The American Law Institute, three decades after initially defining the standards that govern tort liability for the manufacturers of products, recently drafted the Third Restatement of Torts. The Third Restatement, consisting exclusively of product liability rules and commentaries, explains the prevailing legal principles in products liability jurisprudence following the enactment of Section 402A of the Second Restatement of Torts in the early 1960s.
One of the more controversial changes between the Second and Third Restatements in the products liability area is the elimination of the "consumer expectations test" as an independent governing standard in determining whether a product is defectively designed. The "consumer expectations test" essentially allows a jury to hold a product manufacturer liable for a defective product design based on a determination that the product in question did not perform as an ordinary consumer would expect when used in an intended and reasonably foreseeable manner.
Section 2, subdivision (b) defines the test for determining whether a product is defectively designed. In pertinent part, this section states the following: "A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design ... and the omission of the alternative design renders the product not reasonably safe."
The Third Restatement's omission of the "consumer expectations test" as an independent criterion under section 2, subdivision (b) above, reduces this test to being merely one of many factors to be considered by the jury in conducting a risk-utility balancing analysis. (comments f and g to section 2)
More important, section 2 of the Third Restatement now requires the plaintiff to provide a reasonable alternative design to the product in question. In advancing a reasonable alternative design, the plaintiff is not required to offer a prototype product. The plaintiff must only show that the proposed alternative design exists and is superior to the product in question.
The Third Restatement's omission of the "consumer expectations test," as well as its inclusion of the additional requirement that the plaintiff propose a reasonable alternative design to the product in question, are not reflective of California law at this time. In Barker v. Lull Engineering Co. 20 Cal.3d 413, 143 Cal.Rptr. 225 (1978), the California Supreme Court first enunciated the two-prong test which allows a jury to conclude that a particular product design is defective if the plaintiff proves either prong of the test. The first prong permits a jury to conclude that a specific product is defectively designed based on an assessment that the product failed to perform as safely as an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner. The second prong allows the jury to conclude that the product design is defective where plaintiff proves that the product's design proximately caused injury and where the defendant fails to prove, in light of the relevant factors, that on balance the benefits of the challenged design outweighed the risk of danger inherent in such design.
Subsequent California cases which have implemented and expanded on the Barker criteria are also not in line with section 2 of the Third Restatement. For example, the court in Sparks v. Owens-Illinois 32 Cal.App.4th 461 (1995) held 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, and a product may thus be defective under the test regardless of expert opinion about the merits of its design ... The plaintiff need not show that there was a safer alternative design."
Although not binding legal authority, defense counsel will be able to utilize the Third Restatement as persuasive authority in changing the law in California. The provisions of the Third Restatement, if implemented by the courts, will establish a degree of fairness in the products liability arena. If California courts adopt the Third Restatement's elimination of the "consumer expectations test", this change alone will strip juries of the ability to render decisions based on potentially subjective, capricious and unscientific opinions that a particular product design is unduly dangerous based on its performance in a single incident. More important, plaintiffs will be required to propose a reasonable alternative design to the product in question. Such a requirement will force plaintiffs to prove that a better product design exists other than in the unproven and untested domain of their experts' imaginations.