California Civil Jury Instructions (CACI) (2017)

1204. Strict Liability - Design Defect - Risk-Benefit Test— Essential Factual Elements—Shifting Burden of Proof

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1204.Strict Liability—Design Defect—Risk-Benefit
Test—Essential Factual Elements—Shifting Burden of Proof
[Name of plaintiff] claims that the [product]’s design caused harm to
[name of plaintiff]. 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 [name of plaintiff] was harmed; and
3. That the [product]’s design was a substantial factor in causing
harm to [name of plaintiff].
If [name of plaintiff] has proved these three facts, then your decision on
this claim must be for [name of plaintiff] unless [name of defendant]
proves that the benefits of the [product]’s design outweigh the risks of
the design. In deciding whether the benefits outweigh the risks, you
should consider the following:
(a) The gravity of the potential harm resulting from the use of the
[product];
(b) The likelihood that this harm would occur;
(c) The feasibility of an alternative safer design at the time of
manufacture;
(d) The cost of an alternative design; [and]
(e) The disadvantages of an alternative design; [and]
[(f) [Other relevant factor(s)].]
New September 2003; Revised February 2007, April 2009, December 2009,
December 2010, June 2011
Directions for Use
If the plaintiff asserts both tests for design defect (the consumer expectation test
and the risk-benefit test), the 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].) Risk-benefit weighing is not a formal part of, nor
may it serve as a defense to, the consumer expectations test. (Chavez v. Glock, Inc.
(2012) 207 Cal.App.4th 1283, 1303 [144 Cal.Rptr.3d 326].)
To make a prima facie case, the plaintiff has the initial burden of producing
evidence that he or she was injured while the product was being used in an
intended or reasonably foreseeable manner. If this prima facie burden is met, the
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burden of proof shifts to the defendant to prove that the plaintiff’s injury resulted
from a misuse of the product. (See Perez v. VAS S.p.A. (2010) 188 Cal.App.4th
658, 678 [115 Cal.Rptr.3d 590]; see also CACI No. 1245, Affırmative
Defense—Product Misuse or Modification.) Product misuse is a complete defense to
strict products liability if the defendant proves that an unforeseeable abuse or
alteration of the product after it left the manufacturer’s hands was the sole cause of
the plaintiff’s injury. (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 56
[148 Cal.Rptr. 596, 583 P.2d 121]; see CACI No. 1245.) Misuse or modification
that was a substantial factor in, but not the sole cause of, plaintiff’s harm may also
be considered in determining the comparative fault of the plaintiff or of third
persons. See CACI No. 1207A, Strict Liability—Comparative Fault of Plaintiff, and
CACI No. 1207B, Strict Liability—Comparative Fault of Third Person.
Aesthetics might be an additional factor to be considered in an appropriate case in
which there is evidence that appearance is important in the marketability of the
product. (See Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181
Cal.App.4th 1108, 1131 [105 Cal.Rptr.3d 485].)
Sources and Authority
• “A manufacturer, distributor, or retailer is liable in tort if a defect in the
manufacture or design of its product causes injury while the product is being
used in a reasonably foreseeable way.” (Soule v. General Motors Corp. (1994) 8
Cal.4th 548, 560 [34 Cal.Rptr.2d 607, 882 P.2d 298].)
• “[T]he term defect as utilized in the strict liability context is neither self-
defining nor susceptible to a single definition applicable in all contexts.”
(Johnson v. United States Steel Corp. (2015) 240 Cal.App.4th 22, 31 [192
Cal.Rptr.3d 158].)
• “ ‘[O]nce 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.’ Appellants are therefore correct in asserting that it was not
their burden to show that the risks involved in the loader’s design—the lack of
mechanical safety devices, or of a warning—outweighed the benefits of these
aspects of its designs. The trial court’s instruction to the jury, which quite likely
would have been understood to place this burden on appellants, was therefore
an error.” (Lunghi v. Clark Equipment Co., Inc. (1984) 153 Cal.App.3d 485,
497–498 [200 Cal.Rptr. 387], internal citations omitted.)
• “[U]nder the risk/benefit test, the plaintiff may establish the product is defective
by showing that its design proximately caused his injury and the defendant then
fails to establish that on balance the benefits of the challenged design outweigh
the risk of danger inherent in such design. In such case, the jury must evaluate
the product’s design by considering the gravity of the danger posed by the
design, the likelihood such danger would occur, the feasibility of a safer
alternative design, the financial cost of an improved design, and the adverse
consequences to the consumer resulting from an alternative design. ‘In such
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cases, the jury must consider the manufacturer’s evidence of competing design
considerations . . . , and the issue of design defect cannot fairly be resolved by
standardless reference to the “expectations” of an “ordinary consumer.” ’ ”
(Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1233
[115 Cal.Rptr.3d 151], internal citations omitted.)
• “[T]he defendant’s burden is one ‘affecting the burden of proof, rather than
simply the burden of producing evidence.’ ” (Moreno v. Fey Manufacturing
Corp. (1983) 149 Cal.App.3d 23, 27 [196 Cal.Rptr. 487].)
• “The [consumer-expectation and risk-benefit] tests provide alternative means for
a plaintiff to prove design defect and do not serve as defenses to one another. A
product may be defective under the consumer expectation test even if the
benefits of the design outweigh the risks. [Citation.] On the other hand, a
product may be defective if it satisfies consumer expectations but contains an
excessively preventable danger in that the risks of the design outweigh its
benefits.” (Chavez, supra, 207 Cal.App.4th at p. 1303.)
• “Under Barker, in short, the plaintiff bears an initial burden of making ‘a prima
facie showing that the injury was proximately caused by the product’s design.’
This showing requires evidence that the plaintiff was injured while using the
product in an intended or reasonably foreseeable manner and that the plaintiff’s
ability to avoid injury was frustrated by the absence of a safety device, or by
the nature of the product’s design. If this prima facie burden is met, the burden
of proof shifts to the defendant to prove, in light of the relevant factors, that the
product is not defective. Importantly, the plaintiff’s prima facie burden of
producing evidence that injury occurred while the product was being used in an
intended or reasonably foreseeable manner must be distinguished from the
ultimate burden of proof that rests with the defendant to establish that its
product was not defective because the plaintiff’s injury resulted from a misuse
of the product.” (Perez, supra, 188 Cal.App.4th at p. 678, original italics,
internal citations omitted.)
• “ ‘[I]n evaluating the adequacy of a product’s design pursuant to [the risk-
benefit] 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.’ ”
(Gonzalez v. Autoliv ASP, Inc. (2007) 154 Cal.App.4th 780, 786–787 [64
Cal.Rptr.3d 908], internal citations omitted.)
• “[E]xpert evidence about compliance with industry standards can be considered
on the issue of defective design, in light of all other relevant circumstances,
even if such compliance is not a complete defense. An action on a design defect
theory can be prosecuted and defended through expert testimony that is
addressed to the elements of such a claim, including risk-benefit
considerations.” (Howard v. Omni Hotels Management Corp. (2012) 203
Cal.App.4th 403, 426 [136 Cal.Rptr.3d 739].)
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• “Plaintiffs contend aesthetics is not a proper consideration in the risk-benefit
analysis, and the trial court’s ruling to the contrary was an ‘[e]rror in law.’ We
disagree. In our view, much of the perceived benefit of a car lies in its
appearance. A car is not a strictly utilitarian product. We believe that a jury
properly may consider aesthetics in balancing the benefits of a challenged
design against the risk of danger inherent in the design. Although consideration
of the disadvantages of an alternative design (CACI No. 1204, factor (e)) would
encompass any impact on aesthetics, we conclude that there was no error in the
trial court’s approval of the modification listing aesthetics as a relevant factor.”
(Bell,supra, 181 Cal.App.4th at p. 1131, internal citations omitted.)
• “Taken together, section 2, subdivision (b), and section 5 of the Restatement
indicate that a component part manufacturer may be held liable for a defect in
the component. When viewed in its entirety, the Restatement does not support
[defendant]’s argument that ‘[o]nly if the component part analysis establishes
sufficient control over the design of the alleged defect should the component
manufacturer be held to the standard of the risk-benefit test.’ Instead, the test
considering foreseeable risks of harm and alternative designs is applied to the
component part manufacturer when the alleged defect is in the component.”
(Gonzalez, supra, 154 Cal.App.4th at pp. 789–790.)
• “Where liability depends on the proof of a design defect, no practical difference
exists between negligence and strict liability; the claims merge.” (Lambert v.
General Motors (1998) 67 Cal.App.4th 1179, 1185 [79 Cal.Rptr.2d 657].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1449–1467
Haning et al., California Practice Guide: Personal Injury, Ch. 2(II)-D, Strict
Liability For Defective Products, ¶¶ 2:1223–2:1224 (The Rutter Group)
California Products Liability Actions, 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, §§ 190.110,
190.118–190.122 (Matthew Bender)
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