Since it was adopted in California in 1978, courts have grappled with how to apply the consumer expectations test in product liability cases. Originally designed to ease the plaintiff's burden in proving a product defect, the test does away with expert testimony and simply asks whether a reasonable consumer would believe the product failed to perform as safely as expected. The greatest limitation of the test has always been that most consumers do not have an understanding of the sometimes complicated design decisions that go into many products, and thus, likely do not have a basis to form safety expectations regarding the use of those products. Regardless, since its adoption in California, plaintiffs have pushed for a broader application of the test in an effort to expand the view of what constitutes a reasonable consumer's safety expectations. The result has been a litany of cases, with sometimes contradictory reasoning, that fail to provide any predictability in how a court will rule.
On July 5, 2011, the California Court of Appeal, Fourth Appellate District issued the most recent opinion on the issue in Mansur v. Ford (2011) 197 Cal.App.4th 1365. In that case, the plaintiff alleged product liability crashworthiness claims related to the performance of a Ford Explorer that was involved in a high-speed rollover accident. While the opinion addresses several issues, the focus was whether the jury should have been instructed on the consumer expectations test. The critical factor related to that issue was whether reasonable consumers would have any safety expectations related to how a Ford Explorer should perform in a rollover accident.
The Mansur court ultimately reached the correct decision in affirming that the consumer expectations test did not apply in that case, but it did so in a way that potentially leaves the door open for plaintiffs to continue to argue the test applies to complicated products involved in complex accident sequences. To its credit, the court attempted to apply a standard framework to determine whether the objective features of the product are understandable to a reasonable consumer such that safety expectations can be formed. However, as other courts have discovered, defining the nebulous legal principle of what constitutes an objective consumer's expectations is not easily reduced to any type of standard, and, unfortunately, the Mansur court was not able to close the loop on the type of evidence that could be considered in that regard.
Historical Background of the Consumer Expectations Test
The consumer expectations test was adopted by the California Supreme Court in the landmark case of Barker v. Lull Engineering (1978) 20 Cal.3d 413. There the court explained that on its most basic level, a product is defective in design if it fails to perform as safely as an ordinary consumer expects. This principle, the court reasoned, blended the policies favoring strict liability and warranty, because there is an implied representation that a product will "safely do the jobs for which it was built." (Barker, 20 Cal.3d at 430.) The Barker court, however, recognized the limitations of the test and noted the test may be inappropriate in some cases because the consumer may not know what to expect or have any expectation about how safe a product could be made. (See id.) As an example of such a case, Barker pointed to Self v. General Motors Corp. (1974) 42 Cal.App.3d 1, which involved defect allegations related to the crashworthiness of a vehicle in a collision. Where risks, benefits and practical design alternatives were at issue, the jury would be misled if they could simply resort to their objective expectations. (See id.)
Four years later the court again addressed the issue in Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, which did not involve complicated crashworthiness issues, but instead looked to whether a city bus should have had a handrail where the plaintiff was sitting, when other seats on the bus had such rails. The court found the consumer expectation test was appropriate there because public transportation is a matter of common experience and issues related to handrails would be commonly understood by consumers. (Campbell, 32 Cal.3d. at 126.) In reaching that decision, the court looked to three factors: (1) the plaintiff's use of the product; (2) the circumstances surrounding the injury; and (3) the objective features of the product related to its safety. Because evidence of these three factors existed, and because consumers ultimately can form safety expectations regarding the existence of handles, the court agreed the test applied. The court, however, did not proclaim the factors it looked at should be used as a test in all cases. In fact, the court qualified the ruling by indicating the quantum of proof necessary to establish use of the consumer expectations test could not be "reduced to an easy formula." (Id. at 127.)
The California Supreme Court again revisited the issue in the subsequent case of Soule v. General Motors Corp. (1994) 8 Cal.4th 548. Unlike Campbell, Soule was a crashworthiness case in which the plaintiff alleged a vehicle was defective because components of the car crushed inward during an accident and caused her injury. Interestingly, the court did not use the factors laid out in Campbell, but instead clarified that the "consumer expectations 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." (Soule, 8 Ca.4th at 567.) For example, the court described that a consumer's minimum safety assumptions about the performance of an automobile would theoretically be breached if a car exploded while idling at a stoplight, or caught fire after a low-speed collision, or experienced steering or brake failure when driving it from the dealership. (See id. at 566, fn. 3.) Every consumer would have an expectation that these types of failures should not occur. However, the court cautioned that using the consumer expectations test in complicated cases involving multiple vehicle components and complicated accident dynamics would have the likely effect of confusing the jury because an "ordinary consumer of automobiles cannot reasonably expect that a car's frame, suspension, or interior will be designed to remain intact in any and all accidents. Nor would ordinary experience and understanding inform such a consumer how safely an automobile's design should perform under esoteric circumstances of the collision at issue." (Id. at 570.)
Following Soule, appellate courts in the state have reached varied conclusions on the scope of a consumer's minimum safety assumptions. The result has been a pattern of decisions that seem to suggest a more expansive view of when the consumer expectations test applies than that considered by the California Supreme Court in Soule.
Mansur v. Ford
In Mansur, plaintiff Mohammad Mansur was driving his 1996 Ford Explorer on the highway with his wife and two children. Mansur lost control of the Explorer while attempting to steer the vehicle away from another swerving car. The steering maneuver caused the Explorer to roll over three and a half times and come to rest its roof in the center median. As a result of the rollover sequence, the roof sustained damage and buckled above the passenger seat where Mansur's wife was seated. She sustained fatal injuries to her head and upper torso. Mansur and his two minor children sued Ford, alleging that the roof structure was insufficient to withstand crash forces in that it did not protect the occupant's "survival space" and that the Explorer had a high center of gravity, making it more likely to roll.
At trial, the plaintiffs presented a dearth of expert testimony related to the design of the structure of the Explorer. The experts explained several design decisions, apparently made by Ford, related to the strength of structural components of the Explorer. Ultimately, the plaintiffs argued the Explorer was defective because there were other design alternatives that would have made the roof stronger. Despite this testimony, the plaintiffs requested an instruction on the consumer expectations test, which would have asked the jury to ignore the expert testimony and render an opinion based on a consumer's objective expectations. Ford moved to preclude the use of the consumer expectations jury instruction. The trial court granted Ford's motion, noting that the case involves the interaction of complex forces with complex systems.
On appeal, the court noted it was mindful of the limitations of the consumer expectations test, but stressed that the complexity of the product alone is not itself determinative. According to the Mansur court, in any case, there must be an analysis of whether evidence supports giving the consumer expectations instruction.
In evaluating whether the plaintiffs had made an adequate showing, the court used the three factors from Campbell. Interestingly, little analysis was provided regarding this decision and no analysis was provided regarding the findings of the Supreme Court in Soule, which was a similar case to Mansur that followed Campbell but did not use the three factors.
Ultimately, the court found that the plaintiffs easily produced sufficient evidence of the first two Campbell factors because the details of the use of the product, the accident and the decedent's injuries were described by the plaintiffs. The court then turned to the third factor to evaluate whether "objective features of the Explorer" were sufficient to allow consumer safety expectations. First, the plaintiffs presented evidence that the vehicle was marketed as a family vehicle. Marketing research indicated that people viewed SUVs as the "station wagon of the '90s." Second, Mansur testified he was not given any information on how the Explorer was designed or tested or performed during testing. Finally, the plaintiffs presented evidence regarding the unique handling of the Explorer. At trial, Mansur testified that the Explorer had a warning on the driver's sun visor that SUVs handle differently than passenger cars and that the owner's manual had a warning that the Explorer was not designed "for cornering at speeds as high as passenger cars."
The court explained that this evidence did not sufficiently show the objective features of the Explorer in a way that a jury could understand why the roof deformed during the rollover sequence. In other words, the evidence could not help a jury to evaluate how the Explorer would be expected to perform during a rollover. In providing the only clue about the scope of the test it just applied, the court indicated that if there was evidence of an advertisement showing the Explorer rolling over and four occupants walking away unharmed, that might be relevant to whether there were sufficient objective features to justify an expectation about how the Explorer should perform in a rollover.
The Mansur decision demonstrates the difficulties inherent in defining how the consumer expectations test should be applied. While a set standard used to determine the issue would have been helpful, the test ultimately applied by the court did not achieve the goal of closing the loop on the type of evidence that could be presented by plaintiffs. Thus, there remains little predictability regarding how the issue will be handled in the future. If Mansur is followed by other courts, emphasis will be placed on marketing materials and warranty-type representations made to the customer. But do those factors really tell us what a reasonable consumer's expectations are? In following the Mansur court's example, what if a plaintiff argues he was told by a salesperson that his Explorer could roll-over and the occupants would not be harmed? While that may be relevant to a warranty issue, does it also show what a reasonable consumer would expect? The Mansur opinion does not provide much guidance and could steer the tide of opinion away from the warnings issued by the California Supreme Court that a consumer does not have any expectations about how a vehicle, or other complicated product, should perform in a complicated crash sequence featuring dynamic crash forces.
We may not need to wait long for an indication of how the Mansur opinion will affect other rulings on the issue as the Fourth District is set to decide another case in which similar issues are raised. In Holt v. Yamaha Motor Corporation, U.S.A., et al., a plaintiff is appealing the trial court's ruling precluding a jury instruction on the consumer expectations test. The case involves a Yamaha "Rhino" – a four-wheel, off-roading vehicle – which was also involved in a rollover accident. The plaintiff is arguing that the consumer expectations test applies because he presented sufficient evidence of the Rhino's "objective features" from which the jury could evaluate its safety. A copy of the appellant's brief can be found on Westlaw at 2011 WL 3512771.