5.40D-1 DESIGN DEFECT — GENERALLY
(Approved 4/99; Revised
5/10)
Note to Judge
A design
defect may be established by different methods.
One method is the Consumer
Expectations Test. Another method is
applying the Reasonable Safer Design
standard or the Risk-Utility Analysis.[1]
The Consumer Expectations Test[2] typically
applies where the product “like a bicycle whose brakes do not hold because of
an improper design” is “self-evident(ly)...not reasonably suitable and safe and
fails to perform, contrary to the user’s reasonable expectation that it would
‘safely do the jobs for which it was built’”.
Suter v. San Angelo Foundry &
Machine Co., 81 N.J. 150, 170-171
(1979).
The design of a product is
obviously defective when there are no relevant considerations which make the
danger inherent in the product, or reasonably necessary to its
functioning. In this respect, such
defects are akin to manufacturing defect cases in which the defect is proven by
circumstantial evidence. For such a
product the usual Risk-Utility Analysis
is unnecessary. The only material
question is whether the product has been so designed that it poses a danger
that is contrary to the user’s reasonable expectations. See N.J.S.A.
2A:58C-2, note 3 below.
A product
falling within the Consumer Expectations
Test category was a food slicing machine which was not equipped with an
interlocked safety device to stop the blade from running after the guard was
removed to wipe clean the blade. Mettinger,
supra, note 1.[3] The existence of a defect can be proven by
circumstantial evidence. Myrlak v. Port Authority of New York and New
Jersey
Another method of proving the existence of a design
defect is the Risk- Utility Analysis. There the defect is established by proof that
the product’s risks or dangers outweigh its usefulness and therefore, a
reasonably careful manufacturer or seller would not have sold the product at
all in the form in which it was sold.
This involves a balancing or weighing of a number of factors known as
risk/utility factors. Cepeda v. Cumberland Engineering Co., 76
N.J. 152 (1978); O’Brien v. Muskin Corp., supra[4];
Brown v. U.S. Stove, 98 N.J. 155, 173 (1984); Michalko v. Cooke Color & Chemical Co.,
91 N.J. 386 (1982); N.J.S.A. 2A:58C-2[5].
In many or
perhaps most cases the core issue is whether or not a Reasonable Safer Design would have reduced the risk or dangers of
the product to the greatest extent possible consistent with the product’s
continued utility, i.e., without
impairing its usefulness and without making it too expensive for it to be
reasonably marketable. In such cases,
only the charge on reasonable safer design need be given. There, the plaintiff has only to show the
existence of a safe and reasonably feasible alternative to the defendant’s
product and that, in light of the omitted safer alternative, the product was
not reasonably safe as manufactured or sold.
Lewis v. American Cyanamid Co.,
supra; Smith v. Keller Ladder Co., 275 N.J.
Super. 280 (App. Div. 1994).[6] The Restatement
(Third) of Torts: Products Liability is fundamentally consistent with New Jersey
There are
three affirmative statutory defenses to certain design defect claims.[8]
They are: 1) there was not a practical and technically feasible alternative
design, 2) the harm was caused by an unsafe aspect of the product that is an
inherent characteristic[9]
of the product[10],
and 3) the harm was caused by an unavoidably unsafe aspect of the product and
the product was accompanied by an adequate warning or instruction.
[1] The Committee has weighed the phrases
“alternative safer design,” “reasonable alternative design” and “reasonable
safer design.” We have concluded that
they are identical substantively but that the phrase “reasonable safer design”
most clearly conveys the plaintiff’s burden — that the designer’s choice was
unreasonable because it omitted an alternative that was practical, feasible,
and safer overall. Lewis v. American Cyanamid,
155 N.J. 544, 571 (1998).
The principle is expressed in the Restatement (Third) of Torts: Products Liability, § (b), Reporters
Note, Cmt f:
2. The proposition that, in order to
determine that a design is not reasonably safe, the alternative must contribute
to greater overall safety needs no citation; it is axiomatic. If the alternative design proffered by the
plaintiff does not make the product safer, let alone if it makes it more
dangerous, such an alternative is not reasonable. In such a case, the fact that the alternative
design would have avoided injury in a specific case is of no moment.
[2] This theory is usually not charged. It should
be charged only in cases where the Risk-Utility
Analysis is not appropriate. See, for example Suter v. San Angelo Foundry &
Machine Co., supra; Feldman v. Lederle
Laboratories, 97 N.J. 429
(1984); Mettinger v. W.W. Lowensten, Inc.,
292 N.J. Super. 293 (App. Div. 1996),
modified o.b., 153 N.J. 371
(1998); and O’Brien v. Muskin, 94 N.J. 169 (1983).
[3] “Consumer expectations” also may be a
defense, under N.J.S.A.
2A:58C-3(a)(2). For example, if a
reasonable consumer expects a knife blade to be sharp, its sharpness, although
dangerous, is not a defect. The defense
does not apply to “equipment used in the workplace” or to dangers that can be
“feasibly eliminated without impairing the usefulness of the product.”
[4]O’Brien has been limited by statute, N.J.S.A. 2A:58C‑3b. An alternative safer design need not be shown
if
the court, on the basis of clear and convincing evidence, makes all of the
following determinations:
(1) The product is egregiously unsafe or
ultra-hazardous;
(2) The ordinary user or consumer of the product
cannot reasonably be expected to have knowledge of the product’s risks, or the
product poses a risk of serious injury to persons other than the user or
consumer; and
(3) The product has “little or no
usefulness.”
[5] N.J.S.A. 2A:58C‑2. A manufacturer or seller of a product shall
be liable in a product liability action only if the claimant proves by a
preponderance of the evidence that the product causing the harm was not
reasonably fit, suitable or safe for its intended purpose because it: a. deviated
from the design specifications, formulae, or performance standards of the
manufacturer or from otherwise identical units manufactured to the same
manufacturing specifications or formulae, or b. failed to contain adequate
warnings or instructions, or c. was designed in a defective manner.
[6] Citing Restatement
(Third) of Torts at 2(b) (Tent. Draft No. 1 1994):
Under
this provision, “to establish a prima
facie case of defect, plaintiff must prove the availability of a
technologically feasible and practical alternative design that would have
reduced or prevented plaintiff’s harm.” Id.
This
principle has now been adopted in the final version of the American Law
Institute’s Third Restatement of the Law
Torts: Products Liability, adopted, May 22, 1997, which provides, in
section 2(b):
Section
2. Categories of Product Defect
A
product ... (b) is defective in design when the foreseeable risks of harm posed
by the product could have been reduced or avoided by the (cont.) adoption of a Reasonable Alternative Design ... and
the omission of the alternative design renders the product not reasonably safe.
The
Reporters, in Comment d. Design defects:
general considerations, remark:
Assessment
of a product design in most instances requires a comparison between an
alternative design and the product design that caused the injury, undertaken
from the point of view of a reasonable person.
[7] Congiusti v.
Ingersoll-Rand, 306 N.J. Super. 126, 138-139 (App. Div.
1997) [“(I)n this case, as in most other design defect cases that are not
controlled by the absolute defenses to design defect claims in the Products Liability Act, N.J.S.A. 2A:58C‑3a, the issue centers
upon whether, in the words of the Restatement
(Third) of Torts: Products Liability at 2(b) (1997 Proposed Final Draft),
there was a ‘Reasonable Alternative
Design ... and the omission of the alternative design renders the product
not reasonably safe’.”]; Grzanka v.
Pfeifer, 301 N.J. Super. 563 (App. Div. 1997)
[Plaintiff must show not only alternative design, but reasonably foreseeable
risk such that the “the omission of the alternative design renders the product
not reasonably safe...”]; but see Saez v. S&S Corrugated Paper Machinery
Co., 302 N.J. Super. 545 (App.
Div. 1997) [Third Restatement
strongly criticizes New Jersey
a. In any product liability action against
a manufacturer or seller for harm allegedly caused by a product that was
designed in a defective manner, the manufacturer or seller shall not be liable
if:
(1) At the time the product left the control
of the manufacturer, there was not a practical and technically feasible
alternative design that would have prevented the harm without substantially
impairing the reasonably anticipated or intended function of the product; or
(2) The characteristics of the product are
known to the ordinary consumer or user, and the harm was caused by an unsafe
aspect of the product that is an inherent characteristic of the product and
that would be recognized by the ordinary person who uses or consumes the
product with the ordinary knowledge common to the class of persons for whom the
product is intended, except that this paragraph shall not apply to industrial
machinery or other equipment used in the workplace and it is not intended to apply
to dangers posed by products such as machinery or equipment that can feasibly
be eliminated without impairing the usefulness of the product; or
(3) The harm was caused by an unavoidably
unsafe aspect of the product and the product was accompanied by an adequate
warning or instruction as defined in section 4 of this act.
b. The provisions of paragraph (1) of
subsection a. of this section shall not apply if the court, on the basis of
clear and convincing evidence, makes all of the following determinations:
(1) The product is egregiously unsafe or
ultra-hazardous;
(2) The ordinary user or consumer of the
product cannot reasonably be expected to have knowledge of the product’s risks,
or the product poses a risk of serious injury to persons other than the user or
consumer; and
(3) The product has little or no usefulness.
c. No provision of subsection a. of this
section is intended to establish any rule, or alter any existing rule, with
respect to the burden of proof.
an
inherent danger arises from an aspect of the product that is indispensable to
its intended use...a feature of a product that is desirable but not necessary
is not an inherent characteristic: an inherent characteristic is an essential
characteristic. The elimination of an essential characteristic might not render
the product totally useless, but it would measurably reduce the product’s
appropriateness for its central function. We make one final observation about
jury evaluation of the second exception to the 3(a)(2) defense: juries will
inevitably weigh the extent to which the elimination of the inherent danger
would impair usefulness against the extent to which the change would improve a
hazardous condition. See also Mercer Mutual Ins. Co. v. Proudman, et al., 396 N.J. Super. 309, certif. denied, 194 N.J. 270 (2007).
[10] Since most product liability cases involve
equipment used in the workplace, this defense is usually inapplicable. N.J.S.A.
2A:58C-3(a)(2).
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