Those who predicted the demise of the Consumer Expectations test were premature. It still exists in a number of jurisdictions, and is still available for certain judges to have an expansive view of ordinary consumer safety expectations – irrespective of the complexity of a product or the circumstances of an accident.
For many years, the safety expectations of an “ordinary consumer” served as an independent basis to prove design defects in product liability cases. The standard has been criticized frequently by courts and scholars as being unworkably vague, yet its application continues in many jurisdictions.
California’s Influence : The Two Prongs of Barker
Although reliance on the opinions of the California Supreme Court may have waned over the past 20 years or so, other courts continue to look to California as the authority for development of product liability principles.
One influential precedent is Barker v. Lull Eng. Co., 20 Cal.3d 413, 573 P. 2d 443 (1978). The California Court ruled a product may be deemed defective (1) if it failed to perform as safely as an ordinary consumer would expect (the Consumer Expectations test) or (2) if the risks of danger inherent in the product’s design exceeded the benefits of that design.
Application of the first prong of the test is illustrated in Campbell v. General Motors Corp., 32 Cal. 3d 112, 649 P. 2d 224 (1982). Plaintiff was thrown from her seat on a public bus during a sharp turn. She alleged there was no bar that she could grab to restrain herself, as she was sitting in a front-row seat. Chief Justice Rose Bird stated:
Since public transportation is a matter of common experience, no expert testimony was required to enable the jury to reach a decision …. Indeed, it is difficult to conceive what testimony an “expert” could provide …. [O]ne can hardly imagine what credentials a witness must possess before he can be certified as an expert on the issue of ordinary consumer expectations.
Later, the California Supreme Court recognized the chaos created by dictum that was included in Campbell. Soule v.General Motors Corp., 8 Cal.4th 548, 882 P. 2d 298 (1994) put forth the second prong – a product may be deemed defective if the risks of danger inherent in the product’s design exceeded the benefits of that design. Soule involved serious injuries to plaintiff’s ankles as a result of a head-on collision. She claimed the toe pan of her vehicle was defectively designed, as it was driven up into her legs during the crash sequence, causing compound compression fractures of her left ankle. Plaintiff urged the application of the Consumer Expectations test.
In rejecting the application of that standard, the Supreme Court stated that the Consumer Expectation test was restricted to every-day experience of the product’s users that would permit a conclusion that the product’s design violated minimum safety assumptions, regardless of any expert opinion about the merits of that design. It said:
[T]he jury may not be left free to find a violation of ordinary consumer expectations 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 this second prong of Barker.
Restatement (Third) of Torts
In May 1997, the Restatement (Third) of Torts was published. It abandoned the Consumer Expectations test as a basis for proving a product is defective.
- Under section 2(b), to establish a defective product design, a plaintiff must show that the foreseeable risk of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design. That is, plaintiff must show that the alternative product would have avoided the injury at issue at a cost that was reasonable in light of the degree of harm thereby produced. Consumer Expectation may be a consideration with this formula.
- Under section 3, a res ispa loquitor (the thing speaks for itself) type inference of defect in a product is available to any plaintiff who could show that the injury was of a kind that ordinarily occurs as a result of a product defect.
A majority of courts or state legislatures have adopted laws similar to the approach of the Third Restatement, but despite these changes and frequent criticisms, courts in many jurisdictions still stubbornly adhere to the Consumer Expectations test.
Problems Created by the Consumer Expectations Test
When the Consumer Expectations test is restricted to the operation of simple products that are common in the marketplace, judicial problems are minimized. For example, the consumer expectation is that cigarette lighters emit a flame during use, guns shoot bullets, and tubs are slippery. When restricted to these common products, the Consumer Expectations test should yield reasonable and consistent results. To recover damages in such cases, however, the plaintiff would be required to engage in a risk-benefit analysis of the product.
Given no definition is provided for either “ordinary consumer” or “consumer expectations,” courts may be provided too much leeway in the application of this test. Haphazard, inconsistent decisions can result from this fluid legal standard. Compare, for example, Mansur v. Ford Motor Co. 197 Cal.App. 4th 1365 (2011) with Pannu v. Land Rover N. A. Inc. 191 Cal.App. 4th 1298 (2011).
- Mansur concerned a wrongful death action involving the roof crush of a Ford Explorer. The appellate court there eschewed the application of the Consumer Expectations test, stating that proof the Explorer is a family vehicle is not sufficient to evaluate the vehicle’s safety …. Plaintiffs assert “because Ford marketed the Explorer as a station wagon replacement, no consumer would expect an Explorer to roll over in response to a normal avoidance maneuver.” The problem with Plaintiffs’ argument is that evidence of a “family vehicle” marketing strategy does not equate to evidence of “the objective features of the product which are relevant to the evaluation of its safety.”
- In Pannu, on the other hand, the roof crush case was submitted to the jury on both Consumer Expectation and a risk-benefit analysis. The appellate court posed the question whether a reasonable consumer would expect the roof of the subject vehicle to intrude dramatically on the occupant survivor space in the event of a rollover following multiple collisions and at freeway speed. The court did not provide an answer, although it observed the question was a close one.
Inconsistencies with the application of the Consumer Expectations test to complex products, the operation of which is beyond the pale of any ordinary consumer, are relatively frequent. In Bresnahan v. Chrysler Corp., 38 Cal.App. 4th 1559 (1995), plaintiff claimed injury when the airbags in her Chrysler LeBaron did not deploy at a self-described low-speed impact. It was held that the trial court erred in precluding plaintiff from proceeding under the Consumer Expectations test. Yet, in Pruitt v. General Motors Corp., 72 Cal.App. 4th 1480, 1483-85 (1999), the court found no error in the lower court’s refusal to instruct the jury on the Consumer Expectations test, saying the deployment of automobile airbags is not part of the consuming public’s everyday experience.
The “willy-nilly” application of the standard is not restricted to California. In Force v. Ford Motor Co. 879 S. 2d 103 (2004), the Florida Court of Appeal held that where plaintiff’s Ford Escort was involved in a head-on collision with another vehicle, and where plaintiff sustained a severe head injury because the shoulder restraint system allegedly did not lock immediately at the time of impact, it was error not to instruct the jury on the Consumer Expectations standard. The court stated:
We conclude there may indeed be products that are too complex for logical application of the consumer expectations standard. We leave the definition of those products to be sorted out by trial courts. With respect to seat belts, however, we believe that the cases finding that they may be tested by the consumer expectations standard are better reasoned and more persuasive.
Nor is the overextension of the standard restricted to automobiles. Saller v. Crown Cork & Seal Co., 187 Cal. App. 4th 1220 (2010), was an asbestos case in which defendant argued the only applicable test to be applied was the risk-benefit analysis. The appellate court said the widespread use of asbestos could yield an inference that the ordinary consumer of the product in an oil refinery would assume that the use of the product was safe, notwithstanding the amount of asbestos dust that was produced during disassembly operations.
Here are two examples of cases that specifically reject the risk-benefit analysis in favor of the Consumer Expectations test.
- In Halliday v. Sturm, Ruger & Co., 368 Md. 186, 792 A. 2d 1145 (2002), a three-year-old was killed while operating a handgun his father had negligently left around the house. Under the Consumer Expectations standard that applies in Maryland, no cause of action was stated by the plaintiff: there was no malfunction of the gun; it worked as designed and intended and exactly as an ordinary consumer would expect. Perversely, rigid application of this standard – initiated to facilitate recovery by an injured plaintiff against a manufacturer – prevented the plaintiff in that case from presenting evidence under a risk-benefit standard that various designs and safety gadgets were available to impede a child’s use of a pistol such as the one at issue.
- A second case that generally adopted the Consumer Expectations test to the exclusion of the risk-benefit analysis is Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 694 A. 2d 1319 (1997). That case involved injuries allegedly resulting from excessive vibrations caused by the use of pneumatic hand tools. The Connecticut court noted that the reasonable alternate design requirement such as that imposed by the Third Restatement was inconsistent with the Consumer Expectations test that it had long ago adopted in Connecticut.
But, while rejecting the risk-benefit analysis standard, the Potter court conceded that there may be instances involving complex product designs where the ordinary consumer would not have formed expectations of safety. In those instances, Connecticut law would require application of a “modified Consumer Expectations test” that focuses on various factors to balance the utility of the product’s design with the magnitude of the risk. In other words, with simple products the pure Consumer Expectations test applies; with more complex products, a risk-benefit analysis may be the rule.
Those who predicted the Third Restatement would result in the demise of the Consumer Expectations test were premature. It still exists in a number of jurisdictions, and is still available for certain judges to have an expansive view of ordinary consumer safety expectations – irrespective of the complexity of the product or the circumstances of the accident. The issue facing us is how best to deal with this amorphous fossil.