories, failed due to lack of privity or evidence of what happened in the design and/or manufacture of the product, or because of notice and disclaimer defenses.

Section 402A provides that product sellers are strictly liable for injuries from unreasonably dangerous products even if a seller exercised all possible care in the preparation and sale of its product.1 The rule was so self-evident that it quickly became the law of the land.

Under §402A, product sellers are liable for harms caused by any product that is “in a defective condition unreasonably dangerous” to the consumer and that is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer.”2 A knife, for example, is not unreasonably dangerous because it is capable of cutting—it would be quite useless if it wasn’t—but if the knife’s handle is made of a brittle material that breaks and injures the consumer, the seller would be liable. In the lexicon of products liability law, this became known as the consumer-expectation test.

But not long after its adoption, §402A’s principle of strict liability for product defects became muddled by proposals for a risk-benefit “test” that would evaluate product defects under a negligence-type analysis, balancing the risk of injury against the benefit of the product. In many respects, the risk-benefit test stood products liability law on its head. It took what was an affirmative defense under §402A for “unavoidably unsafe” products and made it the basis for a determination of liability. Products would be presumptively safe unless plaintiffs proved that their inherent risks outweighed their benefits.

The ensuing debate over the proper rule for evaluating liability for product defects has generated much confusion. Part of the confusion comes from the conceptual difference between strict liability and the negligence-based risk-benefit theory. Further confusion results from the fact that risk-benefit is used to describe both a test of defectiveness and an affirmative defense. Many courts do not seem to appreciate these differences or choose to ignore them, and the resulting decisions are conflicting, inconsistent, and irreconcilable.3

Today, products liability law is a hodgepodge of rules, especially in design defect cases, where courts apply standards ranging from the consumer-expectation test to the risk-benefit test, with various hybrid combinations in between. Adding to the confusion, 11 years ago, the ALI did an about-face when it published the Restatement (Third) of Torts: Products Liability. Under the new restatement, §402A and the consumer-expectation test would be abolished and replaced with a risk-benefit test in which one element—the existence of a reasonable alternative design—is elevated to an absolute requirement.

In unintended ways, the harsh proposals of the new restatement have brought light to bear on the abysmal state of the law. But courts have so far largely rejected the core provisions of the new restatement, and it is not too late to bring reason and fairness back to products liability law. Consumer lawyers have an opportunity to direct a new look at products liability law, one that can reaffirm the social policies that underlie §402A.

The assault on strict liability
Modern products liability law began with the adoption of the Restatement (Second) of Torts §402A in 1965.4 Section 402A was based on an elegantly simple rationale: In marketing products, sellers bear a special responsibility to consumers. Sellers implicitly represent that their products are safe and that the public has a right to expect that reputable sellers will stand behind their products.

The term “strict liability” is somewhat of a misnomer. Section 402A liability does not automatically follow from a product injury, as it does in the case of harm resulting from the keeping of dangerous animals or other abnormally dangerous activities. To hold a product seller strictly liable, the plaintiff has to prove both that the product was defective and that the defect caused the plaintiff’s harm.

Not all defects result in liability. The restatement recognizes that some products that cannot be made completely safe still have utility. For these unavoidably unsafe products, the restatement provides a defense to a seller who markets “an apparently useful and desirable product, [even though it is] attended with a known but apparently reasonable risk”—as long as the seller provides “proper directions and warning.”5

Sellers cannot, however, feign ignorance of risks. They have an obligation to test product designs for residual risks, are charged with knowledge of what such testing would reveal, and, where feasible, must adopt safer designs over warning of risk.

The theory that the defectiveness of a product could be determined on the basis of what an ordinary consumer would expect from the product did not meet with universal acceptance. Some scholars believed that, notwithstanding the implications for consumer recovery, defectiveness should be anchored in more traditional concepts, principally negligence.

This suggestion was first expressed as a risk-benefit test by Vanderbilt University Law School Dean John Wade in his 1973 article On the Nature of Strict Tort Liability for Products.6 Wade argued for nullification of strict liability for all types of product defects—both manufacturing and design—and a return to negligence principles. He proposed that liability for defective products be based only on the reasonableness of the marketing decision under a “reasonably prudent manufacturer” standard, taking into account several different factors.

By the 1980s, the academic strict liability debate became quite partisan, as corporate interests embraced the negligence-based risk-benefit theory. In courtrooms nationwide, corporate defendants modified Wade’s approach by dividing products liability cases into two categories: those involving manufacturing defects and those based on design defects.

For the former, defendants conceded §402A liability. For the latter, which constitute the bulk of products liability claims, they argued that §402A should be replaced by the negligence-based risk-benefit theory. This strategy was coordinated by the Washington, D.C.-based Product Liability Advisory Council (PLAC), a legal advocacy group for product manufacturers.7

Consumer advocates, including plaintiff lawyers, were largely missing in the debate, whether because of ignorance of the issues or an assumption that strict liability was so firmly established in the law that it did not need defending. The debate, which was initially a state-by-state affair, was refocused when ALI decided to write a new restatement of products liability law in 1991.

The risk-benefit test
In proposals that closely paralleled PLAC’s agenda, the Reporters for the new restatement divided products claims into manufacturing defects, design defects, and failure-to-warn cases. The Reporters stated that manufacturing defects should continue to be decided under a strict liability regime, but they proposed a radical new concept for design defect cases based on what they claimed was the majority rule in the United States.

According to the Reporters, most states had adopted the risk-benefit test for design defect cases and made one factor of that test—the availability of a reasonable alternative design—an absolute requisite for liability.8 Based on that claim, the Reporters proposed that §402A and its consumer-expectation test be abolished in favor of their version of the risk-benefit test, articulated in the new §2(b). A highly controversial six-year debate followed.

The controversy was further fueled by the Reporters’ prior association with PLAC and what some observers saw as a blatant tort “reform” agenda.9 While the Reporters argued that the consumer-expectation test was inadequate to measure design defects and that an independent standard was needed, their principal focus was on protecting defendants, not public policy. An unstated premise of their position was the idea that jurors could not be trusted to make such decisions. This generated even more criticism from the opponents of the proposed new restatement.

At the same time, the Reporters undermined their own criticism of the consumer-expectation test by conceding that it was a valid criterion for the risk-benefit test and by expressly retaining it for food products. They overlooked the fact that the fundamental purpose of strict liability is to relieve injured consumers of having to prove negligence and to place the cost of injuries on the manufacturers rather than consumers, who are ordinarily powerless to protect themselves.

Commentators and other academics quickly contradicted the Reporters’ scholarship, reasoning, and motivation. The resulting deliberations were some of the most contentious in ALI history, and the proposals passed by extremely close votes.10

Before the ink was dry, the new restatement was in trouble. To date, it has been largely rejected by the courts that have reviewed it. In fact, while the restatement was still only in draft form, the Georgia Supreme Court refused to require proof of an alternative design.11 And the supreme courts of California and Connecticut emphatically rejected §2(b).12

In a stunning decision, the Connecticut Supreme Court weighed in just days after final passage. In Potter v. Chicago Pneumatic Tool Co., the court boldly questioned the scholarship underlying §2(b) and concluded that the Reporters were wrong. The court, independently reviewing the law, found that “the majority of jurisdictions do not impose upon plaintiffs an absolute requirement to prove a feasible alternative design” and that such a requirement “imposes an undue burden on plaintiffs that might preclude otherwise valid claims from jury consideration.”13 The Potter court also rejected the new restatement’s position that the consumer-expectation test should not apply in design defect cases.

After Potter, the Maryland Court of Appeals and the supreme courts of Kansas, Missouri, New Hampshire, Oregon, and Wisconsin all refused to adopt §2(b).14 These decisions are remarkable because they bluntly state that the new restatement “goes beyond the law,” sets the bar too high, and would be a regression in the law that would roll back decades of individual justice and return the courts to an era of defendant protectionism.15

Indeed, if the new restatement were followed, a manufacturer would have no incentive to produce as safe a product as possible. It would only have to design a product to meet a standard whereby benefits outweighed risks. When sued for a defective design or a failure to warn, a manufacturer could take refuge in the opinions of compliant experts and the inherent difficulties plaintiffs would have in proving an alternative design.

Looking back, striving forward
The battle over the new restatement is far from over. Defense interests have not been deterred by their losses to date, and battlegrounds remain in the more than 40 states where no opinions on the new restatement have been issued by courts. Even though there is no need to further restrict products liability claims,16 every lawsuit is another potential vehicle for raising these repressive rules, and uninformed plaintiff lawyers can easily be blindsided.17

Consumer lawyers must learn how to defend against the new restatement and the reasonable-alternative-design trap. They must begin by understanding the history of strict liability and the companion history of the risk-benefit theory. This includes knowing the powerful reasoning of the decisions that have already rejected the new restatement.

The problem is not just that the tables are tipped in favor of defendants when plaintiffs must prove that a product’s risks are greater than its benefits and that an alternative safer design existed. Nor is it only that having to prove an alternative safer design in every case is contrary to the majority rule. As the Wisconsin Supreme Court forcefully stated, the new restatement also would create a form of previously unknown negligence whereby plaintiffs have to prove both that the sellers’ conduct was negligent and that there was an alternative design the seller could have adopted.18

The social policies underlying §402A are just as valid and relevant now as they were 43 years ago. In a time of rapidly changing technology, it is just as true today, if not more so, that sellers bear a special responsibility to consumers to provide safe products and that the public should have the right to expect that sellers will stand behind their products.

It is just as true today that sellers are in the best position to demonstrate that the benefits of a product outweigh its risks. And, it is just as true today that the burden of product injuries should be placed on those who market products, rather than on those who use them.

The time has come to redefine the issues in this battleground. Consumer attorneys need to question whether risk-benefit in any form should be a valid basis for determining if a product is defective.

All consumer lawyers should join in the debate in a systematic and organized way, at both the state and national levels, to argue for a return to the bedrock principles of strict liability. Risk-benefit as a test of product defect gained traction, in part, because plaintiff lawyers sat on the sidelines. We should not let that sad bit of history repeat itself.

When products are dangerous beyond the expectations of ordinary consumers, the seller should be liable for all resulting harm, regardless of whether it exercised all possible care. Consumer lawyers should not shy away from the consumer-expectation test. It is no more indefinite than negligence concepts, which are routinely applied in myriad complex cases like those arising from professional malpractice.

Nor are products too complex for consumers to understand. It is not necessary for a consumer to appreciate all the details or intricacies of a product to have an expectation of safety.19 With modern marketing and advertising, there are virtually no products for which consumers do not have an expectation of safety, especially with the use of family scenes in ads. Also, the absence of warnings and cautions in that advertising—or the impossibility of reading or hearing warnings—likewise makes it seem that products are safe for almost unlimited uses.

Moreover, plaintiff lawyers need to recognize that much of the opposition to the consumer-expectation test stems from the notion that the evaluation of product design or warning is too important to be left to juries of ordinary citizens. Society entrusts the most important decisions of life and death, as well as complex business disputes and professional judgments, to such juries. Clearly, they are capable of making decisions concerning product safety and the adequacy of product warnings.

Consumer lawyers need to stress that the only role for a risk-benefit analysis in strict liability should be as an affirmative defense—one that comes into play only when a seller has adequately tested its product and taken all reasonable steps to adopt a safe design.20 If a residual risk remains and users have been warned so that they can avoid harm, then—and only then—should a seller be allowed to defend on the grounds that the benefits of the product outweigh its risk. This allocation of proof is reasonable because, after all, it is the seller who is in the best position to defend its design choices and marketing decisions.

This battle is too important to let others frame the debate. Ultimately, it is over whether caveat emptor is going to again rule products liability law. That outcome will be prevented only if we make the case for reaffirming strict liability for products liability claims.
Larry S. Stewart, a former president of AAJ (then ATLA), practices law with Stewart Tilghman Fox & Bianchi in Miami.