Chapter Four | Tests of a Product Defect

How do we know if a product is defective in either design or manufacture? This area of law is very complex and no single rule or test will apply uniformly throughout the United States. Thus, courts will use one of the following: consumer expectations, assumption of risk analysis, or the risk-utility (risk-benefit) test.

Consumer Expectations Test

This test addresses the reasonable expectations of the consumer or purchaser. The test requires that the product must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.

This is the test discussed in Gray v. Manitowoc Co., Inc., which has its basis in Comment I of Section 402A of the Restatement of the Law of Torts.

Dean Prosser, the main author of the Restatement of the Law of Torts, restated the test as follows: “Would the ordinary consumer expect to encounter such a risk in using a product?”

Case Study: Gray v. Manitowoc Co, Inc.

Procedural Posture

Defendant manufacturer appealed from the judgment of United States District Court for the Southern District of Mississippi, which denied defendant’s motions for Judgment n.o.v. and for a new trial following a jury verdict in favor of plaintiffs husband and wife. Defendant claimed there was insufficient evidence to support recovery on plaintiffs’ theories of strict liability, implied warranty, and negligence.

Overview

Plaintiff husband was injured at his construction job when he was struck by the boom of a crane manufactured by defendant manufacturer. Plaintiffs husband and wife brought an action against defendant for strict liability in tort, implied warranty, and negligence, alleging that plaintiff’s injuries were caused by a design defect in the crane which prevented the crane operator from seeing to his left when the crane was operated in the “boom down” position. After a jury verdict for plaintiffs, the trial court denied defendant’s motions for judgment n.o.v. and for new trial. On appeal, the court determined that the defect of which plaintiffs complained was well known in the construction industry and thus was a patent or obvious hazard. Applying state law, the court held that a manufacturer’s liability for product defects under any of plaintiffs’ theories of liability could not, as a matter of law, be premised on the existence of an obvious hazard in a product which functioned properly for its intended purpose. As a result, the court reversed the judgment of the trial court and rendered judgment for defendant.

Outcome

The court reversed the judgment of the trial court and rendered judgment in favor of defendant manufacturer because it held that plaintiffs husband and wife had failed to establish liability for a design defect under theories of strict liability, implied warranty or negligence. The court held that the defect which plaintiffs complained of was obvious and within the expectation of the ordinary consumer who purchased it.

Note the similarity to the reasonable man test formulated in negligence cases, discussed earlier. Note also the intentional use of the word “ordinary” as a synonym for the word reasonable.

As will be seen in Chapter 9, this standard of consumer expectations is very close to that of merchantability found in the UCC, where in order to be merchantable, goods sold must be fair, average quality and fit for their ordinary purpose as determined by the ordinary or reasonable consumer.

Defects in products are of two general types: patent (or obvious) and latent (or hidden). Generally, courts apply the consumer expectations test more rigidly where a defect is latent because the consumer is completely unaware of any danger posed by a product and would therefore reasonably expect the product to be safe.

Brawner V. Liberty Industries, Inc.

Court of Appeals of Missouri, St. Louis District, Division One, 573 S.W.2d 376 (1978)

OPINION BY: SMITH, JUDGE

Plaintiff appeals the order of the trial court dismissing with prejudice his suit against defendants brought under a theory of strict liability in tort. We affirm.

Plaintiff is seven years old and was burned when he and Ray Middleton, Jr., also seven years old, removed the lid from a gasoline storage container and the gasoline ignited. The gasoline container was manufactured by defendant Liberty Industries, Inc., and purchased by Ray Middleton (presumably the younger Middleton boy’s father) from defendant National Food Stores, Inc. and its store manager defendant Ipellito. The allegation upon which plaintiff sought to invoke the strict liability doctrine was:

“That the failure of said gasoline storage container to be equipped with an opening device which would render same to unable to be opened by a child of seven years constitutes a defect in design and an unreasonably dangerous condition of said gasoline storage container.”

In Keener v. Dayton Electric Mfg. Co., 445 SW2d 362 (Mo. 1969), Missouri adopted the theory of strict liability in tort set forth in Restatement of Torts 2d, Sec. 402 A as follows:

“One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer or to his property, . . .”

In Missouri a defect in design can meet the requirement of “defective condition”. See Keener, supra; Higgins v. Paul Hardeman, Inc., 457 SW2d 943 (Mo. App. 1970).

Under Comments to Sec. 402 A para. (g), we find that a defective condition is a “condition not contemplated by the ultimate consumer which will be unreasonably dangerous to him.” Paragraph (i) of the Comments states that “Unreasonably dangerous” means “The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” A gasoline container which does not have a child- proof spout does not meet the definition of either defective or unreasonably dangerous. A manufacturer is not an insurer nor must he create a product which is accident proof. See Royal v. Black and Decker Manufacturing Co., 205 So.2d 307 (Fla. App. 1968); Vincer v. Esther Williams All-Aluminum Swimming Pool, 69 Wis. 2d 326, 230 NW2d 794 (1975); Belotte v. Zayre Corp. 352 A.2d 723, 116 N.H. 52 (1976). We have found no case, nor have we been cited to one, where a product made for adult use is deemed defective and unreasonably dangerous solely because it has not been made child-proof. The trial court correctly dismissed plaintiff’s petition.

Plaintiff objects to the trial court’s failure to allow plaintiff an opportunity to amend. Initially, the record does not indicate plaintiff ever requested such an opportunity. Secondly, plaintiff has not indicated what amendment he would or could make to state a cause of action.

Judgment affirmed. All concur.

Brawner makes an important point, noting that a manufacturer is not an insurer; that is, a manufacturer does not promise or guaranty that he has manufactured a product that is accident-proof or safe under all circumstances. In Brawner, the court held that a product that is made safe for adult use is not necessarily defective and unreasonably dangerous solely because it has not been made childproof. There is no reasonable expectation that the product would, in fact, be childproof. Remember, however, the concept of the environment of use found in Spruill. If it could be foreseen that the product might or would be used by a child, the application of the consumer expectations test might lead to the conclusion that the product was defective. In Keller v. Welles Department Store of Racine (a design defect case), the court noted:

“If the average consumer would not reasonably anticipate the dangerous condition of the product and not fully anticipate the attendant risk of injury, it would be unreasonably dangerous and defective.”

A problem with the consumer expectations test arises in design cases because the product may be too complex to generate any concrete consumer expectations. Consumer expectations about safety are often vague or will oscillate between “it will never happen to me” or “all products are poorly made.” There is thus an anomaly that since most consumers are highly skeptical about products, it might never be seen as a reasonable expectation that a product is safe!

Keller v. Welles Department Store of Racine

Court of Appeals of Wisconsin, 88 Wis. 2d 24; 276 N.W.2d 319 (1979)

OPINION BY: BODE

This is a products liability case. On October 21, 1971, two and one-half year old Stephen Keller was playing with two year old William Sperry in the basement of the Sperry home. The boys were playing with a gasoline can which had been filled with gasoline by Wayne Sperry, William’s father. The can was manufactured by Huffman Manufacturing Company, Inc. (Huffman) and was purchased by Wayne Sperry at Welles Department Store (Welles). The children were near a gas furnace and a hot water heater when gasoline, which they had poured from the can, was ignited. Stephen Keller was severely burned. Although Mrs. Sperry was home at the time of the accident, the two boys were unsupervised.

The sole issue before this court is whether the complaint states a cause of action against the manufacturer and retailer of a gasoline can, in either strict liability or negligence, for injuries sustained by Stephen Keller resulting from the ignition of gasoline poured from a gasoline can without a child-proof cap.

In this case, plaintiff attempts to state causes of action both in strict liability and in negligence. Each theory will be considered separately.

STRICT LIABILITY

In Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967), the Wisconsin Supreme Court adopted sec. 402A of Restatement, 2 Torts 2d, thereby accepting the concept of strict liability. The court immediately hastened to add, and has since reiterated, that strict liability makes a manufacturer neither an insurer nor absolutely liable for any harm resulting from the use of his product. On the contrary, to recover under the theory of strict liability the plaintiff must still prove:
(1) that the product was in defective condition when it left the possession or control of the seller, (2) that it was unreasonably dangerous to the user or consumer, (3) that the defect was a cause (a substantial factor) of the plaintiff’s injuries or damages, (4) that the seller engaged in the business of selling such product . . ., and (5) that the product was one which the seller expected to and did reach the user or consumer without substantial change in the condition it was when he sold it. Dippel, 37 Wis.2d at 460, 155 N.W.2d at 63.

To state a cause of action under strict liability then, the plaintiff must essentially allege that the product was defective and unreasonably dangerous. In the present case, the complaint clearly alleges that the defendants respectively manufactured or sold a gasoline can which was defective and unreasonably dangerous to children such as the plaintiff. The defect complained of was the failure to design the can with a cap sufficient to prevent children from removing it.

* * * The defendants contend that the motion to dismiss should have been granted because, as a matter of law, no jury could have reasonably concluded that the gasoline can was either defective or unreasonably dangerous. In support of their argument, the defendants rely on Vincer v. Esther Williams All-Aluminum Swimming Pool Co., 69 Wis.2d 326, 230 N.W.2d 794 (1975).

In Vincer, a young boy was visiting his grandparents’ home. While unsupervised, he fell into a swimming pool, remained there for a prolonged period of time, and sustained severe brain damage. The allegation was that a retractable ladder to the aboveground pool had been left in the down position, thereby providing easy access to the pool. The parents brought suit against the manufacturer of the swimming pool claiming that the pool was defectively designed in that it failed to provide a self-latching and closing gate to prevent entry to the pool. The Esther Williams Company demurred to the complaint for failure to state a cause of action. The trial court sustained the demurrer and the supreme court affirmed.

In its opinion, the court determined as a matter of law that the pool did not contain an unreasonably dangerous defect. The defendants believe the principles enunciated in Vincer mandate a similar outcome in the instant case. We disagree.
Comment g to sec. 402A of Restatement, 2 Torts 2d, states that a product is in a defective condition when “at the time it leaves the seller’s hands, [it is] in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.” While this comment serves as a guideline, there is no general definition for “defect,” and a decision on whether a defect exists must be made on a case-by-case basis. Jagmin v. Simonds Abrasive Co., 61 Wis.2d 60, 66, 211 N.W.2d 810, 813 (1973).

The Vincer court concluded that the swimming pool could not have been defective for failure to have the suggested gate because it had a retractable ladder which rendered the pool “as safe as it reasonably could be.” Vincer, 69 Wis.2d at 331, 230 N.W.2d at 798. The product at issue here, a gasoline can, was not as safe as was reasonably possible since the cap was not designed in such a way as to prevent young children from removing it. Equipping the gasoline can with a child-proof cap would have rendered the can substantially safer and entailed only a nominal additional cost. The practical value of such a cap may readily be seen since gasoline cans, while not intended to be used by children unable to appreciate the attendant dangers of gasoline, are customarily stored in places accessible to children.

The second element to be considered is whether the defective product, the gasoline can, was unreasonably dangerous. Comment i to sec. 402A of the Restatement, in part, describes an article as unreasonably dangerous when it is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” In Arbet v. Gussarson, 66 Wis.2d 551, 225 N.W.2d 431 (1975), the distinction between dangers which are latent or hidden and those which are obvious was explored in the context of this Restatement comment. The court observed that since an ordinary consumer would expect a Volkswagen to be less safe in an accident than a larger car, the small size would not make the Volkswagen unreasonably dangerous. Arbet itself dealt with a design defect in a Rambler Station Wagon which resulted in gasoline being retained in the passenger compartment. Since the danger arising from this defect was hidden rather than obvious, the supreme court reversed the trial court and upheld the complaint as against the demurrer of the car manufacturer.

Vincer noted that the patent-danger rule discussed in Arbet and stated that the Wisconsin test of whether a product contains an unreasonably dangerous defect was as follows: “If the average consumer would reasonably anticipate the dangerous condition of the product and fully appreciate the attendant risk of injury, it would not be unreasonably dangerous and defective.” Vincer, 69 Wis.2d at 332, 230 N.W.2d at 798. The court then concluded that the swimming pool did not contain an unreasonably dangerous defect for two reasons: first, because the absence of a self-latching gate was an obvious condition and second, because the average consumer would recognize the inherent danger of a retractable ladder in the down position when unsupervised children are about.

We think a different result is warranted in the present case. While the defect in the gasoline can was not concealed, this court is unable to conclude, as a matter of law, that the absence of a child-proof cap was an obvious as opposed to a latent condition. Nor do we believe the dangers to unsupervised children from a gasoline can without a child-proof cap are so apparent that the average consumer would be completely aware of them.

In this regard the factual circumstances in this case are clearly distinguishable from those in Vincer. It is common knowledge that children are attracted to swimming pools and that precautions must therefore be taken. See McWilliams v. Guzinski, 71 Wis.2d 57, 62, 237 N.W.2d 437, 439 (1976) (holding that an insufficiently guarded swimming pool in a residential area is an attractive nuisance to a four year old child). The danger to a young child from a swimming pool is obvious. The hazards to a child arising from a gasoline can without a child-proof cap are not so readily apparent. A child is not so clearly attracted to this product that an adult would immediately be put on guard to take precautions for the child’s safety.

Based on the foregoing discussion, we conclude the complaint stated a cause of action in strict liability.

Assumption of Risk Analysis

If a reasonable consumer knows about a risk and nevertheless proceeds to use a product, it may be said that the consumer has assumed the risk of such use.

These are the two elements of the defense of assumption of risk: knowledge of a risk, and voluntary acceptance of that risk. If there were a known risk (a patent or obvious risk), then a reasonable consumer would not have the expectation that the product is completely safe and would be expected to act accordingly. In that sense, the assumption of risk defense may be another formulation of the consumer expectations test.

The Risk-Utility Test or Risk-Benefit Test

This test looks to what a reasonable seller/manufacturer would do in the face of a product that carries with it a risk or a danger. It is essentially a negligence standard, based on the expected conduct of a reasonable manufacturer. This test has enormous ethical and social responsibility aspects! The risk-utility test places the burden of proof on a manufacturer in a design case to justify why a certain product was manufactured.

The risk-utility test often revolves around a simple concept: Whether the cost of making a safer product is greater than the risk from using the product in its present form. If the cost of making the change is greater than the risk created by not making the change then the utility of keeping the product as is outweighs the risk and the product is not defective. If the cost of making the change is minimal or is less than the risk created by not making the change, then the benefit or utility of keeping the product as is outweighed by the risk and the product is defective. This is obviously a balancing act – a judgment call – on the part of the trier of fact. In many cases, the cost of effecting any change will be the most significant or overriding factor in applying the risk- benefit/risk-utility test. The lower the cost, the more likely that a court or jury will find that the product without the change is in fact defective!

Case Study: Phillips v. Kimwood Machine Company

Overview

Plaintiff appealed a judgment of the lower court directing a verdict for defendant in product liability case. The court reversed and found that defendant did not warn plaintiff’s employer about possible problems that could arise because of the lack of safety devices on the sanding machine.

The court found, in determining whether a design is unreasonably dangerous, the fact finder must look at the surrounding circumstances and knowledge at the time the product was sold, and whether a reasonably prudent manufacturer would have designed and sold the product if he had known of the risks. Here, the court found the jury could find the product was unreasonably dangerous and defective because the manufacturer had knowledge of the product and inspected plaintiff’s machine before the accident. Further, the lack of warning to plaintiff of possible dangers associated with the use of the machine may have rendered the machine dangerously defective.

Outcome

The court reversed the judgment and remanded for a new trial because the jury could find the machine was dangerously defective, and the jury should decide whether the injury resulted from a design defect or misuse.

The common standards or factors used for determining risk-utility or risk-benefit are found in footnote number 13 in Phillips. They include:

• The usefulness and desirability of the product: There are some products that have little or no utility and would not even pass this ‘’threshold” test. Such products today might include assault weapons for skeet shooting, some large “home use” fireworks displays, or lawnmowers or boats without a ‘dead mans’ switch;
• The likelihood and probable seriousness of injury from the product as it is manufactured;
• The availability of a substitute product that would meet the same needs of the consumer and not be unsafe. If there are no substitute products, it might be difficult to find this particular product defective. Think of this in terms of an experimental drug used to treat cancer or AIDS. This drug may be very dangerous, but still may have a very high utility;
• The manufacturer’s ability to eliminate the danger without impairing the usefulness
  of the product or making the product too expensive. This is the essence of the standard from the standpoint of the manufacturer! If a product becomes “too expensive,” no one would be able to purchase it at all!;
• Given the nature of a danger, the user’s ability to avoid the danger—especially with proper warnings or instructions);
• The user’s anticipated awareness of the danger;
• The feasibility, on the part of the manufacturer, of spreading the risk by pricing decisions or through the purchase of insurance.

Under a risk-utility analysis, we are asked to determine that the product should never have been manufactured in the first place! Examples of such products might include the four foot high swimming pool with a diving/platform board attached; an assault weapon that the manufacturer advertised would be suitable for “backyard” shooting practice; or home-use bottle rockets (in effect, mini-mortars) for “safe use,” during the July Fourth holiday. Think about the risk-utility test in conjunction with the manufacturing of the Pinto automobile.

Phillips makes an important point in the following statement:

“A dangerously defective article would be one which a reasonable person would not put into the “stream of commerce” if he had knowledge of its harmful characteristics.”

This is a “presumed knowledge” standard that assumes that the manufacturer in fact knew of the danger or harmful characteristics of a product.

As noted, Phillips also suggests that if a change in a product could have been effected at a relatively small price, there is a good chance liability will be imposed for not making the change. This may be the most important consideration for a jury!

In sum, in employing the risk-utility test, manufacturers, first, and then courts must balance several factors:

• Product cost: the relative cost both to the manufacturer and the consumer of producing, distributing, and selling the original product as compared to the product with the alternative design;
• Technological feasibility of an alternative design (e.g., a child’s crib with larger slats, thus with smaller gaps);
• Time lag required to effect necessary changes or within which to implement the alternative design; (the shorter the time period needed to correct a problem, the more likely that a court would require the change to be made);
• The effect the new design has on product performance. Cars that travel at five miles per hour would be much safer but would they be practical or have any utility? Apple pie or coffee served by McDonald’s at room temperature would be much safer but would anyone want to purchase such a product?

Case Study: Liebeck v. McDonald’s

Overview

There is a lot of hype about the McDonalds’ scalding coffee case. No one is in favor of frivolous cases of outlandish results; however, it is important to understand some points that were not reported in most of the stories about the case. McDonalds coffee was not only hot, it was scalding — capable of almost instantaneous destruction of skin, flesh and muscle. Here’s the whole story.

Stella Liebeck of Albuquerque, New Mexico, was in the passenger seat of her grandson’s car when she was severely burned by McDonalds’ coffee in February 1992. Liebeck, 79 at the time, ordered coffee that was served in a styrofoam cup at the drive through window of a local McDonalds.

After receiving the order, the grandson pulled his car forward and stopped momentarily so that Liebeck could add cream and sugar to her coffee. (Critics of civil justice, who have pounced on this case, often charge that Liebeck was driving the car or that the vehicle was in motion when she spilled the coffee; neither is true.) Liebeck placed the cup between her knees and attempted to remove the plastic lid from the cup. As she removed the lid, the entire contents of the cup spilled into her lap.

The sweatpants Liebeck was wearing absorbed the coffee and held it next to her skin. A vascular surgeon determined that Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, and genital and groin areas.

She was hospitalized for eight days, during which time she underwent skin grafting. Liebeck, who also underwent debridement treatments, sought to settle her claim for $20,000, but McDonalds refused.

During discovery, McDonalds produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992. Some claims involved third-degree burns substantially similar to Liebecks. This history documented McDonalds’ knowledge about the extent and nature of this hazard.

McDonalds also said during discovery that, based on a consultants advice, it held its coffee at between 180 and 190 degrees Fahrenheit to maintain optimum taste. He admitted that he had not evaluated the safety ramifications at this temperature. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees.

Further, McDonalds’ quality assurance manager testified that the company actively enforces a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonalds coffee, at the temperature at which it was poured into styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonalds had no intention of reducing the “holding temperature” of its coffee.

Plaintiffs’ expert, a scholar in thermodynamics applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in two to seven seconds. Other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. Thus, if Liebeck’s spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn.

McDonalds asserted that customers buy coffee on their way to work or home, intending to consume it there. However, the company’s own research showed that customers intend to consume the coffee immediately while driving.

McDonalds also argued that consumers know coffee is hot and that its customers want it that way. The company admitted its customers were unaware that they could suffer third-degree burns from the coffee and that a statement on the side of the cup was not a “warning” but a “reminder” since the location of the writing would not warn customers of the hazard.

Outcome

The jury awarded Liebeck $200,000 in compensatory damages. This amount was reduced to $160,000 because the jury found Liebeck 20 percent at fault in the spill. The jury also awarded Liebeck $2.7 million in punitive damages, which equals about two days of McDonalds’ coffee sales.

Post-verdict investigation found that the temperature of coffee at the local Albuquerque McDonalds had dropped to 158 degrees Fahrenheit.

The trial court subsequently reduced the punitive award to $480,000 — or three times compensatory damages — even though the judge called McDonalds’ conduct reckless, callous and willful.

No one will ever know the final ending to this case.

The parties eventually entered into a secret settlement which has never been revealed to the public, despite the fact that this was a public case, litigated in public and subjected to extensive media reporting. Such secret settlements, after public trials, should not be condoned.

… excerpted from ATLA fact sheet. © 1995, 1996 by Consumer Attorneys of California Brought to you by – The ‘Lectric Law Library, The Net’s Finest Legal Resource For Legal Pros & Laypeople Alike. (http://www.lectlaw.com)

Manufacturers also may wish a court to take into account the benefits to the economy from continuing to provide a product in terms of employees hired, taxes paid or generated, charitable activities engaged in by a business, or other intangible benefits to society, e.g., the utility of an experimental vaccine during an epidemic. Note that in New Jersey and in many other states, courts will not permit the introduction of any evidence regarding any supposed benefits to society – with the possible exception of the benefits derived from an experimental drug.

Cigarette manufacturers have frequently attempted to introduce this type of “beneficial evidence” in cases involving potential liability (the most recent example were in Washington and Oregon) and cite to the “amazing work” of the various cigarette manufacturers or their substantial charitable foundations as evidence of their product’s utility or value to society.

Take careful note of the alternative theories under which a plaintiff can recover. The plaintiff can select either the consumer expectations test or the risk-utility test as a theory of recovery. If the plaintiff can prove either that the product fails the consumer expectations test or that its risk outweighed its utility, then the product would be defective.

Barker V. Lull Engineering Co.

Supreme Court of California, 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 (1978)

TOBRINER, JUDGE

Plaintiff was injured at a construction site while operating a high-lift loader manufactured by defendant. The loader tipped partially over, and plaintiff jumped off the loader and attempted to scramble away. He was injured when some lumber on the lift fell and hit him. Plaintiff claimed that the loader was defectively designed in several respects, including that it should have been equipped with “outriggers,” a roll bar, and seat belts. [Plaintiff] instituted the present tort action seeking to recover damages for his injuries. The jury returned a verdict in favor of defendants, and plaintiff appeals from the judgment entered upon that verdict, contending primarily that in view of this court’s decision in Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153, the trial court erred in instructing the jury “that strict liability for a defect in design of a product is based on a finding that the product was unreasonably dangerous for its intended use * * *.”
** *

As we noted in Cronin, the Restatement draftsmen adopted the “unreasonably dangerous” language primarily as a means of confining the application of strict tort liability to an article which is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” (Rest.2d Torts, ?402A, com. i.) In Cronin, however, we flatly rejected the suggestion that recovery in a products liability action should be permitted only if a product is more dangerous than contemplated by the average consumer, refusing to permit the low esteem in which the public might hold a dangerous product to diminish the manufacturer’s responsibility for injuries caused by that product. As we pointedly noted in Cronin, even if the “ordinary consumer” may have contemplated that Shopsmith lathes posed a risk of loosening their grip and letting a piece of wood strike the operator, “another Greenman” should not be denied recovery. (8 Cal.3d at p. 133, 104 Cal.Rptr. 433, 501 P.2d 1153.) Indeed, our decision in Luque v. McLean (1972) 8 Cal.3d 136, 104 Cal.Rptr. 443, 501 P.2d 1163 – decided the same day as Cronin – aptly reflects our disagreement with the restrictive implications of the Restatement formulation, for in Luque we held that a power rotary lawn mower with an unguarded hole could properly be found defective, in spite of the fact that the defect in the product was patent and hence in all probability within the reasonable contemplation of the ordinary consumer.

Thus, our rejection of the use of the “unreasonably dangerous” terminology in Cronin rested in part on a concern that a jury might interpret such an instruction, as the Restatement draftsman had indeed intended, as shielding a defendant from liability so long as the product did not fall below the ordinary consumer’s expectations as to the product’s safety (footnote excluded). As Luque demonstrates, the dangers posed by such a misconception by the jury extend to cases involving design defects as well as to actions involving manufacturing defects: indeed, the danger of confusion is perhaps more pronounced in design cases in which the manufacturer could frequently argue that its product satisfied ordinary consumer expectations since it was identical to other items of the same product line with which the consumer may well have been familiar.

Accordingly, contrary to defendants’ contention, the reasoning of Cronin does not dictate that the decision be confined to the manufacturing defect context. Indeed, in Cronin itself we expressly stated that our holding applied to design defects as well as to manufacturing defects (8 Cal.3d at pp. 134-135, 104 Cal.Rptr. 433, 501 P.2d 1153), and in Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 670, 117 Cal.Rptr. 1, 527 P.2d 353, we subsequently confirmed the impropriety of instructing a jury in the language of the “unreasonably dangerous” standard in a design defect case. (See also Foglio v. Western Auto Supply (1976) 56 Cal.App.3d 470, 475, 128 Cal.Rptr. 545.) Consequently, we conclude that the design defect instruction given in the instant case was erroneous.
** *

Defendants contend, however, that if Cronin is interpreted as precluding the use of the “unreasonably dangerous” language in defining a design defect, the jury in all such cases will inevitably be left without any guidance whatsoever in determining whether a product is defective in design or not. * * * Amicus California Trial Lawyer Association (CTLA) on behalf of the plaintiff responds by suggesting that the precise intent of our Cronin decision was to preclude a trial court from formulating any definition of “defect” in a product liability case, thus always leaving the definition of defect, as well as the application of such definition, to the jury. As we explain, neither of these contentions represents an accurate portrayal of the intent or effect of our Cronin decision.
** *

Our decision in Cronin did not mandate such confusion. Instead, by observing that the problem in defining defect might be alleviated by reference to the “cluster of useful precedents,” we intended to suggest that in drafting and evaluating instructions on this issue in a particular case, trial and appellate courts would be well advised to consider prior authorities involving similar defective product claims.
** *

In general, a manufacturing or production defect is readily identifiable because a defective product is one that differs from the manufacturer’s intended result or from other ostensibly identical units of the same product line. For example, when a product comes off the assembly line in a substandard condition it has incurred a manufacturing defect.

* * * A design defect, by contrast, cannot be identified simply by comparing the injury- producing product with the manufacturer’s plans or with other units of the same product line, since by definition the plans and all such units will reflect the same design. Rather than applying any sort of deviation-from-the-norm test in determining whether a product is defective in design for strict liability purposes, our cases have employed two alternative criteria in ascertaining, in Justice Traynor’s words, whether there is something “wrong, if not in the manufacturer’s manner of production, at least in his product.” (Traynor, The Ways and Meanings of Defective Products and Strict Liability, supra, 32 Tenn. L. Rev. 363, 366.)
First, our cases establish that a product may be found defective in design if the plaintiff demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. This initial standard, somewhat analogous to the Uniform Commercial Code’s warranty of fitness and merchantability (Cal.U.Com.Code, §2314), reflects the warranty heritage upon which California product liability doctrine in part rests. As we noted in Greenman, “implicit in [a product’s] presence on the market * * * [is] a representation that it [will] safely “do the jobs for which it was built.” (59 Cal.2d at p. 64, 27 Cal.Rptr. at p. 701, 377 P.2d at p. 901.) When a product fails to satisfy such ordinary consumer expectations as to safety in its intended or reasonably foreseeable operation, a manufacturer is strictly liable for resulting injuries. * * * Under this standard, an injured plaintiff will frequently be able to demonstrate the defectiveness of a product by resort to circumstantial evidence, even when the accident itself precludes identification of the specific defect at fault. * * *

As Professor Wade has pointed out, however, the expectations of the ordinary consumer cannot be viewed as the exclusive yardstick for evaluating design defectiveness because “[i]n many situations * * * the consumer would not know what to expect, because he would have no idea how safe the product could be made.” (Wade, On the Nature of Strict Tort Liability for Products, supra, 44 Miss.L.J. 825, 829.) Numerous California decisions have implicitly recognized this fact and have made clear, through varying linguistic formulations, that a product may be found defective in design, even if it satisfies ordinary consumer expectations, if through hindsight the jury determines that the product’s design embodies “excessive preventable danger,” or, in other words, if the jury finds that the risk of danger inherent in the challenged design outweighs the benefits of such design. * * *

A review of past cases indicates that in evaluating the adequacy of a product’s design pursuant to this latter standard, a jury may consider, among other relevant factors, the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design. * * *
Although our cases have thus recognized a variety of considerations that may be relevant to the determination of the adequacy of a product’s design, past authorities have generally not devoted much attention to the appropriate allocation of the burden of proof with respect to these matters. * * * The allocation of such burden is particularly significant in this context inasmuch as this court’s product liability decisions, from Greenman to Cronin, have repeatedly emphasized that one of the principal purposes behind the strict product liability doctrine is to relieve an injured plaintiff of many of the onerous evidentiary burdens inherent in a negligence cause of action. Because most of the evidentiary matters which may be relevant to the determination of the adequacy of a product’s design under the “risk- benefit” standard — e.g., the feasibility and cost of alternative designs are similar to issues typically presented in a negligent design case and involve technical matters peculiarly within the knowledge of the manufacturer, we conclude that once the plaintiff makes a prima facie showing that the injury was proximately caused by the product’s design, the burden should appropriately shift to the defendant to prove, in light of the relevant factors, that the product is not defective. Moreover, inasmuch as this conclusion flows from our determination that the fundamental public policies embraced in Greenman dictate that a manufacturer who seeks to escape liability for an injury proximately caused by its product’s design on a risk-benefit theory should bear the burden of persuading the trier of fact that its product should not be judged defective, the defendant’s burden is one affecting the burden of proof, rather than simply the burden of producing evidence. * * *

Thus, to reiterate, a product may be found defective in design, so as to subject a manufacturer to strict liability for resulting injuries, under either of two alternative tests. First, a product may be found defective in design if the plaintiff establishes that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Second, a product may alternatively be found defective in design if the plaintiff demonstrates that the product’s design proximately caused his injury and the defendant fails to establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design.
** *

Finally, contrary to the suggestion of amicus CTLA, an instruction which advises the jury that it may evaluate the adequacy of a product’s design by weighing the benefits of the challenged design against the risk of danger inherent in such design is not simply the equivalent of an instruction which requires the jury to determine whether the manufacturer was negligent in designing the product. (See, e.g., Wade, On the Nature of Strict Tort Liability for Products, supra, 44 Miss.L.J. 825, 835.) It is true, of course, that in many cases proof that a product is defective in design may also demonstrate that the manufacturer was negligent in choosing such a design. As we have indicated, however, in a strict liability case, as contrasted with a negligent design action, the jury’s focus is properly directed to the condition of the product itself, and not to the reasonableness of the manufacturer’s conduct.

** *

Thus, the fact that the manufacturer took reasonable precautions in an attempt to design a safe product or otherwise acted as a reasonably prudent manufacturer would have under the circumstances, while perhaps absolving the manufacturer of liability under a negligence theory, will not preclude the imposition of liability under strict liability principles if, upon hindsight, the trier of fact concludes that the product’s design is unsafe to consumers, users, or bystanders. * * *

The judgment in favor of defendants is reversed.

Thus, a product may be found defective in design even if it satisfies normal consumer expectations, if through hindsight, the jury determines that the design embodies excessive preventable danger, or if the risk of danger, inherent in the challenged design, outweighs the benefits of the design.

Barker states that the burden of proof is shifted to the manufacturer, once the plaintiff proves that a design defect caused the injury. Under the risk-utility test, the defendant must then prove that on balance, the benefits of the challenged design outweigh the risk of danger in such a design.

Note that Barker is contrary to the view that the plaintiff must present evidence of a feasible, alternative, and safer design and places the burden of proof on the defendant-manufacturer. The shifting in the burden of proof to the defendant seems to be in line with the general philosophy of strict products liability cases which places the burden on the party best able to pay or absorb this cost. Thus, Barker may represent the future trend in products liability cases that places the clear burden on the manufacturer-defendant rather than on the person who suffered injury.

Questions

1. Manitowoc Co, Inc., the defendant, is a manufacturer of cranes. Gray, the plaintiff, was injured at his construction job when he was struck by the boom of the crane man- ufactured by the defendant. Plaintiff asserted that the design of the crane prevented the crane operator from seeing to his left when the crane was operated in the boom down position.
   1. Does the consumer expectations test apply to this case? If so, how?
   2. Was the product defective?
   3. Is Manitowoc Co, Inc. liable?
2. Brawner, the seven year old child of the plaintiff, was burned when he removed the lid from a gasoline storage container that ignited shortly after. The container was manufactured by Liberty Industries Inc., the defendant. Plaintiff brought suit under the claim that the product was defective because it lacked a mechanism to prevent it being opened by a seven year old.
   1. How does the consumer expectations test come into play?
   2. Was the container defective?
   3. Does the concept of environment of use apply to this case? Is so, how?
   4. Is Liberty Industries Inc. liable?
3. Two and a half year old Stephen Keller was playing with his 2 year old friend in the basement of his friend’s home. They were playing with a gasoline can, which had been filled with gasoline by the friend’s father. The can was manufactured by Huffman Manufacturing Company Inc. and sold by Welles Department Store to the friend’s father. The children were near a gas furnace and a hot water heater when the gasoline was ignited.
   1. Would the average consumer reasonably anticipate the dangerous condition of the product?
   2. Does the doctrine of strict liability or negligence apply? If so, how?
   3. Is Welles Department Store liable? Is Huffman Manufacturing Company Inc. liable?
4. What is the flaw with the consumer expectation test? What is the alternative?
5. Kimwood Machine Company, the defendant, manufactures sanding machines. The defendants did not warn the plaintiff’s employer about possible problems that could arise because of the lack of safety devices on the machine.
   1. Did the lack of a warning make the product defective?
   2. Does the risk-benefit/risk utility test apply? If so, how?
   3. Is Kimwood Machine Company liable?
6. Stella Liebeck, the plaintiff, was in the passenger seat of her grandson’s car when she was severely burned by McDonald’s coffee in February 1992. The coffee was not only hot; it was scalding, capable of almost instantaneous destruction of skin, flesh, and muscle. A surgeon determined that Liebeck suffered full thickness burns on over 6% of her body, in particular, her inner thighs, perineum, buttocks, and genital and groin area.
   1. How does the consumer expectations test apply?
   2. Does the risk-utility test apply? If so, how?
   3. Was the coffee defective?
   4. Is McDonald’s liable?
7. The plaintiff, Barker, was injured at a construction site while operating a high-lift loader manufactured by defendant, Lull Engineering Co. The loader ripped open and the plaintiff jumped off the loader. Consequently, he was injured when some lumber fell on him. Plaintiff asserted that the product was defectively designed due to its lack of the following: outrigger, roll bar, and seat belts.
   1. Did the design defect cause the injury?
   2. Where did the shift of burden move to?
   3. How did the risk-benefit test apply?
   4. Is Lull Engineering liable?