A month has passed since the Texas Supreme Court delivered its opinion in Genie Industries, Inc. v. Matak. It’s the most thorough explication of Texas products liability jurisprudence that I’ve read in a good while. Nevertheless I struggled to come up with a blog post because I couldn’t quite be sure what to make of it. Did it really, as it seemed upon first reading, finally set the risk component of Texas’ risk/utility analysis on a solidly objective foundation? Or was that just wishful thinking; an illusion produced by the inevitable discussion of foreseeability and prior incidents within the context of a case that turned on weighing risk against utility?
The opinion draws no bright lines. However, the following two sentences finally settled the question for me:
The undisputed evidence is that Genie has sold more than 100,000 AWP model lifts all over the world, which have been used millions of times. But the record does not reflect a single misuse as egregious as that in this case.
Immediately after those words the court summed up its reasoning and concluded that the Genie lift is not unreasonably dangerous. I read these tea leaves to mean the court believed that no reasonable person could conclude that a risk of death at the level of 1 in 1 million (or less) could outweigh a product’s demonstrated utility. If so it’s both sensible and a pretty big deal. Hard data can now trump a jury’s or judge’s subjective risk assessment.
As noted above the opinion is a very nice summary of Texas product liability law and below this paragraph I’ll set out in bullet point fashion a CliffsNotes version. Before getting there however I want to touch upon the issue of misuse. The court spends some time talking about misuse but could have done a better job of saying where and exactly how it fits in a risk/utility scheme. The concept of misuse, when understood as the likelihood of misuse (gauged by the obviousness of what would follow) multiplied by the gravity of the failure produced by the misuse, is really just another dimension of risk if you think about it. That means it ought to be dissolved back into the general risk construct rather than being precipitated out and given a different name (and causing confusion).
Here are the takeaways:
To recover on a design defect product liability claim plaintiff must prove:
- the product was defectively designed so as to render it unreasonably dangerous;
- a safer alternative design existed; and
- the defect was a producing cause of the injury for which the plaintiff seeks recovery.
A product is unreasonably dangerous when its risk outweighs its utility.
A safer alternative design is one that would have prevented or significantly reduced the risk of the injury, would not substantially impair the product’s utility, and was economically and technologically feasible at the time.
When weighing risk against utility consider:
- the utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use;
- the availability of a substitute product which would meet the same need and not be unsafe or unreasonably expensive;
- the manufacturer’s ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs;
- the user’s anticipated awareness of the dangers inherent in the product and their avoidability because of the general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions; and
- the expectations of the ordinary consumer