5.40D-3 – Design Defect — Legal Tests of Product Defect

5.40D-3 DESIGN DEFECT — LEGAL TESTS OF PRODUCT DEFECT

1. Consumer Expectations Test
   Plaintiff claims that the product was defectively designed because it failed to perform in accordance with the consumer’s/user’s reasonable expectations. To establish his/her claim of design defect, plaintiff must prove by the preponderance (greater weight) of the credible evidence that: 
   1. The product was designed in a defective manner.
      A design defect is established by proof that the product did not safely perform the job or function for which it was made, contrary to the consumer’s/user’s reasonable expectations. For example, a bicycle would be defective if it were designed so that its brakes did not hold in situations where a rider would reasonably expect the brakes to hold. 

      In deciding this question, you should ask yourselves “what were the intended or foreseeable functions of the product? Has the plaintiff shown that the product did not safely fulfill its intended or anticipated functions?”

      In proving a defect in the design of a product, plaintiff need not prove that defendant manufacturer/seller knew that the accident in this case could happen as it did. Knowledge of the possibility of such an event is legally placed upon the manufacturer/seller. The question for you to decide is whether, assuming the defendant(s) knew the accident could happen as it did, it was (they were) nevertheless reasonably careful in the manner in which it (they) designed (marketed or sold) the product.

      But, if the danger of the design was not knowable at the time of manufacture or sale, or if there was no practical and technically feasible alternative design that would have prevented the harm, the defendant cannot be found to be at fault. However, the burden of proof as to what was known and feasible falls on defendant. That is to say, if the defendant contends the danger was unknowable, it must prove that contention, as I will explain when I discuss the statutory defenses with you.

      Plaintiff claims the product was designed in a defective manner. Defendant denies the product was designed in a defective manner.

      If the plaintiff has shown by a preponderance (greater weight) of the credible evidence that the product did not fulfill its intended or foreseeable functions safely, then the product was designed in a defective manner. But if the plaintiff fails to prove this, then the product was not designed in a defective manner.

2. Reasonable Safer Design
   Plaintiff claims that the product was defectively designed because it did not employ a reasonable safer design. To establish his/her claim of design defect, plaintiff must prove by the greater weight of the credible evidence that: 
   1. The product was designed in a defective manner.
      A design defect exists if the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable safer design and the omission of the alternative design renders the product not reasonably safe. 

      In proving a defect in the design of a product, plaintiff need not prove that the defendant manufacturer/seller knew that the accident in this case could happen as it did. Knowledge of the dangers of the product is legally placed upon the manufacturer/seller. The question for you to decide is whether, assuming the defendant(s) knew the dangers of the product, it (they) were nevertheless reasonably careful in the manner in which it (they) designed (marketed or sold) the product.

      Defendant on the other hand claims that the product should not have contained the reasonable safer design.

      You are to decide whether the safety benefits from altering the design as proposed by plaintiff were greater than the resulting costs or disadvantages caused by the proposed design, including any diminished usefulness or diminished safety. If the failure to incorporate a practical and technically feasible safer alternative design made the product not reasonably safe, then the product was designed in a defective manner.

      If, on the other hand, plaintiff has not proven there existed a practical and technically feasible safer alternative, or if you find that the product as designed was reasonably safe, then the product was not designed in a defective manner.

3. Risk-Utility Analysis
   Plaintiff claims that this product was designed in a defective manner. To establish this claim plaintiff must prove the following elements by the preponderance (greater weight) of the credible evidence that: 
   1. The product was designed in a defective manner.
      A design defect is established by proof that the risks or dangers of this product as designed outweigh its usefulness and, therefore, that a reasonably careful manufacturer or supplier would not have sold the product at all in the form in which it was sold. A product may not be considered reasonably safe unless the risks have been reduced to the greatest extent possible consistent with the product’s continued utility. 

      In deciding whether the dangers of the product outweigh its usefulness and, therefore that a reasonably careful manufacturer, seller or distributor would not have manufactured, sold or distributed the product at all in the form in which it was manufactured, sold or distributed, you must determine whether the defendant, who is supposed to know the harms the product would cause, acted in a reasonably careful manner in manufacturing/selling the product. To reach this conclusion you must consider and weigh the following factors:

      1. The usefulness and benefit of the product, as it was designed, to the user and the public as a whole. Was there a need that this product be designed in this specific way?
      2. The safety aspects of the product, that is, the likelihood or risk that the product as designed would cause injury and the probable seriousness of any injury which could have or should have been anticipated through the use of the product.
      3. Was a substitute design for this product feasible and practical?Was there available a substitute product at the time of manufacture, sale or distribution which would meet the same needs or perform the same functions as this product without containing the alleged defect? In other words, the existence of a more safely designed product diminishes the justification for using a challenged design in either the manufacture, sale or distribution of a particular product.
      4. The ability of the defendant(s) to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.
      5. The ability of foreseeable users to avoid danger by the exercise of care in the use of the product.
      6. The foreseeable user’s awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.

      In applying the risk-utility factors, remember that a product may not be considered reasonably safe unless the risks have been reduced to the greatest extent possible consistent with the product’s continued utility, that is, without impairing its usefulness and without making it too expensive for it to be reasonably marketable.

      In proving a defect in the design of a product, plaintiff need not prove that defendant manufacturer/seller knew that the accident in this case could happen as it did. Knowledge of the dangers of the products is legally placed upon the manufacturer/seller. The question for you to decide is whether, assuming the defendant(s) knew the dangers of the product, it was (they were) nevertheless reasonably careful in the manner in which it (they) designed (marketed or sold) the product.

      If the risks or dangers of the product outweigh its usefulness and therefore a reasonably careful manufacturer/seller/supplier would not have sold the product at all in the form in which it was sold, then the product was designed in a defective manner. But, on the other hand, if the plaintiff fails to prove this, then the product was not designed in a defective manner.

4. To subsections 1, 2, or 3 above, add the following:
   1. The defect existed before the product left the control of the defendant.
   2. When the accident happened the product was not being misused; or, that the product had not been substantially altered in a way that was not reasonably foreseeable.
      Plaintiff must prove that at the time of the accident the product was being used properly for its intended or reasonably foreseeable purposes and in an intended or reasonably foreseeable manner. To prove this, plaintiff must show that the product was not being misused in a way that was neither intended nor was reasonably foreseeable. In this case the defendant contends that at the time of the accident the product was being misused. 

      Plaintiff must prove that at the time of the accident the product was being used properly for its intended or reasonably foreseeable purposes and in an intended or reasonably foreseeable manner. To prove this, plaintiff must show that the product was not being misused in a way that was neither intended nor was reasonably foreseeable. In this case the defendant contends that at the time of the accident the product was being misused.

      In this case the defendant contends that the product was substantially altered.

      In considering this issue, you must determine whether there has been a misuse/abnormal use in purpose or manner or a substantial alteration to the product. If you find such to exist, you must determine whether that misuse/abnormal use or substantial alteration was reasonably foreseeable at the time the product left the control of the defendant(s).

      Reasonably foreseeable does not mean that the particular misuse/abnormal use or substantial alteration was actually foreseen or could have been actually foreseen by defendant at the time the product left his/her control.

      This is a test of objective foreseeability. You may consider the general experience within the industry as to what was known or could have been known with exercise of reasonable diligence when the product was manufactured, sold or distributed. Then decide whether a reasonably careful manufacturer, seller or distributor could have anticipated the misuse/abnormal use or substantial alteration of the product.

      If the alteration or misuse reasonably could have been anticipated, and if the substantial alteration or misuse/abnormal use made the product not reasonably safe, the defendant may be responsible. Plaintiff has the burden to show that a typical manufacturer or seller of the product could foresee that the product would be altered or that despite the alteration the original defect was nonetheless a cause of the injury.

      Plaintiff has the burden to show that a typical manufacturer or seller could foresee that the product would be misused for an improper purpose or in an improper manner — and that a reasonably careful manufacturer or seller should have taken steps to prevent injury from such misuses of the product.

   3. Plaintiff was a direct or foreseeable user, or the kind of person who might reasonably be expected to come into contact with the product.
   4. The defect was a proximate cause of the accident/injury.
      Proximate cause means that the design defect was a substantial factor which singly, or in combination with another cause or causes brought about the accident. Plaintiff need not prove that this same accident could have been anticipated so long as it was foreseeable that some significant harm could result from the design defect. If the defect does not add to the risk of the occurrence of this accident [or if there was an independent intervening cause of the accident] and therefore is not a contributing factor to the happening of the accident, then plaintiff has failed to establish that the design defect was a proximate cause of the accident. 

      An intervening cause is the act of an independent agency which destroys the causal connection between the effect of the defect in the product and the accident. To be an intervening cause the independent act must be the immediate and sole cause of the accident. In that event, liability will not be established because the defect is not a proximate cause of the injury.

      However, the defendant would not be relieved from liability for its defective product by the intervention of acts of third persons, if those acts were reasonably foreseeable. Where the intervention of third parties is reasonably foreseeable, then there may still be a substantial causal connection between the product defect and the accident.

      You must determine whether the intervening cause was an intervening cause that destroyed the substantial causal connection between the defective product and the accident. If it did, then the product defect was not a proximate cause of the injury.

      If plaintiff has proven each element, then you must find for the plaintiff. If, on the other hand, plaintiff has failed to prove any of the elements, then you must find for the defendant.