A Call for an Accurate Restatement (Third) of Torts: Design Defect

Vandall, Frank J

I. INTRODUCTION

Section 2(b) of the Restatement (Third) of Torts: Products Liability provides:

§ 2. Categories of Product Defect

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. 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 adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.1

Section 2(b) is flawed in three interrelated ways. First, it does not reflect the history of products liability. Second, it leads to higher costs of litigation and other serious problems with implementation. Third, it has not been adopted by a majority of the courts since 1994. For these reasons and others there is a need for a new Restatement of Torts) for Design Defect that would accurately reflect the law and present a case-based test for design defect.

Part II will explain the history of products liability law. Part III will critique the Restatement (Third) of Torts section 2(b),3 and Part IV will examine the key cases over the past eight years that have examined section 2(b).

II. A SHORT HISTORY OF PRODUCTS LIABILITY

The Restatement (Third) of Torts argues that negligence is the basis of the new test for design defect.4 It is arguable from a historical perspective, however, that strict liability in products and all civil liability has its foundation in absolute liability. This is made clear by the case of Anonymous.5 In that 1466 case, Judge Bryant said:

If a man does a thing he is bound to do it in such a manner that by his deeds no injury or damage is inflicted upon others. Similarly, if a man commits an assault upon me and I cannot avoid him if he wants to beat me, and I lift my stick in self defense in order to prevent him and there is a man in back of me and I injure him in lifting my stick, in that case he would have an action against him, although my lifting the stick was lawful to defend myself and I injured him without intent.6

In the context of products cases, negligence did not emerge until 1850.7

One of the earliest stumbling blocks to liability in civil suits was the concept of privity. Simply stated, privity means that liability will extend only to the immediate parties to the contract. It will not extend to third parties. The first case to recognize privity was Winterbottom v. Wright.8 In that case, the defendant Wright, under a contract with the postmaster general, agreed to maintain a stagecoach for the delivery of mail. The coach subsequently broke down as a result of the defendant's failure to perform the contract with the postmaster general. Winterbottom, the driver of the coach, was thrown from his seat and permanently injured. In rejecting the suit by the driver, the court said:

There is no privity of contract between these parties: and if the plaintiff can sue, every passenger, or even any person passing along the road, who is injured by the upsetting of the coach, might bring a similar action. Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue.9

In order to accomplish just results, the courts over the subsequent sixty years developed numerous exceptions to privity. Perhaps the clearest examples are cases involving eminently dangerous products. In Thomas v. Winchester,10 a dealer in drugs sold to a druggist a jar of belladonna, a deadly poison, and labeled it extract of dandelion.11 The druggist sold it to a patient and the patient suffered serious injury. Although there was no privity, the court allowed the suit to go forward because the product was eminently dangerous.13 The classic case involving eminently dangerous products is Langridge v. Levy.14 In that case, a firearms dealer sold a gun to a man for use by his son, and represented that it was safe. The son, while shooting it, was seriously injured. The son, although not in privity with the dealer, was able to recover because the dealer knew that the gun was eminently dangerous.

Another justification for finding an exception to privity can be found in Coughtry v. Globe Woolen Co.,15 holding that if a third party is invited to come upon the actor's premises, he will be able to recover whether or not he is in privity with the actor.16 In Coughtry, an employee of the main contractor was working upon a scaffold, which had been put up by the owner of the building, when he fell and was seriously injured.17 Suit was brought against the person who put up the scaffolding and privity was raised as a defense.18 The legal fiction of invitation was used to allow the plaintiff to recover.l9

A third example of the courts allowing privity to be skirted involves fraud. In the case of Kuelling v. Roderick Lean Manufacturing Co.,20 the defendant fraudulently repaired a roadroller by filling a hole in the wooden frame of the roller with putty and painting over it.21 While the plaintiff was driving a team of horses with the roadroller, the yoke broke at the point where it was fraudulently repaired, and the device rolled over the plaintiff, seriously injuring him. The court held that because there was fraud, the plaintiff, although not in privity, was entitled to recover.23

The case that let the products liability cat out of the bag is Stauer v. George A. Ray Manufacturing Co.24 In Statler, a large coffee urn manufactured in a "battery of three" exploded, injuring two people and killing a third.25 The court held, "[I]n the case of an article of an inherently dangerous nature a manufacturer may become liable for negligent construction which, when added to the inherent character of the appliance, makes it imminently dangerous, and causes or contributed to a resulting injury . . . ."26 Statler is significant because it skirts privity for an ordinary product, a large coffee urn. After extending liability to such a product, there are very few products that will not be subject to liability, and the privity defense will be essentially eliminated.

The most important case in a historical analysis of the development of products liability is MacPherson v. Buick Motor Co.21 MacPherson was decided by the New York Court of Appeals in 1916. The plaintiff bought a Buick from a Buick dealer who had purchased it from the manufacturer.29 While driving the car the plaintiff was thrown out and injured when one of the wooden wheels broke.30 On examination it was disclosed that the wheel was made of defective wood.3 After canvassing a large number of cases that deal with privity and the exceptions to privity, the court held as follows:

We hold . . . that the principle of Thomas v. Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.32

In MacPherson we see the consumption of the privity rule by its exceptions and the emergence of a new rule.33 MacPherson began a new era of liability based on negligence. Simply stated, if the manufacturer failed to exercise care in the design or manufacture of its product, it would be held liable under negligence. Foreseeability under negligence trumped the old privity concept.

The next important case after MacPherson is Escola v. CocaCola Bottling Co.35 This case was decided in 1944 by the Supreme Court of California.35 A waitress went to the storage area to obtain a bottle of Coca-Cola, and when she picked up the bottle, it exploded in her hand.36 The court dealt with the problem of absence of control on the part of the manufacturer by applying res ipsa loquitor to the case.37 Up to that point the case was rather routine. The importance of Escola is Justice Traynor's concurring opinion where he says:

[T]he manufacturer's negligence should no longer be singled out as the basis of a plaintiffs right to recover in cases like the present one. In my opinion it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings.38

Justice Traynor explained his concurring opinion in the following terms:

[P]ublic policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot. Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. It is to the public interest to discourage the marketing of products having defects that are a menace to the public. . . . [I]t is to the public interest to place responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for it reaching the market.39

Justice Traynor had to wait eighteen years, until 1962, in order to turn his concurring opinion in Escola into law. This opportunity arrived in Greenman v. Yuba Power Products, Inc.40 In Greenman, the plaintiff's wife had given him a Shopsmith, "a combination power tool that could be used as a saw, a drill, and [a] wood lathe."41 In 1957, while the plaintiff was using his Shopsmith as a lathe for turning a large piece of wood, the wood suddenly flew off the lathe and hit him in the face, causing serious injury. Justice Traynor used the case as an opportunity to implement his far-reaching concept of strict liability for products. He said:

The liability is not one governed by the law of contract warranties but by the law of strict liability and tort. Accordingly, rules defining and governing warranties that were developed to meet the needs of commercial transactions cannot properly be invoked to govern the manufacturer's liability to those injured by their defective products unless those rules also serve the purposes for which such liability is imposed.43

Justice Traynor explained his new doctrine of strict liability:

Implicit in the machine's presence on the market, however, was a representation that it would safely do the jobs for which it was built. Under these circumstances, it should not be controlling whether plaintiff selected the machine because of the statements in the brochure, or because of the machine's own appearance of excellence that belied the defect lurking beneath the surface, or because he merely assumed that it would safely do the jobs it was built to do. It should not be controlling whether the details of the sales from manufacturer to retailer and from retailer to plaintiff's wife were such that one or more of the implied warranties of the sales act arose. "The remedies of injured consumers ought not be made to depend upon the intricacies of the law of sales." To establish the manufacturer's liability it was sufficient that plaintiff proved that he was injured while using the Shopsmith in a way it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not aware that made the Shopsmith unsafe for its intended use.44

The trial court's verdict in favor of the plaintiff and against the manufacturer was affirmed.45

Following closely on the heels of Greenman came section 402A of the Restatement (Second) of Torts. The Reporter for that provision was William Presser. Section 402A provides:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care . . . (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.46

Section 402A of the Restatement (Second) of Torts is the most successful section of the Restatement, having been cited over 3000 times.47

Ten years after Greenman, the Supreme Court of California, in 1972, was met with a challenging case in Cronin v. J.B.E. Olson Corp.48 In Cronin, the driver of a delivery van was hit in the back of the head by a bread tray that slipped forward because of a broken hasp.49 This occurred while the driver was passing another vehicle and resulted in the bread van crashing.50 The issue before the Cronin court was whether the product must have an unreasonably dangerous defect for strict liability to apply. Specifically, the question was whether section 402A's requirement that a product be "unreasonably dangerous" was part of California law, or whether for there to be strict liability in California the product merely needed to be found defective.53 After examining the issue carefully, the California Supreme Court held that the Restatement (Second) section 402A was not part of California law, and that the state's law of strict liability only required that the product be shown to be defective.53 The court adopted this approach because unreasonably dangerous sounded of negligence, and negligence was more difficult for the injured consumer to prove than defect.54 The court, however, left open the question of how "defect" is defined.55

In 1978 the critical issue remaining was how to define defect. The courts have adopted three definitions for defect. The watershed California case of Barker v. Lull Engineering Co., Inc.56 presents two of those definitions. In Barker, the plaintiff was injured while operating a forklift when the load he was lifting shifted and fell, hitting him as he jumped off the forklift trying to escape the falling lumber.57 It was alleged that the forklift was defective because it lacked outriggers to stabilize the forklift, as well as seat belts and a rollbar." The court continued where Cronin had left off:

We have concluded from this review that a product is defective in design either (1) if the product has failed to perform as safely as the ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) if, in light of the relevant factors discussed below, the benefits of the challenged design do not outweigh the risk of danger inherent in such design.59

In regard to the burden of proof, the court held: "[O]nce the plaintiff makes a prima facie showing that the injury was proximately caused by the product's design, the burden should appropriately shift to the defendant to prove, in light of the relevant factors, that the product is not defective."60

In Barker the California Supreme Court set forth two of the leading tests for design defect: one, the risk benefit test and, two, the consumer expectation test. The third test for design defect is negligence with imputed knowledge. This test was developed by the Supreme Court of Oregon in Phillips v. Kimwood Machine Co.61 in 1974. In Phillips, the plaintiff was injured while feeding fiberboard into a sanding machine.62 The machine in question was a six-headed sander.63 The top half of the machine had pinch rolls which, when pressed down upon the fiberboard by springs, kept the sanding heads from forcefully ejecting the fiberboard from the machine.64 On the day of the injury, plaintiff was engaged in feeding the sheets of fiberboard into the sander.65 The court stated: "[T]he machine regurgitated the piece of fiberboard back at plaintiff, hitting him in the abdomen and causing him the injuries for which he now seeks compensation."66 The plaintiff asserted that the sander was defective because it could not be operated without throwing panels of material being sanded back toward the operator, and because it did not contain any guards to protect the operator. The Phillips court articulated the third test for design defect in the following language:

The problem with strict liability of products has been one of limitation. No one wants absolute liability where all the article has to do is to cause injury. To impose liability there has to be something about the article which makes it dangerously defective without regard to whether the manufacturer was or was not at fault for such condition. A test for unreasonable danger is therefore vital. A dangerously defective article would be one which a reasonable person would not put into the stream of commerce if he had knowledge of its harmful character. The test, therefore, is whether the seller would be negligent if he sold the article knowing of the risk involved. Strict liability imposes what amounts to constructive knowledge of the condition of the product.67

During the period from 1964, the date of the adoption of section 402A of the Restatement (Second), to 1992, the date of the first draft of the Restatement (Third) of Torts: Products Liability section 2(b), there were no cases which said that strict liability for products was broken and required fixing. There were no cases that said it was unworkable or that it was not the appropriate standard of liability for product manufacturers. Just the opposite occurred. section 402A was quoted in over 3,000 cases, and those cases applied the concept of strict liability, as set out in the Restatement (Second) 402A, in a studious manner. In short, there was no hue and cry for a new draft of strict products liability and certainly there was no suggestion by the courts that it was biased and needed replacement. Only the manufacturing community objected to strict products liability, because it faced liability for the defective products it put into the market.

The history of products liability is that of a gradual removal of the hurdles69 the injured consumer must clear and a shift from a difficult standard to prove70 to one that is less burdensome.71 The goal was to enable the injured consumer to have her day in court. In rejecting 150 years of history, the Restatement (Third) returns to a negligence basis and erects a huge hurdle for victims: the reasonable alternative design requirement.72

III. A CALL FOR A RESTATEMENT (THIRD) OF TORTS: DESIGN DEFECT

The Restatement (Third) of Torts: Products Liability section 2(b), dealing with defectively designed products, has been available in several drafts for approximately eight years, and in this period it has been rejected by the majority of courts that have considered it while creating numerous serious problems.73 It is unlikely the American Law Institute intended section 2(b) to be the final statement on defectively designed products. The time has come to rethink section 2(b) and the American Law Institute's position on design defect.

Numerous substantial reasons support the judicial rejection of this provision. First, the Restatement (Third) of Torts: Products Liability section 2(b) is misleading, inaccurate, and incomplete, because it does not rest on case law.74 Over 3,000 cases have cited the Restatement (Second) section 402A,75 and it is the most widely cited section of the Restatement. Nevertheless, the Restatement (Third) neither evaluates nor critiques these precedential cases. Several scholars have made this point.76

Second, the Restatement (Third) section 2(b) fails to accurately reflect the concept of strict liability.77 Instead of restating strict liability, as developed under section 402A, section 2(b) delivers a radical concept of negligence and therefore misrepresents the law.78 The Restatement drafters limited the application of strict liability to manufacturing defects and changed the strict liability into radical negligence in section 2(b).79 With this action, the American Law Institute dismantled strict liability.

Third, the Restatement (Third) of Torts: Products Liability fails to deal with three epidemics: tobacco, alcohol, and handguns.80 By requiring, in section 2(b), a plaintiff to show a "reasonable alternative design," the American Law Institute ensured that plaintiffs will be unsuccessful in products liability suits concerning tobacco, alcohol, or handguns.81 Plaintiffs' suits will fail because, in tobacco, alcohol or handgun cases, there is no reasonable alternative design.82 Certain handguns provide an exception, because computerized interlock systems, safety locks, or more substantial construction could improve their safety. The American Law Institute, always a leader in the field of legal ethics, passed up an opportunity to set the ethical and legal standard for dealing with these epidemics that take the lives of close to 500,000 people a year.

Fourth, the Restatement (Third) of Torts: Products Liability triggers a reduction in accepted cases. It does this through the back door by requiring that the plaintiff show a "reasonable alternative design." This means that in almost every case the plaintiffs attorney must hire an expert or create a model of a reasonable alternative design before the plaintiff can go to court.84 This has increased the price of every products liability case by, perhaps, $25,000 or more. Since plaintiff's attorneys in products cases tend to refuse cases worth less than $100,000, injured consumers are often left without a remedy.

Fifth, the Restatement (Third) continues to require proximate cause within the context of strict liability. This flawed analysis misleads attorneys, judges, and juries. Once the question of riskutility has been answered by balancing various factors, there is no further issue of proximate cause.85 However, by inserting the question of proximate cause into strict liability analysis, the American Law Institute lays a foundation that is sure to confuse everyone who relies upon the Restatement (Third), including attorneys who are bringing or defending such cases, judges who must decide whether the cases should go to juries, and the juries themselves.

Since the Restatement (Third) section 2(b) has not been adopted by the courts in a majority of the jurisdictions that have considered it to date, it is time for it to be replaced by an accurate presentation of the law.86 One of the earliest cases to reject the Restatement (Third) section 2(b) is Banks v. JCI Americas, Inc.,87 decided in 1994. The Georgia Supreme Court considered a case of improperly labeled liquid drain cleaner and the question of whether Georgia should apply the risk-utility test.88 The court held that the risk-utility test was appropriate for Georgia, and although it considered the Restatement (Third) section 2(b), it did not find it to be appropriate or persuasive and delegated it to a minor footnote.89 This was a dramatic critique by the Georgia Supreme Court of the persuasive power of section 2(b).

A second important case to reject the Restatement (Third) section 2(b) is Denney v. Ford Motor Co.,90 decided by the New York Court of Appeals in 1995. In Denney, a woman was seriously injured when her Ford Bronco II rolled over as she braked and swerved to avoid a deer in the highway.91 She argued that the Ford Bronco II was defective and violated the Uniform Commercial Code's provisions for implied warranty.92 The court rejected the provisions of the Restatement (Third) section 2(b) and held that the product was not defective under the risk-utility test because it had high utility.93 Although the Reporters for the Restatement (Third) had hoped that section 2(b) would subsume and obliterate the Uniform Commercial Code (UCC), the New York Court of Appeals rejected that argument and instead held that the implied warranty provisions of the UCC were controlling.94 The court held the Ford Bronco II violated the implied warranty provisions of the UCC because it was not merchantable.95

Another important case that rejected section 2(b) is Potter v. Chicago Pneumatic Tool Co.,96 decided by the Connecticut Supreme Court in the spring of 1997. Potter is important because it carefully analyzed section 2(b) before rejecting it based on local precedent. After examining state case law, the court held that the provisions of the Restatement (Third) section 2(b) did not reflect the law of Connecticut and therefore refused to follow it.97 The Potter case has been evaluated and criticized in extensive detail by Professors Henderson and Twerski, the Reporters for the Restatement (Third) of Products.98

The Supreme Court of Kansas, in Delaney v. Deere & Co.,99 also considered section 2(b) and rejected it. The Kansas Supreme Court looked at its precedent, held that the Restatement (Third) did not accurately reflect that precedent, and rejected the Restatement provision.100

The state judge's task101 in reading the Restatement (Third) section 2(b) is to read the legal precedent in her jurisdiction and decide whether state precedent requires a disenfranchisement of strict liability and proof of a reasonable alternative design in every case.102 The apparent purpose of the "reasonable alternative design" requirement is to frustrate the consumers and prevent them from bringing suits that might cut into the profits of manufacturing America.103 An accurate restatement of the law of design defect could assist the attorney, judge, and jury rather than mislead them with inaccurate provisions.104

IV. AN EXAMINATION OF THE CASES THAT HAVE CONSIDERED REASONABLE ALTERNATIVE DESIGN SINCE PROMULGATION OF THE RESTATEMENT(THIRD) SECTION 2(B)

The following is an analysis of cases that have discussed the term "reasonable alternative design" over the last eight years.105 The first draft of the Restatement (Third) section 2(b) was published in 1994; the American Law Institute promulgated the final version in 1997.

A. States That Have Rejected the Restatement (Third) 's Reasonable Alternative Design Requirement

1. California

Language in Arena v. Owens Corning,106 suggests that a claimant in California has the choice among three tests for design defect: (1) consumer expectation test, (2) risk-utility, and (3) "failure to warn of known or knowable inherent dangers in the product."107 Accordingly, this asbestos exposure case was tried under the "consumer expectation theory pursuant to plaintiff's express election."108 The California Court of Appeals noted, "Whether or not the defendant is able to design the product in a different way is irrelevant, as the Supreme Court neither requires nor allows proof of the existence of a better design under the consumer expectation test."109 The court concluded, "Although the proposed draft of the Restatement (Third) of Torts: Products Liability, rejects the consumer expectations test as an independent theory, our Supreme Court declined an invitation to overrule the test, and established it as an independent and alternative test for a product defect.110

2. Missouri

In Rodriguez v. Suzuki Motor Corp.,111 the plaintiff was injured while driving her Suzuki Samurai. The defendant, Suzuki Motor Corp., unsuccessfully argued for adoption of the reasonable alternative design test of the Restatement (Third) "as the substantive law of Missouri."112 The court noted, "[T]he elements of a cause of action for design defect under the Restatement (Third) are markedly different from those under the Restatement (Second).113 The court further declared, "Any further consideration of risk-utility was effectively foreclosed by the enactment [of] . . . Missouri's 1987 tort reform act, which, inter alia, codified section 402A of the Restatement (Second) of Torts."114 Finally, the Supreme Court of Missouri "declined the invitation to adopt the reasonable alternative design/risk-utility theory.115

In Leonard v. Bunton Co.,116 the plaintiff was injured in an attempt to clean a walk-behind lawnmower.117 The court rejected the defendant's motion for summary judgment. The court stated, "Missouri has adopted § 402A of the Restatement (Second) of Torts as its rule of strict liability.118 It noted, "[The] consumer expectation test has been embraced by some Missouri courts and rejected by others. . . . 'Unless a court can affirmatively say as a matter of law that the design renders a product unreasonably dangerous, the question is generally one for the jury.119 The court did not mention the Restatement (Third).120

3. Maryland

In Nemir v. Mitsubishi Motors Sales,121 the plaintiff suffered injuries when the seatbelt of a 1991 Dodge Stealth failed.122 The court granted Mitsubishi's motion for summary judgment.123 Rather than adopting the new Restatement (Third), the court chose to adhere to Maryland precedent124 and the Restatement (Second), stating, "For a seller to be liable under § 402A, the product must be both in a 'defective condition' and 'unreasonably dangerous' at the time that it is placed on the market by the seller."125 The opinion did not mention the Restatement (Third) section 2(b).126

4. Pennsylvania

In Weiner v. American Honda Motor Co.,127 the plaintiff was injured when a canister of nitrous oxide slid forward from the back of his 1992 Acura Integra hatchback and pinned him during a single car accident.128 The court concluded as a matter of law that the design of the Acura was not unreasonably dangerous.129 Declaring that claims of design defect in Pennsylvania are governed by the Restatement (Second) of Torts section 402A,130 the court cited section 402A in its entirety131 and did not mention the Restatement (Third).132 The Pennsylvania Supreme Court held:

[T]he question of whether a product is "unreasonably dangerous" is a question of law to be decided by the trial court, the resolution of which depends upon considerations of social policy, . . . including weighing factors such as "the gravity of the danger posed by the challenged design; the likelihood that such danger would occur; the mechanical feasibility of a safer design; and the adverse consequences to the product and to the consumer that would result from a safer design."133

In Riley v. Warren Manufacturing, Inc.,134 a young child received serious injuries after placing his hand into the moving parts of a feed trailer.135 Defendant manufacturer won a directed verdict because "the benefits of the trailer were clear, no feasible alternatives were shown to exist, the trailer was not defective, and there was no evidence that a risk of injury existed for intended users using the machine for its intended use."136 The court stated, "In products liability cases, § 402A of the Restatement (Second) of Torts has been adopted as the law of this Commonwealth."137 The court did not mention the Restatement (Third).138

B. States That Hold Reasonable Alternative Design Is One of Several Factors to Consider in Determining Whether a Product Design Is Defective

1. Colorado

In Barton v. Adams Rental, Inc.,139 the plaintiff was injured while working with an electric sewer auger.140 The evidence given at trial was insufficient for the jury to determine that the product was defective under Colorado's risk-utility analysis.141 Although the case did not turn upon a reasonable alternative design, the court followed Annentrout v. FMC Corp. by saying that a "feasible design alternative may be a factor in the risk-benefit analysis."143 The court did not mention the Restatement (Third). 114

2. New York

In Garnsey v. Morbank Industries, Inc.,145 the plaintiff received injuries when he stuck his hand into a wood chipper in the course of his employment.146 The plaintiff made out a prima facie case by proposing five safer designs for the wood chipper.147 The court stated, "Design defect claims in New York are determined using a risk/utility analysis."148 Further, "In order to make out a prima facie case of strict product liability for design defects, the plaintiff must show that the product 'was not reasonably safe and that the defective design was a substantial factor in causing [the] plaintiff's injury.'"149 Finally, the court noted, "The issue of whether a product is unreasonably dangerous is generally one for the jury to decide, taking into account such factors as alternative designs, their costs, and the usefulness of the product."150

In Urena v. Biro Manufacturing Co.,151 the plaintiff was injured while using a meat cutting machine.152 Denying the defendants' motion for summary judgment, the court stated, "Alternative design evidence is only one piece of the equation which a jury may take into account in determining whether the risk outweighed the utility of the product."153

In Tompkins v. R.J. Reynolds Tobacco Co.,154 the plaintiff allegedly died of lung cancer from smoking Camel cigarettes.155 The court granted summary judgment to the defense on the basis that the "plaintiffs failed to meet their burden pertaining to evidence of a feasible, alternative design."156 However, the court suggested that an alternative design is merely one of several factors to consider. The court cited the following seven Denny v. Ford Motor Co.157 factors to consider in the "utility/risk balancing test":

(1) the utility of the product to the public as a whole; (2) the utility of the product to the individual user; (3) the likelihood that the product will cause injury; (4) the availability of a safer design; (5) the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (6) the degree of awareness of the product's potential danger that can be reasonably attributed to the plaintiff; and (7) the manufacturer's ability to spread the cost of any safety related design changes.158

3. Oregon

In McCathern v. Toyota Motor Corp.,159 the plaintiff was injured during the rollover of her 1994 Toyota 4Runner.160 The Oregon Court of Appeals affirmed a jury verdict in favor of the plaintiff.161 The court stated, "Oregon is one of roughly a dozen jurisdictions that adhere to the consumer expectation test as the standard for determining strict products liability in manufacturing and design defect cases."162 The consumer expectation test "was derived from Comment i of section 402A of the Restatement (Second) of Torts (1965)."163 The court then bifurcated the consumer expectation test into (1) a representational approach, and (2) a consumer risk-utility approach.164 The court reasoned that proof of a reasonable alternative design is essential to the consumer risk-utility approach, but immaterial to the representational approach.165 This ensures that an Oregon plaintiff is able to make out a prima facie case of design defect without presenting a reasonable alternative design.

C. States That Mention the Reasonable Alternative Design Requirement Favorably

Although several courts mention reasonable alternative design favorably, as of October 1, 2002, none had adopted it as a requirement.

1. Georgia

In Jones v. NordicTrack, Inc.166 the plaintiff was injured when she fell against her stationary indoor ski exerciser and severed two veins in her thigh.167 The issue presented was whether a product has to be in use at the time of the injury for a defendant to be held liable for defective design, and the court held in the negative.168 The court cited Banks for the proposition that

[t]he heart of a design defect case is the reasonableness of selecting from among alternative product designs and adopting the safest feasible one. . . . Consequently, the appropriate analysis does not depend on the use of the product, as that may be narrowly or broadly defined, but rather includes the consideration of whether the defendant failed to adopt a reasonable alternative design which would have reduced the foreseeable risks of harm presented by the product.169

The court did not discuss section 2(b) of the Restatement (Third).

2. New Jersey

In Green v. General Motors Corp.,170 the plaintiff was injured when the rear roof of his T-Top Camaro collapsed.171 The court required the plaintiff to propose a reasonable alternative design.172 The plaintiff met this burden by having his expert testify as to two alternative designs for the rear roof of a T-Top Camaro.173 The court stated that "in determining whether the Camaro was defective, a jury must determine the risks and alternatives that should have been known to a reasonable manufacturer, and then assess whether the manufacturer discharged its duty to provide a 'reasonably fit, suitable and safe' vehicle."174 The court continued by noting that "the jury employs a risk-utility analysis" to determine whether the manufacturer discharged this duty.175 The court then stated that, although the classical statement of the riskutility analysis as enumerated in Cepeda v. Cumberland Engineering Co.176 involves seven factors, "the prevalent view is that, unless one or more of the other factors might be relevant in a particular case, the issue upon which most claims will turn is the proof by the plaintiff of a 'reasonable alternative design.'"177 The court cited the Restatement (Third) for this proposition.178 Footnote four of Green favorably cites section 2(b) of the Restatement (Third).179

In Lewis v. American Cyanamid Co.,180 the plaintiff was burned when an indoor pesticide fogger exploded in the kitchen. The court ruled in favor of the plaintiff by affirming the reversal of the defendant's judgment notwithstanding the verdict (JNOV).182 The court cited comment f of section 2 of the Restatement (Third), which states, '"To establish a prima facie case of defect, the plaintiff must prove the availability of a technologically feasible and practical alternative design that would have reduced or prevented the plaintiff's harm.'"183 The plaintiff was able to carry this burden.184

In Smith v. Keller Ladder Co.,185 the plaintiff was injured while using an extension ladder manufactured by the defendant.186 The plaintiff failed to establish a reasonably feasible alternative design for the ladder.187 This court held that the defendant's JNOV motion was properly granted.188 The court cited New Jersey precedent for the proposition that

[u]nless there is some basis for a jury to find that the risks involved in a product's use outweigh its utility even though there is no reasonably feasible alternative design, a plaintiff in a design-defect case is required to show the existence of a "safe and reasonably feasible alternative to [the] defendant's product."189

3. Michigan

In Hollister v. Dayton Hudson Corp.,190 the plaintiff suffered extensive burn injuries when her blouse caught fire after coming in contact with a kitchen stove.191 The court granted the defendant's motion for summary judgment on the design defect issue.192 The court stated, "Although Michigan has not adopted the Proposed Final Draft of the Restatement (Third) of Torts: Product Liability § 2 (April 1, 1997), the Michigan risk-utility test is consistent with the principles of section 2(b)."193 Michigan considers its risk-utility test to be a pure negligence test.194 "Under Michigan's risk-utility test, a plaintiff does not establish a prima facie case of product design defect if evidence of a reasonable alternative design, available and practicable at the time of distribution of defendant's product, is not produced."195 The Michigan six-part risk-utility test requires the plaintiff to show

(1) that the severity of her injury was foreseeable by the manufacturer; (2) that the likelihood of occurrence of her injury was foreseeable by the manufacturer at the time of distribution of the product; (3) that there was a reasonable alternative design available; (4) that the available reasonable alternative design was practicable; (5) that the available and practicable reasonable alternative design would have reduced the foreseeable risk of harm posed by defendant's product; and (6) that omission of the available and practicable reasonable alternative design rendered defendant's product not reasonably safe.196

D. States That Have Incorporated the Restatement (Third)'s Reasonable Alternative Design Requirement into Their Statutes

1. Louisiana

In Lawrence v. General Motors Corp., the plaintiff was injured when her used 1987 Pontiac Bonneville suddenly accelerated into a tree.198 The court held for the defendant manufacturer, citing Louisiana's codification of the reasonable alternative design requirement.199

A product is unreasonably dangerous in design, if, at the time the product left its manufacturer's control: (1) [t]here existed an alternative design for the product that was capable of preventing the claimant's damage; and (2) the likelihood that the product's design would cause the claimant's damage and the gravity of that damage outweighed the burden on the manufacturer of adopting such alternative design and the adverse effect, if any . . . on the utility of the product. . . .200

Under this statute, the plaintiff's evidence was insufficient as a matter of law to support a finding of design defect.201

2. Texas

Texas has codified the reasonable alternative design requirement in section 82.005(a) of the Texas Civil Practice and Remedies Code, which states: "[The] burden is on the claimant to prove by a preponderance of the evidence that: (1) there was a safer alternative design; and (2) the defect was a producing cause of the personal injury, property damage, or death for which the claimant seeks recovery."202 Despite this clear statutory language, subsequent case law has been less than uniform.

In Smith v. Aqua-Flow,203 the plaintiff family sued the defendant manufacturer after six-year-old Stephanie Smith drowned as a result of her hair becoming entangled in their spa's plastic intake cover.204 Although the Smith's expert proposed an alternative design (i.e., an automatic shut-off valve), the court held that the Smiths failed to make out their prima facie case because they failed to show that the design was both technologically and economically feasible.205 The court attempted to reconcile the Restatement (Second) with the Restatement (Third) because "Texas has adopted the Restatement (Second) of Torts section 402A."206 Ultimately, however, the court required the plaintiff to prove a reasonable alternative design in accordance with the Texas Code though the court did not explicitly cite the Restatement (Third).207 The court finally cited American Tobacco Co. v. Grinnell208 for the proposition that "[i]f no evidence is offered that a safer design existed, the product is not unreasonably dangerous as a matter of law."209

In Uniroyal Goodrich Tire Co. v. Martinez, the plaintiff was injured when a sixteen-inch Goodrich tire that he was mounting on a 16.5 inch rim exploded.211 The court affirmed a jury verdict in favor of the plaintiff.212 In a footnote, the court noted that "[a]lthough not applicable to the present case, the Texas Legislature has recently codified the 'reasonably safe alternative' requirement."213 The court was ambiguous in its analysis, stating:

While there is language in Turner suggesting that whether a safer alternative design exists is merely one of the factors to be weighed by the jury, we made clear in Caterpillar that a safer alternative is a prerequisite to a finding of design defect. Our approach in Caterpillar is reflected in the new Restatement.214

However, the court later said, "We agree with the new Restatement that warnings and safer alternative designs are factors, among others, for the jury to consider in determining whether the product as designed is reasonably safe."215 Although the court frequently cited to the Restatement (Third), they did not clarify whether the reasonable alternative design requirement is merely one factor or the primary factor to consider in a design defect case.

In Hayles v. General Motors Corp.,216 a federal district court case, the plaintiff was injured in a single car accident.217 She alleged a defect in the air bag and seat belt systems of her 1995 Chevrolet Silverado were responsible for her injuries. The court stated, "Texas has adopted the strict products liability standard set forth in section 402A of the Restatement (Second) of Torts."219 The plaintiff did not present an expert witness.220 General Motors's motion for summary judgment was granted because the plaintiff "failed to raise a genuine disputed issue of material fact that her vehicle sustained the type of impact necessary to deploy the air bag.221 The court did not mention the Restatement (Third) or the requirement of a reasonable alternative design.

The Fifth Circuit Court of Appeals clarified the law in Smith v. Louisville Ladder Co. The plaintiff was injured from falling off a ladder. 223 The Fifth Circuit reversed the jury verdict in favor of the plaintiff because the plaintiff had failed to show the existence of a safer alternative design.224 The court cited the Texas statute as being on point and requiring proof of a reasonable alternative design.225

3. Mississippi

Watkins v. Telsmith, Inc.226 dealt with the requirements of Daubert.221 In dicta, the court noted a Mississippi products liability statute that defines a reasonable alternative design as '"a design that would have to a reasonable probability prevented the harm without impairing the utility, usefulness, practicality or desirability of the product to users or consumers.'"228

V. CONCLUSION

As the appendix makes clear,229 the American Law Institute has been striving to embrace manufacturers in general and the tobacco industry in particular.230 The Restatement (Third), section 2 reads like a wish list for manufacturing America and immunizes tobacco manufacturers from liability.231 The Supreme Court of Iowa has recently made this bias abundantly clear. In Wright v. Brook Group Limited,232 where the defendant was a tobacco manufacturer, the court adopted sections 1 and 2 of the Restatement (Third) and foreclosed the possibility that the manufacturer of the most dangerous product-tobacco-can be successfully sued for design defect.233 The court noted that under this standard, the consumer can not recover unless she can prove that a reasonable alternative design exists that would have reduced or avoided the foreseeable risk of harm.234

This exemplifies the need for an accurate Restatement of design defect law: one that does not insulate tobacco from liability and one that accurately reflects the developments in legal theory over the last 150 years. A new Restatement (Third) of Torts: Design Defect should rest on over 3,000 cases decided under the Restatement (Second) section 402A. It should be a true restatement of existing case law, not tort reform in the guise of a battle plan for manufacturing America.235 The American Law Institute should not permit the Restatement to insulate the manufacturers of the most dangerous products on the market, nor to shift from strict liability to negligence without a careful consideration of the foundational issues.

FRANK J. VANDALL*

JOSHUA F. VANDALL**

* Professor of Law, Emory University School of Law. B.A. 1964, Washington and Jefferson College; J.D. 1967, Vanderbilt University School of Law; LL.M. 1968, S.J.D. 1979, University of Wisconsin Law School.

** Law Clerk to the Honorable Ronald E. Ginsberg, State Court of Chatham County, Georgia; Emory University School of Law, J.D. 2002; University of Virginia, B.A. 1998.

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