Feasible Alternative Test:
Consumer Expectation Test:
There are three types of defects that are covered by products liability law:
- manufacturing defects,
- design defects and,
- defects in the sufficiency of warnings that accompany a product.
Where manufacturing defects exist, the product is essentially not in the condition that the manufacturer intended it to be in when he sold it.
Strict liability generally applies in manufacturing defect cases. However, most courts will not allow strict liability for defects that the manufacturer could not have guarded against, although the manufacturer may be held liable once those dangers or defects are discovered. See
Please note that the manufacturer can avoid liability if he takes the following appropriate actions.
- If the danger can be eliminated through reasonable means, the manufacturer must do so before continuing to market the product.
- If the risk cannot be eliminated, the manufacturer must provide an appropriate warning of the danger or, alternatively, if the danger is so great that it overshadows the benefit that the product brings to consumers, the manufacturer must stop distributing the product.
- Manufacturers must warn people who bought the product before the danger was discovered of the recently discovered defects.
Where design defects exist, the product is in the condition intended by the manufacturer but the product was designed in a way that poses a risk to the plaintiff. See
Cases involving design defects will be governed by the rules of ordinary negligence and not strict liability.
When a court is presented with a design defects case, the court will analyze the defects based on one of three tests:
- The feasible alternative test
- The consumer expectation test, or
- A combined approach
Under the feasible alternative test, the jury tries to determine whether the defendant could have eliminated the risk to the plaintiff without seriously impacting the product’s purpose or price.
Some of the factors that the jury will look at are the usefulness of a product, the kind of product it is and the purpose it serves, the product’s marketability, the severity of the plaintiff’s injuries, whether or not the plaintiff could have anticipated the risk of using the product, and the price the company would have to incur in making design changes that would eliminate the risk. See
Under the consumer expectation test, the plaintiff must prove that the product did not perform as safely as an ordinary buyer would have expected. See
Under the combined approach, the plaintiff is not limited to either test. Rather he has the option of proving either the feasible alternative test or the consumer expectation test and, if he can satisfy either test, he will be able to recover from the defendant.
Case law is divided as to whether or not the consumer expectation test applies when the plaintiff was not the actual purchaser or user of the product.
In warning defect cases, the product is in the condition the manufacturer intended it to be in and the product does not present an unreasonable risk of injury when used properly. However, the product’s packaging or instruction book fails to warn the buyer of unexpected dangers and of dangers arising from foreseeable misuse. See
In order for warnings to be required, the danger must be one that a reasonable user would not have expected or anticipated. Therefore, obvious dangers do not require warning but more subtle dangers do.
Adequacy of the warning is determined by whether the warning specifies the risk that the product presents and whether a reason for the warning is given. Adequacy of instructions is determined by whether the instructions are consistent with how the product is to be used. Further, the warning must actually reach the people for whom the product poses a risk. For example, warnings illuminating the danger of using electrical appliances near pools of water must actually reach consumers.
Although warnings must be written in order to educate the ordinary user of the product, a supplier can factor in the knowledge of certain buyers. For example, warnings on explosives sold to explosives experts do not need to warn on dangers generally known to explosives experts.
However, there is an exception to this rule, and it applies to pharmaceutical products. Most jurisdictions hold that, where pharmaceuticals are involved, the appropriate warnings only have to reach the prescribing doctor and not the actual patient. That being the case, if a doctor fails to warn the patient of possible side effects to certain drugs, and a patient suffers harm as a result, he may be able to sue the doctor for malpractice but he will not be able to sue the pharmaceutical manufacturer.