In the world of products liability, design defect claims arise when the product is inherently dangerous in its design. The test for whether a product is inherently dangerous has evolved in modern years from the “consumer expectations test” to the “risk-utility test.”
Under the traditional consumer expectations test, the seller of a product is liable if the product is in a defective condition such that it renders the product unreasonably dangerous to the consumer. This standard allows a jury to infer the existence of a defect if the product fails to meet reasonable expectations of consumers.
The risk-utility analysis on the other hand, allows the fact finder to consider consumer expectations in the risk-utility balancing, but the Third Restatement makes clear that “consumer expectations do not play a determinative role in determining defectiveness.” Restatement (Third) of Torts: Prod. Liab. § 2 (1998), comment g. Additionally, the risk-utility analysis typically requires plaintiff to put on proof of a feasible alternative design. Id. at (b).
The modern tend by state supreme courts has been to adopt some form of the risk-utility analysis. See Branham v. Ford Motor Co., 390 S.C. 203, n. 11, 701 S.E.2d 5, n. 11 (S.C. 2010) (“By our count 35 of the 46 states that recognize strict products liability utilize some form of risk-utility analysis in their approach to determine whether a product is defectively designed.”). Despite this overwhelming trend, three states (Florida, South Dakota, and Nevada) have recently declined to adopt the risk-utility analysis, suggesting a change in the modern trend.
Florida:
In Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015), an asbestos/mesothelioma case, the Florida Supreme Court addressed whether, inter alia, the lower appellate court erred in applying the Third Restatement, i.e. the risk-utility test. The Florida Supreme Court first noted that applying the Third Restatement conflicted with prior Florida case law that utilized the consumer expectations test instead of the risk utility test. The court further noted that the consumer expectations test “best vindicates the purposes underlying the doctrine of strict liability” and “emphasized[d] that the Restatement is not a uniform code that is promulgated to harmonize the law throughout the states.”
In considering whether to adopt the Third Restatement’s approach to design defect claims, the court carefully examined the risk-utility analysis and discussed other state supreme court opinions that have addressed the same question. Ultimately the Florida Supreme Court rejected the risk-utility test:
[We] are in accord with those state supreme courts that have thoughtfully considered this...
