Chapter Two | Types of Defect

A production or manufacturing defect exists “if the product differs from a manufacturer’s intended result or if the product differs from apparently identical products from the same manufacturer.” (A California judge’s instruction to a jury regarding the nature of a manufacturing defect…)

There are various formulations concerning a production or manufacturing defect:

• A product which comes off the assembly line in a substandard condition in comparison with other identical units; called the deviation from the norm test—sometimes termed as the Lee Test.
• Manufacturing defects are imperfections that occur in a typically small percentage of products of a given design as a result of the failure in the manufacturing process. If there are a large number of individual defects, this will be seen as a design defect and not an isolated manufacturing or production defect.
• Products that do not conform to their intended design;
• Products that do not conform to the great majority of manufactured products within the design;
• Products that are misconstructed or misassembled;
• Defects which result from a mishap in the manufacturing process or from improper workmanship, or because defective materials were used. This standard is even applied to component parts assembled by the primary manufacturer;
• Products which do not conform to the manufacturers’ own specifications.

In a large majority of manufacturing defect cases, courts use a simple test to determine if a product is defective: the reasonable expectations of the buyer/consumer. Let’s look at one small wrinkle to this test!

Hunt v. Ferguson-Paulus Enterprises

Supreme Court of Oregon Department Two

243 Ore. 546; 415 P.2d 13 (1966)

OPINION BY: LUSK, JUDGE

The plaintiff bought a cherry pie from the defendant through a vending machine owned and maintained by the defendant. On biting into the pie one of plaintiff’s teeth was broken when it encountered a cherry pit. He brought this action to recover damages for the injury, alleging breach of warranty of fitness of the pie for human consumption. In a trial to the court without a jury the court found for the defendant and plaintiff has appealed.

Plaintiff assigns error to the court’s failure to sustain his objection to a general finding entered in favor of the defendant and to the court’s refusal to enter special findings requested by the plaintiff, among which the following presents the plaintiff’s theory of the applicable law:

“Cherries in cherry pies are normally pit-less, and are offered to the public in that condition, and plaintiff did not reasonably expect to find a pit in the cherry pie and the defendants [sic] had no knowledge that any pits were baked into pies offered by it for sale.”

Plaintiff also requested the following conclusion of law which the court refused to make:

“That a consumer of a piece of cherry pie purchased from a vending machine to be consumed at the time of sale, does not reasonably expect to find a cherry pit in such pie.”

Under ORS 72.3150 if the cherry pie purchased by the plaintiff from the defendant was not reasonably fit for human consumption because of the presence of the cherry pit there was a breach of warranty and plaintiff was entitled to recover his damages thereby caused.

In the consideration of similar cases some of the courts have drawn a distinction between injury caused by spoiled, impure, or contaminated food or food containing a foreign substance, and injury caused by a substance natural to the product sold. In the latter class of cases, these courts hold there is no liability on the part of the dispenser of the food. Thus in the leading case of Mix v. Ingersoll Candy Co., 6 Cal 2d 674, 59 P.2d 144, the court held that a patron of a restaurant who ordered and paid for chicken pie, which contained a sharp sliver or fragment of chicken bone, and was injured as a result of swallowing the bone, had no cause of action against the restaurateur either for breach of warranty or negligence. Referring to cases in which recovery had been allowed the court said:

“All of the cases are instances in which the food was found not to be reasonably fit for human consumption, either by reason of the presence of a foreign substance, or an impure and noxious condition of the food itself, such as for example, glass, stones, wires or nails in the food served, or tainted, decayed, diseased, or infected meats or vegetables.”

The court went on to say that:

“* * * despite the fact that a chicken bone may occasionally be encountered in a chicken pie, such chicken pie, in the absence of some further defect, is reasonably fit for human consumption. Bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on his guard against the presence of such bones.”

Further the court said:

“Certainly no liability would attach to a restaurant keeper for the serving of a T-bone steak, or a beef stew, which contained a bone natural to the type of meat served, or if a fish dish should contain a fish bone, or if a cherry pie should contain a cherry stone—although it be admitted that an ideal cherry pie would be stoneless.”

The so-called “foreign-natural” test of the Mix case has been applied in the following cases: Silva v. F.W. Woolworth Co., 28 Cal App 2d 649, 83 P.2d 76 (turkey bone in “special plate” of roast turkey); Musso v. Picadilly Cafeterias, Inc. (La App), 178 S2d 421 (cherry pit in a cherry pie); Courter v. Dilbert Bros., Inc., 186 NYS2d (App Div) 334 (prune pit in prune butter); Adams v. Tea Co., 251 NC 565, 112 SE2d 92 (crystallized grain of corn in cornflakes); Webster v. Blue Ship Tea Room, Inc., 347 Mass 421, 198 NE2d 309 (fish bone in a fish chowder).

Other courts have rejected the so-called foreign-natural test in favor of what is known as the “reasonable expectation” test, among them the Supreme Court of Wisconsin, which, in Betehia v. Cape Cod Corp., 10 Wis. 2d 323, 103 NW2d 64, held that a person who was injured by a chicken bone in a chicken sandwich served to him in a restaurant, could recover for his injury either for breach of an implied warranty or for negligence. “There is a distinction,” the court said, “between what a consumer expects to find in a fish stick and in a baked or fried fish, or in a chicken sandwich made from sliced white meat and in roast chicken. The test should be what is reasonably expected by the consumer in the food as served, not what might be natural to the ingredients of that food prior to preparation. What is to be reasonably expected by the consumer is a jury question in most cases; at least, we cannot say as a matter of law that a patron of a restaurant must expect a bone in a chicken sandwich either because chicken bones are occasionally found there or are natural to chicken.” 10 Wis. 2d at 331-332.

Among other decisions adopting the reasonable expectation test are: Bonenberger v. Pittsburgh Mercantile Co., 345 Pa 559, 28 A2d 913, 143 ALR 1417, Annotation at page 1421 (oyster shell in canned oysters used in making oyster stew); Bryer v. Rath Packing Co., 221 Md. 105, 156 A2d 442, 77 ALR 2d 1 (chicken bone in chow mein); Varone v. Calarco, 199 NYS2d 755 (struvite in canned tuna).

Other decisions upon the question may be found reviewed in Hursh, American Law of Products Liability, §§ 12.33-12.35. See, also, the Annotation, 77 ALR 2d 7, at 79. The foreign-natural test is criticized in Dickerson, Products Liability and the Food Consumer 184-189, and in an article by Mitchel J. Ezer, “The Impact of the Uniform Commercial Code on the California Law of Sales Warranties,” 8 UCLA California Law Review 281.

In view of the judgment for the defendant, we are not required in this case to make a choice between the two rules. Under the foreign-natural test the plaintiff would be barred from recovery as a matter of law. The reasonable expectation test calls for determination of a question of fact: Betehia v. Cape Cod Corp.; Bonenberger v. Pittsburgh Mercantile Co.; Bryer v. Rath Packing Co.; Dickerson, Products Liability and the Food Consumer, all supra. The court has found the fact in favor of the defendant and this court has no power to disturb the finding.

Plaintiff argues that the court based its decision on the foreign-natural rule. The court did so indicate in a letter to counsel announcing its decision, but in the same letter the court also spoke of what can be “reasonably anticipated and guarded against by the consumer” and said that the question was a “mixed question of law and facts.” Further, the court, as above stated, refused to make a finding of fact requested by the plaintiff that the plaintiff “did not reasonably expect to find a pit in the cherry pie.” The general finding entered by the court covered all the issues of fact in the case.

Plaintiff also assigns error to the admission in evidence of defendant’s Exhibit A, a pamphlet issued by the United States Department of Agriculture entitled “United States Standards for grades of Frozen Red Tart Pitted Cherries.” It is sufficient to say that on the trial plaintiff’s counsel stipulated to the admission of the exhibit.

There are no other assignments of error and the judgment is affirmed.

In summary, Hunt discussed both the foreign-natural test, i.e., the Mix test, and the reasonable expectation test that is applied to impure food cases. The court also distinguished between an injury caused by “spoiled, impure, or contaminated food or food containing a foreign substance, and injury caused by a substance natural to the product sold.”

After reading Hunt, which test is more favorable to plaintiffs? To manufacturers? What test seems most reasonable to you?

Design defects arise where the design of the product makes the product defective and unreasonably dangerous. Courts will use industry standards, trade customs or trade usage, applicable manufacturing codes, or consensus industry standards in order to determine the nature of any design defect. Design defect cases will always require expert proof, which must be authenticated, and the expert him/herself must be qualified to give objective/fact testimony or render a professional opinion. This requirement implicates what is called the Daubert Rule and requires a judge to act as a judicial gatekeeper in order to assure that any alleged expert testimony meets a basic level of fact based on real and not junk science.

A Few Words About The Use Of Expert Witnesses

Proof of a defect in a product may be shown at trial through the testimony of an expert witness, a witness who has knowledge of a technical subject. Technical experts can give opinions on scientific information that is beyond the general knowledge of the jurors. Because of his or her education, training or experience, an expert witness’s testimony may help the jury understand complex technical issues. Scientific methodology is based on creating a supposition or premise and testing it to see if experiments support the supposition. If they do, the supposition is regarded as a valid scientific theory and may be presented to the jury as the trier of facts.

Junk Science

Product liability cases in the 1980s and early 1990s were often characterized by the “battle of the experts.” Experts for both sides presented opinions that in many cases contradicted one another, leaving the jury to pick between the experts. It appeared that expert testimony was increasingly based on what some came to call junk science. Junk science refers to novel scientific theories that are based on biased data or inferences that are not scientifically proven.

Daubert Test Or Standard For Expert Testimony

In 1993, the United States Supreme Court established principles for the admission of expert testimony in the landmark case Daubert v. Merrell Dow Pharmaceuticals. The court stated that trial judges should act as gatekeepers and exclude testimony based on junk science. Daubert determined that scientific evidence had to be both relevant and reliable.

The court listed four standards for admitting scientific evidence:

• Has the theory been tested?
• Has the theory been subjected to peer review and publication?
• What is the known or potential rate of error and are there controlling standards?
• Does the scientific community generally accept the theory?

The trial court must apply these standards in deciding whether to admit expert testimony.

State of the art testimony will be utilized to determine the technology available at the time the product left the manufacturer’s hand in order to determine if a design defect exists.

Design defect cases recognize the fact that there is a risk involved in the production of many products. Then the question is asked: Did the manufacturer take reasonable steps to correct or at least minimize the risk?In determining the existence of a design defect, courts must necessarily balance the economic interests of the manufacturer against the safety interests of the consumer. Courts hold that the proper standard to be applied is as follows:

“A product is defective because of its design and unreasonably dangerous if the reasonable seller, having been made aware of the danger involved, would not sell the product.”

In many cases, courts will inquire whether or not the hazard, danger, or risk could have been obviated at a slight cost. (For example, selling or manufacturing a lawnmower without a dead man’s (cut-off) switch which could have been added or supplied for less than $5.00 – Burch v. Sears Roebuck.)

New Jersey follows the majority view. New Jersey courts require a plaintiff to prove that there is a “practical and technically feasible” alternative design that will not impair the core function of the product or unreasonably increase its cost.

The Boatland case (below) discusses the issues of feasibility (“the more scientifically and economically feasible the alternative was, the more likely that a jury may find that the product was defectively designed.”) This may be shown by proving that a safer alternative was available at the time of manufacture; or that there was evidence of the scientific and economic capacity to develop safer alternatives. Boatland also discusses “state of the art” evidence. After reading the case, which opinion (majority or dissent) seems more persuasive to you?

Today, many courts have imposed a duty on the part of a manufacturer to recall and/or possibly repair products which were not necessarily defective when they were designed
but which may have become defective at a later date, perhaps through obsolescence or the passing of time—especially if there “is a substantial risk of harm to a large number of persons and if the change required to make the product safer or substantially more safe would be a minimal one.” (See Daubert v. Merrell Dow Pharmaceuticals).

Boatland of Houston v. Bailey

Supreme Court of Texas

609 S.W.2d 743 (1980) 26 U.S. 310 (1945)

OPINION BY: McGEE, JUDGE

This is a product defect case involving an alleged defect in the design of a 16-foot bass boat. The plaintiffs were the widow and adult children of Samuel Bailey, who was killed in a boating accident in May of 1973. They sued under the wrongful death statute, alleging that Samuel Bailey’s death occurred because the boat he was operating was defectively designed. The boat had struck a partially submerged tree stump, and Bailey was thrown into the water. With its motor still running, the boat turned sharply and circled back toward the stump. Bailey was killed by the propeller, but it is unclear whether he was struck when first thrown out or after the boat circled back toward him.

Bailey’s wife and children sought damages under a strict liability theory from the boat’s seller, Boatland of Houston, Inc. At trial, they urged several reasons why the boat was defectively designed, including inadequate seating and control area arrangement, unsafe stick steering and throttle design, and the failure of the motor to automatically turn off when Bailey was thrown from the boat.

The trial court rendered a take-nothing judgment based on the jury’s failure to find that the boat was defective and findings favorable to Boatland on several defensive issues. The court of civil appeals, with one justice dissenting, reversed and remanded the cause for a new trial because of errors in the admission of evidence and the submission of the defensive issues. We reverse the judgment of the court of civil appeals and affirm that of the trial court.

EVIDENCE OF DESIGN DEFECT

* * * In Turner v. General Motors Corp., this court discussed the strict liability standard of “defectiveness” as applied in design defect cases. Whether a product was defectively designed requires a balancing by the jury of its utility against the likelihood of and gravity of injury from its use. The jury may consider many factors before deciding whether a product’s usefulness or desirability is outweighed by its risks. Their finding on defectiveness may be influenced by evidence of a safer design that would have prevented the injury. Because defectiveness of the product in question is determined in relation to safer alternatives, the fact that its risks could be diminished easily or cheaply may greatly influence the outcome of the case.

Whether a product was defectively designed must be judged against the technological context existing at the time of its manufacture. Thus, when the plaintiff alleges that a product was defectively designed because it lacked a specific feature, attention may become focused on the feasibility of that feature the capacity to provide the feature without greatly increasing the product’s cost or impairing usefulness. This feasibility is a relative, not an absolute, concept; the more scientifically and economically feasible the alternative was, the more likely that a jury may find that the product was defectively designed. A plaintiff may advance the argument that a safer alternative was feasible with evidence that it was in actual use or was available at the time of manufacture. Feasibility may also be shown with evidence of the scientific and economic capacity to develop the safer alternative. Thus, evidence of the actual use of, or capacity to use, safer alternatives is relevant insofar as it depicts the available scientific knowledge and the practicalities of applying that knowledge to a product’s design.

As part of their case-in-chief, the Baileys produced evidence of the scientific and economic feasibility of a design that would have caused the boat’s motor to automatically shut off when Bailey fell out. According to the Baileys, the boat’s design should have incorporated an automatic cut-off system or the boat should have been equipped with a safety device known as a “kill switch.”

The deposition of J. C. Nessmith, president of Boatland, was read, in which he stated that there were presently several types of “kill switches” available, and that they were now installed by Boatland when it assembled and sold bass boats.

The deposition of Bill Smith, who was a passenger in the boat with Bailey at the time of the accident, was also read. Smith had not heard of automatic kill switches before the accident, but afterwards he got one for his own boat.

The deposition testimony of George Horton, the inventor of a kill switch designed for open- top carriers, was also introduced. Horton began developing his “Quick Kill” in November of 1972 and applied for a patent in January of 1973. According to Horton, his invention required no breakthroughs in the state of the art of manufacturing or production. He stated that his invention was simple: a lanyard connects the operator’s body to a device that fits over the ignition key. If the operator moves, the lanyard is pulled, the device rotates, and the ignition switch turns off. When he began to market his “Quick Kill,” the response by boat dealers was very positive, which Horton perceived to be due to the filling of a recognized need. He considered the kill switch to be a necessary safety device for a bass boat with stick steering. If the kill switch were hooked up and the operator thrown out, the killing of the motor would prevent the boat from circling back where it came from. Horton also testified that for 30 years racing boats had been using various types of kill switches. Thus, the concept of kill switches was not new.

Robert Swint, a NASA employee who worked with human factors engineering, testified that he had tested a bass boat similar to Bailey’s. He concluded that the boat was deficient for several reasons and that these deficiencies played a part in Bailey’s death. According to Swint, when the boat struck a submerged object and its operator became incapacitated, the seating and control arrangement caused the boat to go into a hard turn. If the operator were thrown out, the boat was capable of coming back and hitting him. Swint also stated that a kill switch would have cut off the engine and the motor would not have been operative when it hit Bailey.

Jim Buller, who was fishing in the area when Bailey was killed, testified that his own boat did not have a kill switch at that time, but he ordered one within “a matter of days.”

Boatland elicited evidence to rebut the Baileys’ evidence of the feasibility of equipping boats with kill switches or similar devices in March of 1973, when the boat was assembled and sold.

In response to the Baileys’ evidence that the “Quick Kill” was readily available at the time of trial, Horton stated on cross-examination that until he obtained the patent for his “Quick Kill” in 1974 he kept the idea to himself. Before he began to manufacture them, he investigated the market for competitive devices and found none. The only applications of the automatic engine shut-off concept in use at the time were homemade, such as on racing boats. He first became aware of competitive devices in August of 1974.

Boatland introduced other evidence to show that kill switches were not available when Bailey’s boat was sold. The deposition of Jimmy Wood, a game warden, was read in which he stated that he first became aware of kill switches in 1975. He testified that he had a “Quick Kill” on his boat since 1976, and he thought it was the only kill switch made. Willis Hudson, who manufactured the boat operated by Bailey, testified that he first became aware of kill switches in 1974 or 1975 and to his knowledge no such thing was available before then. Ralph Cornelius, the vice-president of a marine appliance dealership, testified that kill switches were not available in 1973. The first kill switch he saw to be sold was in 1974, although homemade “crash throttles” or foot buttons had long been in use.

* * * After considering the feasibility and effectiveness of an alternative design and other factors such as the utility and risk, the jury found that the boat was not defective. The trial court rendered judgment for Boatland. The Baileys complained on appeal that the trial court erred in admitting Boatland’s evidence that kill switches were unavailable when Bailey’s boat was assembled and sold. The court of civil appeals agreed, holding that the evidence was material only to the care exercised by Boatland and thus irrelevant in a strict liability case.

In its appeal to this court, Boatland contends that the court of civil appeals misconstrued the nature and purpose of its evidence. According to Boatland, when the Baileys introduced evidence that kill switches were a feasible safety alternative, Boatland was entitled to introduce evidence that kill switches were not yet available when Bailey’s boat was sold and thus were not a feasible design alternative at that time.

The primary dispute concerning the feasibility of an alternative design for Bailey’s boat was the “state of the art” when the boat was sold. The admissibility and effect of “state of the art” evidence has been a subject of controversy in both negligence and strict product liability cases. In negligence cases, the reasonableness of the defendant’s conduct in placing the product on the market is in issue. Evidence of industry customs at the time of manufacture may be offered by either party for the purpose of comparing the defendant’s conduct with industry customs. An offer of evidence of the defendant’s compliance with custom to rebut evidence of its negligence has been described as the “state of the art defense.” In this connection, it is argued that the state of the art is equivalent to industry custom and is relevant only to the issue of the defendant’s negligence and irrelevant to a strict liability theory of recovery.

In our view, custom “…is distinguishable from “state of the art.” The state of the art with respect to a particular product refers to the technological environment at the time of its manufacture. This technological environment includes the scientific knowledge, economic feasibility, and the practicalities of implementation when the product was manufactured. Evidence of this nature is important in determining whether a safer design was feasible. The limitations imposed by the state of the art at the time of manufacture may affect the feasibility of a safer design. Evidence of the state of the art in design defect cases has been discussed and held admissible in other jurisdictions. In this case, the evidence advanced by both parties was relevant to the feasibility of designing bass boats to shut off automatically if the operator fell out, or more specifically, the feasibility of equipping bass boats with safety switches.

The Baileys offered state of the art evidence to establish the feasibility of a more safely designed boat: They established that when Bailey’s boat was sold in 1973, the general concept of a boat designed so that its motor would automatically cut off had been applied for years on racing boats. One kill switch, the “Quick Kill,” was invented at that time and required no mechanical breakthrough. The Baileys were also allowed to show that other kill switches were presently in use and that the defendant itself presently installed them.

Logically, the plaintiff’s strongest evidence of feasibility of an alternative design is its actual use by the defendant or others at the time of manufacture. Even if a safer alternative was not being used, evidence that it was available, known about, or capable of being developed is relevant in determining its feasibility. In contrast, the defendant’s strongest rebuttal evidence is that a particular design alternative was impossible due to the state of the art. Yet the defendant’s ability to rebut the plaintiff’s evidence is not limited to showing that a particular alternative was impossible; it is entitled to rebut the plaintiff’s evidence of feasibility with evidence of limitations on feasibility. A suggested alternative may be invented or discovered but not be feasible for use because of the time necessary for its application and implementation. Also, a suggested alternative may be available, but impractical for reasons such as greatly increased cost or impairment of the product’s usefulness. When the plaintiff has introduced evidence that a safer alternative was feasible because it was used, the defendant may then introduce contradictory evidence that it was not used.

Thus in response to the Baileys’ evidence of kill switch use in 1978, the time of trial, Boatland was properly allowed to show that they were not used when the boat was sold in 1973. To rebut proof that safety switches were possible and feasible when Bailey’s boat was sold because the underlying concept was known and the “Quick Kill,” a simple, inexpensive device had been invented, Boatland was properly allowed to show that neither the “Quick Kill” nor any other kill switch was available at that time.

It could reasonably be inferred from this evidence that although the underlying concept of automatic motor cut-off devices was not new, kill switches were not as feasible an alternative as the Baileys’ evidence implied. Boatland did not offer evidence of technological impossibility or absolute nonfeasibility; its evidence was offered to show limited availability when the boat was sold. Once the jury was informed of the state of the art, it was able to consider the extent to which it was feasible to incorporate an automatic cut-off device or similar design characteristic into Bailey’s boat. The feasibility and effectiveness of a safer design and other factors such as utility and risk, were properly considered by the jury before it ultimately concluded that the boat sold to Bailey was not defectively designed.

In cases involving strict liability for defective design, liability is determined by the product’s defective condition; there is no need to prove that the defendant’s conduct was negligent. Considerations such as the utility and risk of the product in question and the feasibility of safer alternatives are presented according to the facts as they are proved to be, not according to the defendant’s perceptions. Thus, even though the defendant has exercised due care his product may be found defective. When the Baileys introduced evidence of the use of kill switches, Boatland was entitled to introduce rebuttal evidence of nonuse at the time of manufacture due to limitations imposed by the state of the art. Evidence offered under these circumstances is offered to rebut plaintiff’s evidence that a safer alternative was feasible and is relevant to defectiveness. It was not offered to show that a custom existed or to infer the defendant’s compliance therewith. We would be presented with a different question if the state of the art in 1973 with respect to kill switches had not been disputed and Boatland had attempted to avoid liability by offering proof that Bailey’s boat complied with industry custom.

CONCLUSION

For the reasons stated above the judgment of the court of civil appeals is reversed. The judgment rendered by the trial court, that the Baileys take nothing against Boatland, is affirmed.

POPE, J., concurring, in which BARROW, J., joins.

CAMPBELL, Justice, dissenting.

I dissent.

“State of the art” does not mean “the state of industry practice.” “State of the art” means “state of industry knowledge.” At the time of the manufacture of the boat in question, the device and concept of a circuit breaker, as is at issue in this case, was simple, mechanical, cheap, practical, possible, economically feasible and a concept seventy years old, which required no engineering or technical breakthrough. The concept was known by the industry. This fact removes it from “state of the art.”

Boatland is a retail seller. It is not the manufacturer. From the adoption of strict liability in this case, and consideration of public policy, each entity involved in the chain of commercial distribution of a defective product has been subject to strict liability for injuries thereby caused, even though it is in no way responsible for the creation of a defective product or could not cure the defect. The remedy for a faultless retail seller is an action for indemnity against the manufacturer.

In products liability, the measure is the dangerously defective quality of the specific product in litigation. The focus is on the product, not the reasoning behind the manufacturer’s option of design or the care exercised in making such decisions. Commercial availability or defectiveness as to Boatland is not the test. Defectiveness as to the product is the test. If commercial unavailability is not a defense or limitation on feasibility to the manufacturer, it cannot be a defense to the seller.

The manufacturer of the boat, Mr. Hudson, testified as follows as concerns the concept of a “kill switch.” It is practically without dispute that this is one of the simplest mechanical devices and concepts known to man. Its function is, can be, and was performed by many and varied simple constructions. It is more a concept than an invention. The concept has been around most of this century. It is admittedly an easily incorporated concept. Was an invention required in order to incorporate a circuit breaker on a bass boat? Absolutely not! Did the manufacturer have to wait until George Horton invented his specific “Quick Kill” switch before it could incorporate a kill switch of some sort on its bass boats? Absolutely not! Mr. Hudson uses an even simpler electrical circuit breaker on his boats.

Mr. Hudson testified he could have made a kill switch himself, of his own, and of many possible designs, but simply did not do it. Why didn’t he do it? He didn’t think about it. He never had any safety engineer examine his boats. He hadn’t heard of such, he puts them on now, but still thinks people won’t use them.

What is this Court faced with in this case? Nothing more than a defendant seller attempting to avoid liability by offering proof that Bailey’s boat complied with industry practice (which it did at that time) but not because of any limitations on manufacturing feasibility at that time. This is an industry practice case. The evidence does not involve “technological feasibility.”

There is no dispute that commercially marketed “kill switches” for bass boats were unavailable to Boatland at the time it sold the boat. Horton’s “Quick Kill” was unavailable. The important point is that there is no dispute that at the time of the manufacture of Mr. Bailey’s boat, a circuit breaker, whether electrical or mechanical could have easily and cheaply been incorporated into the boat.

I would hold that the trial court erred in permitting such evidence by Boatland to go to the jury, and would affirm the judgment of the Court of Civil Appeals.

I further disagree with the majority opinion and agree with the Court of Civil Appeals on the submission of the issues pertaining to Bailey’s conduct in handling the boat. There is no evidence that Bailey was struck when first thrown from the boat. The evidence is that he was hit when the boat circled.

The theory of Valerie Bailey’s lawsuit is that if the manufacturer had incorporated a circuit breaker in the manufacture of the boat, the boat motor would have cut off when Mr. Bailey was first thrown from the boat. The boat would not have circled back to where he was thrown and struck him with a rapidly spinning propeller. Under this theory, Mr. Bailey’s conduct is not determinative of anything. The result would have been the same if he had been in a stump-free lake, hit a submerged log which had just drifted in, and had been thrown from the boat.

The evidence stated in the opinion of the Court of Civil Appeals clearly shows the alleged conduct of Mr. Bailey in operating the boat was reasonably foreseeable by Boatland. The foreseeability of that deviation in the manufacturer’s intended use of the product is relevant to the basic question of whether the product was unreasonably dangerous when and as it was marketed. General Motors Corp. v. Hopkins, 548 S.W.2d 344 (Tex.1977).

The harmful effect of the submission of these issues cannot be more vividly displayed than by considering the emphasis placed on them by counsel for Boatland in his argument to the jury. I would affirm the judgment of the Court of Civil Appeals.

RAY, J., joins in this dissent.

Failure To Warn

In general, in order for a warning to be adequate, it must make the product safe for both its intended and foreseeable uses, including any potential foreseeable misuse, especially by children. A warning must also take into account the “environment of use” of a product.
There are three criteria that are used by the courts to determine the adequacy of warnings:

• A warning must be displayed in such a way as to reasonably catch the attention of the person expected to use the product. This element deals with such factual questions as size, position, and even the color of the warnings.
• A warning must fairly apprise a reasonable user of the nature and extent of the danger and not minimize any danger associated with the use of a product.
• A warning must instruct the user how to use the product in such a way so as to avoid the danger—essentially how to safely use the product.

Courts emphasize that manufacturers must anticipate reasonable risks and warn of these risks. Manufacturers must also appreciate the “environment of use” of a product—as will be seen in Spruill v. Boyle-Midway, Inc. in the next chapter.
Think about ads for drugs or medical devices that you have either recently heard on the radio or seen on TV. Do these ads really warn the consumer about real risks? Is there such a thing as information overload? Do consumers sometimes turn a “blind eye or a deaf ear” to product warnings?
We will discuss products warnings in great detail in the next chapter.

Questions

1. Find a recent manufacturing defect case. How does the product exhibit a manufacturing defect, given its definition?
2. What flaw to the reasonable expectations test was revealed in Hunt v. Ferguson-Paulus Enterprises?
3. Boatland of Houston creates and designs boats. Samuel Bailey was operating one of these boats when it hit a partially submerged tree stump, causing Bailey to be thrown into the water. With its motor still running, the boat came back and killed Bailey after being struck by the propeller. It is unclear whether he was struck when he was first thrown out or after the boat came back. At the trial, the family of the deceased pre- sented several reasons why the boat was defectively designed such as inadequate seating and control arrangement, unsafe steering and throttle design, and a failure of the motor to automatically shut off when Bailey was thrown from the boat.
   1. Does the doctrine of strict liability apply to this case? If so, how?
   2. Was the boat defective?
   3. Is Boatland of Houston liable?
4. Ferguson-Paulus Enterprises, the defendant, owns and maintains a vending machine. Hunt, the plaintiff, bought a cherry pie from the vending machine. Upon biting the pie, the plaintiff’s tooth broke when it hit a cherry pit. He brought action to recover damage for his injury. Additionally, the plaintiff asserted that “a consumer of a piece of cherry pie purchased from a vending machine does not reasonably expect to find a cherry pit in such pie.”
   1. Does the foreign-natural test apply to this case? If so, how?
   2. Is Ferguson-Paulus Enterprises liable for Hunt’s injuries?