Notes and Questions (after Soule)
1. What is the difference in this case between plaintiff's claim based on a manufacturing defect and her claim based on a design defect? Does the distinction affect any of GM’s defense arguments?
2. Consider how the four elements of the consumer expectations test listed by the trial judge would work in a case like Campbell v. General Motors Corp., 649 P.2d 224 (Cal.1982), in which a bus passenger was thrown from her seat and injured during a sharp turn. She claimed a defective design because there was no "grab bar" within easy reach of her seat. Plaintiff presented no expert testimony but did present photographs of the interior of the bus.
The court held that it was enough for Campbell to show "the objective conditions of the product" so that the jurors could employ "[their] own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence. Since public transportation is a matter of common experience, no expert testimony was required to enable the jury to reach a decision on this part of the Barker inquiry."
How might Campbell be analyzed under the second prong of Barker?
3. In Pruitt v. General Motors Corp., 86 Cal.Rptr.2d 4 (App.1999), the plaintiff was hurt when an air bag deployed in a “low impact collision.” The court upheld the trial court’s refusal to charge on the consumer expectations test because the “deployment of an air bag is, quite fortunately, not part of the ‘everyday experience’ of the consuming public. Minimum safety standards for air bags are not within the common knowledge of lay jurors. Jurors are in need of expert testimony to evaluate the risks and benefits of the challenged design.” Is the relevant expectation that airbags will not hurt you when they are deployed, or that they will not be deployed in low-impact collisions? Does it matter?
Compare Morton v. OwensCorning Fiberglas Corp., 40 Cal.Rptr.2d 22 (App.1995), in which a former insulation installer sued asbestos suppliers after getting mesothelioma—a cancer of the lining that surrounds the lungs. Plaintiff succeeded before the jury on a consumer expectations approach. On appeal, defendant argued that such a test was inapplicable in an asbestos case because of its complexity. The court held the consumer expectations test applicable, stating that the question was whether "the circumstances of the product's failure permit an inference that the product's design performed below the legitimate, commonly accepted minimum safety assumptions of its ordinary consumers." Do car buyers or occupants have “commonly accepted minimum safety assumptions” for air bags?
4. What is the basis for GM's argument that the consumer expectations test should be eliminated? Which of the five reasons offered seems strongest?
5. The court suggests that some car accidents are properly subject to the consumer expectations test. What do they have in common? Why doesn't this case fit within that category?
6. Few states have joined California in shifting the burden of proof to defendants on the issue of "excessive preventable danger." Indeed, in Ray v. BIC Corp., 925 S.W.2d 527 (Tenn. 1996) the position was called “aberrant.” What are the arguments for and against such a shift?
7. In deciding how the risk-utility factors apply in a particular case, much attention has been given to the feasibility of the alternatives. Consider this passage from Banks v. ICI Americas, Inc., 450 S.E.2d 671 (Ga. 1994):
Numerous lists of factors to be considered by the trier of fact in balancing the risk of the product against the utility or benefit derived from the product have been compiled by various authorities. One factor consistently recognized as integral to the assessment of the utility of a design is the availability of alternative designs, in that the existence and feasibility of a safer and equally efficacious design diminishes the justification for using a challenged design. [ ] The alternative safer design factor reflects the reality that
[i]t often is not possible to determine whether a safer design would have averted a particular injury without considering whether an alternative design was feasible. The essential inquiry, therefore, is whether the design chosen was a reasonable one from among the feasible choices of which the manufacturer was aware or should have been aware. [ ]
Indeed, the reasonableness of choosing from among various alternative product designs and adopting the safest one if it is feasible is considered the "heart" of design defect cases, [ ], since it is only at their most extreme that design defect cases reflect the position that a product is simply so dangerous that it should not have been made available at all. []
How does a court decide what the “choices” are? Whether they are “feasible”? Why must the choice be the “safest one”? An example of the “most extreme” case is discussed in note ____ infra.
8.Reasonable alternative design (RAD). The approach in Banks has been formalized in the Products Restatement §2 comment f, which asserts that the plaintiff “must prove that a reasonable alternative design would have reduced the foreseeable risk of harm.” Sometimes “the feasibility of a reasonable alternative design is obvious and understandable to lay persons and therefore expert testimony is unnecessary to support a finding that the product should have been designed differently and more safely.” Other products already on the market may serve “a similar function at lower risk and at comparable cost.” (One exception to the necessity for a RAD is discussed in note __ infra.) The comment is explicit about some criteria but recognizes that they will vary from case to case: a “broad range of factors may be considered in determining whether an alternative design is reasonable and whether its omission renders as product not reasonably safe.” These factors include “among others” the “magnitude and probability of the foreseeable risks of harm, the instructions and warnings accompanying the product, and the nature and strength of consumer expectations regarding the product, including expectations arising from product portrayal and marketing.” In addition, the relative advantages and disadvantages of the product and its proposed alternative must be considered. These include the impact on production costs and on “product longevity, maintenance, repair and esthetics; and the range of consumer choice among products.”
Moreover, the factors interact with one another. For example, evidence of the magnitude and probability of foreseeable harm may be offset by evidence that the proposed alternative design would reduce the efficiency and utility of the product. On the other hand, evidence that a proposed alternative design would increase production costs may be offset by evidence that product portrayal and marketing created substantial expectations of performance or safety, thus increasing the probability of foreseeable harm. . . . On the other hand, it is not a factor under Subsection (b) that the imposition of liability would have negative effect on corporate earnings or would reduce employment in a given industry.
How might the plaintiff in Soule go about proving a RAD? From the standpoint of the two Restatements, consider the cases discussed in the following notes. Many were decided before the Products Restatement but are concerned with same issues.
9. When analyzing risk-utility cases, comparisons among products must consider only comparable products. See Dyson v. General Motors Corp., 298 F.Supp. 1064 (E.D.Pa.1969), refusing to hold a hard-top car defective because it was less protective than a full-frame sedan. But one hard-top car should not be "appreciably less safe" than other hard-tops. See also Curtis v. General Motors Corp., 649 F.2d 808 (10th Cir.1981).
10. In Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066 (4th Cir.1974), plaintiff passengers were hurt when the microbus in which they were riding left the road and ran into a tree. One distinctive feature of the microbus was that its passenger compartment was at the very front of the vehicle. Plaintiffs' negligence claim alleged that the design was defective because it provided less protection than that available in a "standard American made vehicle, which is a configuration with the passengers in the middle and the motor in the front." The court, reversing a plaintiffs' judgment, rejected the claim. After quoting Dyson on the need to distinguish types of vehicles, it continued:
Price is, also, a factor to be considered, for, if a change in design would appreciably add to cost, add little to safety, and take an article out of the price range of the market to which it was intended to appeal, it may be "unreasonable" as well as "impractical" for the courts to require the manufacturer to adopt such change. Of course, if an article can be made safer and the hazard of harm may be mitigated "by an alternate design or device at no substantial increase in price," then the manufacturer has a duty to adopt such a design but a Cadillac may be expected to include more in the way of both conveniences and "crashworthiness" than the economy car. Moreover, in a "crashworthy" case, it is necessary to consider the circumstances of the accident itself. As Dyson puts it, "it could not reasonably be argued that a car manufacturer should be held liable because its vehicle collapsed when involved in a head-on collision with a large truck, at high speed." In summary, every case such as this involves a delicate balancing of many factors in order to determine whether the manufacturer has used ordinary care in designing a car, which, giving consideration to the market purposes and utility of the vehicle, did not involve unreasonable risk of injury to occupants within the range of its "intended use."
Applying the foregoing principles to the facts of this particular case, it is clear that there was no violation by the defendant of its duty of ordinary care in the design of its vehicle. The defendant's vehicle, described as "a van type multipurpose vehicle," was of a special type and particular design. This design was uniquely developed in order to provide the owner with the maximum amount of either cargo or passenger space in a vehicle inexpensively priced and of such dimensions as to make possible easy maneuverability. To achieve this, it advanced the driver's seat forward, bringing such seat in close proximity to the front of the vehicle, thereby adding to the cargo or passenger space. This, of course, reduced considerably the space between the exact front of the vehicle and the driver's compartment. All of this was readily discernible to any one using the vehicle; in fact, it was, as we have said, the unique feature of the vehicle. The usefulness of the design is vouchsafed by the popularity of the type. It was of special utility as a van for the transportation of light cargo, as a family camper, as a station wagon and for use by passenger groups too large for the average passenger car. It was a design duplicated in the construction of the large trucking tractors, where there was the same purpose of extending the cargo space without unduly lengthening the tractor-trailer coupling. There was no evidence in the record that there was any practical way of improving the "crashability" of the vehicle that would have been consistent with the peculiar purposes of its design.
The court concluded that the microbus was to be compared only with comparable vehicles. Here, the defense had presented unrefuted testimony that the safety of the microbus "was equal to or superior to that of other vehicles of like type."
See Bittner v. American Honda Motor Co., 533 N.W.2d 476 (Wis.1995), in which plaintiff was hurt when his 3-wheel ATV overturned going around a corner on a mowed grass path. Defendant was properly permitted to compare safety records of this ATV with other products intended for similar purposes--snowmobiles, minibikes, trailbikes and 4-wheel ATVs--to suggest that the accident in question was more likely attributable to the operator than to the product. But Honda should not have been allowed to introduce evidence on the risks of "dissimilar products and activities"--sky-diving, skiing, bicycle riding, scuba diving, football, and passenger automobiles--to show that ATVs were not unreasonably dangerous. Such evidence could not help the jury decide whether the product at issue was reasonably safe. The manufacturer's obligations "persist whether or not the product has a high rate of injury associated with it." In some cases a high rate of injury associated with a product might help the defense because it might permit the jury "to infer plaintiff's contributory negligence." We consider the role of this sort of defense at p. ___ infra.
11. Does Soule require, or permit, differentiating between products that may be dangerous only to the users, such as food, drink and microbuses, and those that might be dangerous to bystanders as well, such as snowmobiles, and power mowers that toss rocks beyond the lawn? If a manufacturer has achieved a huge cost reduction by the sacrifice of a small amount of safety, should bystanders be subjected to the additional danger without hope of recovering damages under a balancing test, when they receive no direct benefit from the reduced price?
12.The irreducibly unsafe product. The “extreme” case, mentioned by the Banks supra and in the Products Restatement’s exception to the need for a RAD, involves products whose dangers are known and often great, but for which there are no RADs. O'Brien v. Muskin, 463 A.2d 298 (N.J. 1983), sharpened this issue. It involved an above-ground swimming pool that was properly filled with 3-1/2 feet of water. The trial judge submitted a warning claim to the jury, which decided it for defendant. The judge’s refusal to submit the design prong of the case was reversed on appeal. It recognized that if there was no reasonable alternative, “recourse to a unique design is more defensible.” Nonetheless:
The evaluation of the utility of a product also involves the relative need for that product; some products are essentials, while others are luxuries. A product that fills a critical need and can be designed only one way should be viewed differently from a luxury item. Still other products, including some for which no alternative exists, are so dangerous and of such little use that under the risk-utility analysis, a manufacturer would bear the cost of liability of harm to others. That cost might dissuade a manufacturer from placing the product on the market, even if the product has been made as safely as possible. Indeed, plaintiff contends that above-ground pools with vinyl liners are such products and that manufacturers who market those pools should bear the cost of injuries they cause to foreseeable users.
. . . The trial judge should have permitted the jury to consider whether, because of the dimensions of the pool and slipperiness of the bottom, the risks of injury so outweighed the utility of the product as to constitute a defect. . . . Viewing the evidence in the light most favorable to plaintiff, even if there are no alternative methods of making bottoms for above-ground pools, the jury might have found that the risk posed by the pool outweighed its utility.
The majority then turned to emphasize a main difference between them and the dissenter:
[The dissenter] would find that no matter how dangerous a product may be, if it bears an adequate warning, it is free from design defects if there is no known alternative. Under that hypothesis, manufacturers, merely by placing warnings on their products, could insulate themselves from liability regardless of the number of people those products maim or kill. By contrast, the majority concludes that the judicial, not the commercial, system is the appropriate forum for determining whether a product is defective, with the resultant imposition of strict liability upon those in the commercial chain.
What does "defective" mean in this context? What analysis if, after several years of warnings that all reasonable people recognize as more than adequate in substance, size and placement, ten people per year in New Jersey still dive into these pools and are paralyzed? Recall the Dreisonstok case, note ___, supra, in which the court refused to compare the microbus design with that of dissimilar--safer--vehicles. Is that case inconsistent with O'Brien?
What if 1,000 people accidentally cut themselves badly on sharp knives in New Jersey each year? In the Barker case, p. ___, supra, the court noted that it need not consider "whether a product that entails a substantial risk of harm may be found defective even if no safer alternative design is feasible." It cited a law review article in which Justice Traynor suggested liability might be imposed for products "whose norm is danger." Reconsider Judge Cardozo's analysis of the "Flopper," p. ___ , supra. Despite the package warnings and general knowledge, should there by design defect liability against cigarette manufacturers?
Other states have rejected the analysis in O'Brien as a matter of common law. In Baughn v. Honda Motor Co., Ltd., 727 P.2d 655 (Wash. 1986), for example, the court held that a manufacturer of "mini-trail bikes" could not be held liable for injuries suffered when the bikes were used on public roads in disregard of explicit warnings against such usage. Plaintiff relied on O'Brien for the proposition that the case should go to the jury to weigh the risk and utility of the bikes. The court insisted that the product was not defective as a matter of law when its warnings (which were found adequate) were followed. Should it matter if ten percent of the users of these bikes are killed in highway accidents?