Product Liability for Defective Design, Part 1

Product Liability for Defective Design – Part 1

Product liability claims are claims arising from defective products that cause injuries. Product liability law can be divided into three types of defects: defects in manufacturing, defects in design and failure to warn consumers of potential dangers in products. 

A manufacturing defect occurs when a product is manufactured incorrectly as a result of a problem in the manufacturing process. Think of a car which was made with a leaky gas tank. The car would have been safe and performed well if it had been produced properly. Failure to warn occurs when the product is manufactured properly and works properly, but fails to properly instruct the user on how to use it. The infamous McDonald’s “hot coffee” case, where in a plaintiff won millions of dollars because she burned herself, was a failure to warn case. McDonald’s was found to have failed to inform its consumers that its coffee was significantly hotter than other coffee sold in similar establishments. Failure to warn cases are also common with prescription drugs, as manufacturers have a responsibility to warn consumers of potential side effects.

In this presentation, we will discuss design defects. In design defects cases, the product is designed according to the manufacturer’s specifications. A design defect occurs when the product is unreasonably dangerous despite being manufactured properly. Unlike manufacturing defects, the law cannot determine if a product is defective based on flaws in the manufacturing process or by comparison with properly manufactured products.  In these cases, the entire line of products is manufactured uniformly, and has the same defect.

Consider the recent example of a line of smartphones with batteries that sometimes overheated and could catch fire. The problem was not due to errors in producing the phone, but in the way the battery was designed.  It was not a matter of a misshaped component or missing piece, but the thickness of the barrier around the flammable battery. So, liability in those cases would not be based on how the particular phone was produced, but showing that the entire line of smartphones, as designed, created a high level of risk to the consumer.

Another complicating factor is that no product is completely without risk, and any product can always be made safer than it is. However, if the law allowed for liability any time there was some way of making the product safer, the costs to the manufacturer and the consumer would increase dramatically. Without a defect in the manufacturing process, the law must devise a test which determines when the design is dangerous enough to create liability, without driving less expensive products out of the market.

The law has developed a number of ways of dealing with these complexities. One influential approach is from the Third Restatement on Torts, which adopted a risk-utility test for cases of design defect. Under the test, a product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by using a reasonable alternative design. A manufacturer will be liable if the failure to employ an alternative design makes the product not reasonably safe.[1]

Determining whether there is a reasonable alternative designed is a complex question, and involves economic and technological factors.

How can a plaintiff demonstrate that a design is defective and that a reasonable alternative exists?

First, he or she must show the risks of the defective product are foreseeable.[2] This means that the risks arise when products are used in ways it is reasonable for the seller to expect.  They are not expected to make the product safe for every conceivable way it might be used.[3]

So, for example, a company which manufactures leather couches should foresee risks stemming from the support structure of the sofa for people of different weights. However, it would not be reasonably foreseeable to expect people to use a sofa as a place to put a working toaster oven. The sofa company would not be liable if a fire broke out in such a situation, even though they could have made the material fire resistant and failed to do so.

Second, even if the plaintiff can make the case that the risk was foreseeable, it must also be shown that there could be a reasonable design alternative which would not pose the same risk.

Note that this does not require the plaintiff to produce a prototype of an alternative product to make the case for liability.[4] Instead, plaintiffs generally bring evidence from similar products on the market produced by other manufacturers. If it can be shown that another company uses an alternative design for the product which does not pose the same risks, this is a strong basis for establishing a safer alternative.

The key legal question will often be which products are considered similar enough to serve as a basis for comparison.

In Tyson v. General Motors, the plaintiff sustained serious injuries when the roof of the car she was travelling in collapsed after the car crashed and flipped over. The plaintiff maintained that the additional injuries she suffered from the collapse were due to a defectively designed roof, which failed to support the weight of the car after it flipped.

The court held that since car accidents are a frequent occurrence, the risk of roof collapse should be considered a foreseeable risk. Further, the court agreed with the plaintiff's contention that if the manufacturer had used a different support infrastructure, the car roof would have been safer for these types of accidents. The key question, however, was whether cars of similar type and price range tended to have roofs which are safer than the one involved in the accident.

So, while certain cars may be safer in cases of flipping over, and others- like convertibles- are less safe, the question of a safer design alternative is determined solely based on the safety features of similar cars.[5]

Aside from the reasonable design alternative, the other key element in the risk-utility test is the cost of increasing the safety of a product. Even if safer designs exist, if the cost of including the safety features is exorbitant, manufacturers may not be liable for following the less costly, less safe alternative.  In one case, a court held that a manufacturer of bullet-proof vests was not liable when a police officer was shot and killed while wearing the vest. The court dismissed the plaintiff’s argument that other bullet-proof vests on the market, which protected more of the body but were more expensive, meant that there was a reasonable design alternative.

Specifically, the judge pointed out that the larger vests were not only more costly, but also bulkier and less flexible. In other words, the feature that made the larger vests safer in one regard could make it less safe and less useful in other conditions. Furthermore, if manufacturers faced litigation for failing to include costly safety features, they may decide to only market the safest, most expensive products, limiting the usual trade-offs that consumers make in the course of deciding on a purchase.[6]

            In our continuation presentation, we will look at other approaches to defective design analyses and at the application of defective design analyses to prescription drugs.