In Izzarelli v. R. J. Reynolds Tobacco Company, 321 Conn. 172, 136 A.3d 1232 (2016), the Connecticut Supreme Court was called on by the United States Court of Appeals, Second Circuit, to consider whether the so-called “good tobacco” exception to strict liability of comment (i) to Section 402A of the Restatement (Second) of Torts precludes an action against a cigarette manufacturer for manipulating the nicotine in its cigarettes to increase the user’s risk of cancer under Connecticut law. Answering in the negative, the Connecticut Court used the case to revisit its holding in Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 694 A.2d 1319 (1997) and the evolution of product liability jurisprudence since the Second Restatement. In doing so, it delved into a question at the heart of product liability law: what constitutes a design defect?

Potter was decided when the Third Restatement of Torts, Products Liability, was being drafted. By that time the limitations of the consumer expectations test, whereby a product is unreasonably dangerous if it is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer,” had become apparent. As a result, many states had adopted a “risk-utility” test for design defects. Under risk-utility, juries must consider whether the hazards of a particular design outweigh its usefulness and benefits. The Third Restatement rejected the consumer expectation test, substituted risk-utility for design defect cases, and required plaintiffs to offer evidence of a safer alternative design in most cases.

In Potter, Connecticut declined to follow the Third Restatement, opting instead for a “modified” consumer expectation test whereby the jury would weigh the product’s risks and utility and consider whether, in light of those factors, “a reasonable consumer would consider the design unreasonably dangerous.” It also retained the “ordinary consumer expectation test” for certain types of accidents that are so “bizarre” that “everyday experience permits the inference that the product did not meet minimum safety expectations.” But it gave no guidance about when one or the other should apply, and it held that a jury could be instructed on both tests in some instances.

In Izzarelli, the defendant cigarette manufacturer contended that the ordinary consumer expectation test should be used, arguing that the modified test was limited to complex products for which consumers lack safety expectations. The plaintiff argued that the modified test was the default standard, and that the ordinary test should be limited to res ipsa loquitur type cases. The Connecticut Supreme Court agreed with the plaintiff. It held that the modified consumer expectation is the primary standard, and that the ordinary test applies only where a product “failed to meet the consumer’s minimum safety expectations, such as res ipsa cases,” saying that a jury “could not reasonably conclude that cigarettes that cause cancer fail to meet the consumer’s minimum safety expectations” (emphasis in original). And the Court expressed its concern that under the ordinary consumer expectations test a product might meet the consumer’s minimum safety expectations because the because the product’s dangers were known or obvious, but could be made less dangerous without unreasonably compromising cost or safety (giving as an example a saw which could feasibly be made less dangerous by adding a guard). The Court thus identified the modified test requiring weighing of risk and utility as the primary test, and rejected the proposition that it applied only to “complex” products, but gave little guidance as to when the ordinary consumer expectation standard should apply.

Two judges joined in a concurring opinion in Izzarelli, asserting that both tests were “ill-conceived” and give juries no objective basis to evaluate challenged designs. They urged adopting the Third Restatement approach, including requiring a showing of a reasonable alternative design, to provide the jury with an objective basis for assessing whether a manufacturer’s chosen design is defective. Without this requirement, they said, “Potter’s modified standard does no better than the ordinary consumer expectations test in providing the jury with an objective basis against which to assess a product’s design.”

Izzarelli illustrates the challenge of all design defect cases: how can lay juries meaningfully weigh the risks and benefits of challenged designs? There is no question that the “ordinary” consumer expectations test fails to accomplish this. The concurring opinion argues persuasively that requiring juries to attempt to balance risks and benefits without guidance is no better, and that requiring evidence of a feasible alternative design is the solution.