1203. Strict Liability - Design Defect - Consumer Expectation Test—Essential Factual Elements

[Name of plaintiff] claims the [product]'s design was defective because the [product] did not perform as safely as an ordinary consumer would have expected it to perform. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] [manufactured/distributed/sold] the [product];

2. [That, at the time of the use, the [product] was substantially the same as when it left [name of defendant]'s possession;]

[or]

[That any changes made to the [product] after it left [name of defendant]'s possession were reasonably foreseeable to [name of defendant];]

3. That the [product] did not perform as safely as an ordinary consumer would have expected at the time of use;

4. That the [product] was used [or misused] in a way that was reasonably foreseeable to [name of defendant];

5. That [name of plaintiff] was harmed; and 6. That the [product]'s failure to perform safely was a substantial factor in causing [name of plaintiff]'s harm.

Directions for Use

If both tests (the consumer expectation test and the risk-benefit test) for design defect are asserted by the plaintiff, the burden-of-proof instructions must make it clear that the two tests are alternatives. (Bracisco v. Beech Aircraft Corp. (1984) 159 Cal.App.3d 1101, 1106-1107 [206 Cal.Rptr. 431].)

Some cases state that product misuse must be pleaded as an affirmative defense. (See, e.g., Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 141 [229 Cal.Rptr. 605].) However, the advisory ommittee feels that absence of unforeseeable misuse is an element of plaintiff's claim and that foreseeable misuse is more properly asserted by defendant in support of a claim of contributory negligence. But see below:

"[P]roduct misuse [is] a defense to strict products liability only when the defendant prove[s] that an unforeseeable abuse or alteration of the product after it left the manufacturer's hands was the sole reason that the product caused injury." (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56 [148 Cal.Rptr. 596, 583 P.2d 121], internal citation omitted.)

" 'Misuse' is a defense only when that misuse is the actual cause of the plaintiff's injury, not when some other defect produces the harm. This causation is one of the elements of the 'misuse' affirmative defense and thus the burden falls on the defendant to prove it." (Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 831 [20 Cal.Rptr.2d 296], internal citation omitted.)

Sources and Authority

In Barker v. Lull Engineering (1978) 20 Cal.3d 413 [143 Cal.Rptr. 225, 573 P.2d 443], the court established two alternative tests for determining whether a product is defectively designed. Under the first test, 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." (Id. at p. 429.) Under the second test, a product is defective if the risk of danger inherent in the design outweighs the benefits of such design. (Id. at p. 430.)

"[The] dual standard for design defect assures an injured plaintiff protection from products that either fall below ordinary consumer expectations as to safety or that, on balance, are not as safely designed as they should be." (Barker, supra, 20 Cal.3d at p. 418.)

The consumer expectation test "acknowledges the relationship between strict tort liability for a defective product and the common law doctrine of warranty, which holds that a product's presence on the market includes an implied representation 'that it [will] safely do the jobs for which it was built.' " (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 562 [34 Cal.Rptr.2d 607, 822 P.2d 298], internal citations omitted.)

Use of this instruction is limited by the following principles: "[T]he jury may not be left free to find a violation of ordinary consumer xpectations whenever it chooses. Unless the facts actually permit an inference that the product's performance did not meet the minimum safety expectations of its ordinary users, the jury must engage in the balancing of risks and benefits required by the second prong of Barker. Accordingly, as Barker indicated, instructions are misleading and incorrect if they allow a jury to avoid this risk-benefit analysis in a case where it is required." (Soule, supra, 8 Cal.4th at p. 568.)

"[T]he consumer expectation test is reserved for cases in which the everyday experience of the product's users permits a conclusion that the product's design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design." (Soule, supra, 8 Cal.4th at p. 567, italics in original.)

"In determining whether a product's safety satisfies [the consumer expectation test], the jury considers the expectations of a hypothetical reasonable consumer, rather than those of the particular plaintiff in the case." (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 126, fn. 6 [184 Cal.Rptr. 891, 649 P.2d 224].)

State-of-the-art evidence is not relevant when the plaintiff relies on a consumer expectation theory of design defect. (Morton v. Owens-Corning Fiberglas Corp. (1995) 33 Cal.App.4th 1529, 1536 [40 Cal.Rptr.2d 22].)

"[T]he law now requires a manufacturer to foresee some degree of misuse and abuse of his product, either by the user or by third parties, and to take reasonable precautions to minimize the harm that may result from misuse and abuse." (Self v. General Motors Corp. (1974) 42 Cal.App.3d 1, 7 [116 Cal.Rptr. 575], disapproved and overruled on another issue in Soule, supra, 8 Cal.4th at p. 580.)

Secondary Sources

6 Witkin, Summary of California Law (9th ed. 1988) Torts, §§ 1254-1264

California Products Liability Actions, Ch. 2, Liability for Defective Products, § 2.11, Ch. 7, Proof, § 7.02 (Matthew Bender)

40 California Forms of Pleading and Practice, Ch. 460, Products Liability, § 460.11 (Matthew Bender)

19 California Points and Authorities, Ch. 190, Products Liability (Matthew Bender)

(Revised December 2005)