Will the CT Supreme Court Reinvent Design Defect Law?

Strict product liability for design defects serves to protect the consuming public in ways the negligence standard proposed in section 2(b) will not. Strict liability creates a strong incentive for manufacturers to adequately design, develop and test the product before it enters the market. It sends the message to manufacturers that they should take care to allocate resources to develop safe designs and to discover defects. Strict liability provides that manufacturers that fail to perform these steps will face liability for their failures. This tells manufacturers, “If you want to earn a profit off your product marketed to the consuming public, then you will bear the responsibility of injuries caused.” Rightly, it emphasizes the well-being of the consumer over the profit of the manufacturer.

In contrast, the test in section 2(b) lowers the bar from strict liability to negligence. It focuses the jury's inquiry on the conduct of the manufacturer in designing the product. Incorporating elements of foreseeability will greatly increase the burden on plaintiffs. It is antithetical to the policy that those who “lack familiarity” should not “shoulder the burden of proving negligence.” Potter, 241 Conn. at 209. Just as ordinary consumers lack familiarity in the manufacturing process of the products they buy, ordinary consumers also do not generally have insight into manufacturing design or development processes. The consumer is significantly disadvantaged.

In addition to changing Connecticut's design defect law to a negligence standard, section 2(b) also mandates plaintiffs to prove a reasonable alternative design. While plaintiffs may offer evidence of reasonable alternative designs at trial, making proof of a reasonable alternative design a requirement will preclude plaintiffs from filing valid product liability claims where value cannot justify the expense of introducing such evidence at trial — assuming plaintiffs can even muster the huge resources and army of experts necessary to prove a reasonable alternative design. In a time of out-of-control litigation costs that already bar many legitimate claims from seeing the light of a courtroom, legal tests that substantially increase these costs stand as a barrier to justice. Further, there is a real concern that manufacturers of products designed with no reasonable alternative will be immunized. See Potter, 241 Conn. at 219; see also Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014) (same).

Let's use driverless cars as an example. Testing of these robot cars is occurring on public roads in many states across the country. Consider a scenario where a consumer is harmed because the driverless car causes a non–res ipsa-type accident. Absent specific contrary legislation on driverless cars, under section 2(b), a plaintiff must submit evidence of a reasonable alternative design. Two ways come to mind: 1) obtain design information from a competitor that may make a safer driverless car, or 2) hire a team of experts to design, build, and present a working marketable prototype of a driverless car. As to the former, it is highly unlikely that a competing manufacturer will provide a plaintiff with its product design information voluntarily, and there are no discovery tools for which a plaintiff can obtain the information of a manufacturer's competitor. As to the latter, the cost in proving this reasonable alternative design will be an impossible task for almost every plaintiff. Because driverless car technology is still in its testing phase, there may not be a reasonable alternative design available, and therefore, a plaintiff's claim will be precluded at the outset.

The modified consumer expectation test permits a plaintiff to rely on a reasonable alternative design, or utilize one or more of the several other factors listed in Potter to prove her case. See Potter, 241 Conn. at 221 n.15. Thus, a plaintiff can present the risks and utility of a driverless car that is prone to crashing in certain situations. The jury can assess either of these products through the lens of an ordinary consumer. The focus remains on the safety of the product and the protection of the consuming public.

Conclusion

If the drafters of section 2(b) were truly concerned with “creating incentives for manufacturers to achieve optimal levels of safety in designing and marketing products,” then strict liability for design defect claims would persist. Restatement (Third) of Torts, Products Liability § 2(b) cmt. a. The modified consumer expectation test allows the jury to utilize “ordinary knowledge common to the community” to assess the product. See Izarelli v. R.J. Reynolds Tobacco Co., 321 Conn. 172, at 190 (2016) (“Under the 'modified' consumer expectation test, the jury would weigh the product's risks and utility and then inquire in light of those factors, whether a 'reasonable consumer would consider the product design unreasonably dangerous.'”). The judgment of the jury and what an ordinary consumer expects should not be supplanted for what a manufacturer failed to foresee. See Restatement (Second) of Torts § 402A cmt. i. “[P]ublic policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them.” Restatement (Second) of Torts § 402A, cmt. c. This has been the law in Connecticut for half a century. It is supported by sound public policy and should continue to persist for the benefit and safety of the consuming public.

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Michael D'Amico is a partner at D'Amico and Pettinicchi. Jeremy D'Amico practices in the same firm. This article also appeared in The Connecticut Law Tribune, an ALM sibling publication of this newsletter.

Editor's Note: Last month, the authors noted with dismay the fact that the Connecticut Supreme Court is currently considering whether the state should abandon its traditional strict product liability standard for design defect claims and replace it with section 2(b) of the Restatement (Third) of Torts, which requires plaintiffs to prove the manufacturer's foreseeability of harm, and prove the effectiveness of a reasonable alternative design in order to recover damages for product-caused injuries. See Bifolck v. Philip Morris, Inc. (FEDB-CV-060001768-S (Connecticut Supreme Court docket for Bifolck); see also Restatement (Third) of Torts, Products Liability § 2(b) (Am. Law Inst.). They conclude their discussion herein.

Fifty Years of Design Defect Jurisprudence Dismantled?

The test proposed in section 2(b) requires the court to sever design defect claims from their strict product liability roots, cut ties with the public policy supporting its holding in Potter ( Potter v. Chicago Pneumatic Tool Co. , 241 Conn. 199 (1997)), and rebalance protection of the innocent consumer with the financial interests of manufacturers. Section 2(b) adopts principles of negligence for design defect claims. Comments to this section explain that the test “for products that are defectively designed or sold … achieve[s] the same general objectives as does liability predicated on negligence.” See Restatement (Third) of Torts, Products Liability § 3 cmt. a. In addition, there is the requirement that a plaintiff must prove a reasonable alternative design, and its effectiveness.

Strict product liability for design defects serves to protect the consuming public in ways the negligence standard proposed in section 2(b) will not. Strict liability creates a strong incentive for manufacturers to adequately design, develop and test the product before it enters the market. It sends the message to manufacturers that they should take care to allocate resources to develop safe designs and to discover defects. Strict liability provides that manufacturers that fail to perform these steps will face liability for their failures. This tells manufacturers, “If you want to earn a profit off your product marketed to the consuming public, then you will bear the responsibility of injuries caused.” Rightly, it emphasizes the well-being of the consumer over the profit of the manufacturer.

In contrast, the test in section 2(b) lowers the bar from strict liability to negligence. It focuses the jury's inquiry on the conduct of the manufacturer in designing the product. Incorporating elements of foreseeability will greatly increase the burden on plaintiffs. It is antithetical to the policy that those who “lack familiarity” should not “shoulder the burden of proving negligence.” Potter, 241 Conn. at 209. Just as ordinary consumers lack familiarity in the manufacturing process of the products they buy, ordinary consumers also do not generally have insight into manufacturing design or development processes. The consumer is significantly disadvantaged.

In addition to changing Connecticut's design defect law to a negligence standard, section 2(b) also mandates plaintiffs to prove a reasonable alternative design. While plaintiffs may offer evidence of reasonable alternative designs at trial, making proof of a reasonable alternative design a requirement will preclude plaintiffs from filing valid product liability claims where value cannot justify the expense of introducing such evidence at trial — assuming plaintiffs can even muster the huge resources and army of experts necessary to prove a reasonable alternative design. In a time of out-of-control litigation costs that already bar many legitimate claims from seeing the light of a courtroom, legal tests that substantially increase these costs stand as a barrier to justice. Further, there is a real concern that manufacturers of products designed with no reasonable alternative will be immunized. See Potter , 241 Conn. at 219; s ee also Tincher v. Omega Flex , 104 A.3d 328 (Pa. 2014) (same).

Let's use driverless cars as an example. Testing of these robot cars is occurring on public roads in many states across the country. Consider a scenario where a consumer is harmed because the driverless car causes a non–res ipsa-type accident. Absent specific contrary legislation on driverless cars, under section 2(b), a plaintiff must submit evidence of a reasonable alternative design. Two ways come to mind: 1) obtain design information from a competitor that may make a safer driverless car, or 2) hire a team of experts to design, build, and present a working marketable prototype of a driverless car. As to the former, it is highly unlikely that a competing manufacturer will provide a plaintiff with its product design information voluntarily, and there are no discovery tools for which a plaintiff can obtain the information of a manufacturer's competitor. As to the latter, the cost in proving this reasonable alternative design will be an impossible task for almost every plaintiff. Because driverless car technology is still in its testing phase, there may not be a reasonable alternative design available, and therefore, a plaintiff's claim will be precluded at the outset.

The modified consumer expectation test permits a plaintiff to rely on a reasonable alternative design, or utilize one or more of the several other factors listed in Potter to prove her case. See Potter, 241 Conn. at 221 n.15. Thus, a plaintiff can present the risks and utility of a driverless car that is prone to crashing in certain situations. The jury can assess either of these products through the lens of an ordinary consumer. The focus remains on the safety of the product and the protection of the consuming public.

Conclusion

If the drafters of section 2(b) were truly concerned with “creating incentives for manufacturers to achieve optimal levels of safety in designing and marketing products,” then strict liability for design defect claims would persist. Restatement (Third) of Torts, Products Liability § 2(b) cmt. a. The modified consumer expectation test allows the jury to utilize “ordinary knowledge common to the community” to assess the product. See Izarelli v. R.J. Reynolds Tobacco Co. , 321 Conn. 172, at 190 (2016) (“Under the 'modified' consumer expectation test, the jury would weigh the product's risks and utility and then inquire in light of those factors, whether a 'reasonable consumer would consider the product design unreasonably dangerous.'”). The judgment of the jury and what an ordinary consumer expects should not be supplanted for what a manufacturer failed to foresee. See Restatement (Second) of Torts § 402A cmt. i. “[P]ublic policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them.” Restatement (Second) of Torts § 402A, cmt. c. This has been the law in Connecticut for half a century. It is supported by sound public policy and should continue to persist for the benefit and safety of the consuming public.

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Michael D'Amico is a partner at D'Amico and Pettinicchi. Jeremy D'Amico practices in the same firm. This article also appeared in The Connecticut Law Tribune, an ALM sibling publication of this newsletter.