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The Consumer Expectations Test and Product Liability Claims

Monday, April 16, 2018By Richard Alexander

In California, the test that a court uses to determine a design defect in a product can make all the difference in the outcome. The two design defect tests applied by the courts are the consumer expectations test and the risk/benefit test. The choice of which analysis to apply is critical and for this reason, parties often vigorously contest this issue.

Consumer expectations test. The consumer expectations test assesses a product based on whether the product performed its function as safely as a typical consumer would anticipate. This test is simple in its application because most people can easily compare their expectations of a product against the actual performance of the product. One of the appealing aspects of this test is that it does not require the introduction of expert testimony. Plaintiffs generally prefer this more lenient test since the main source of information in considering product liability are the experiences and assumptions of the jury.

Risk/benefit test. Under this test, a product is regarded as defective if its design contains unreasonable dangers that could be avoided. In other words, the court asks whether an alternative design, which could be generated at a reasonable cost, could have diminished the foreseeable risks associated with the product. The risk/benefit test often requires expert testimony and is a more stringent methodology in determining if a product is in fact defective.

Application of product liability tests in California. In a recent holding by the Ninth Circuit in California, the Court upheld the decision to instruct the jury to apply the risk/benefit test rather than the consumer expectations test. The case focused on a product liability claim arising from a defect in the strength of the roof of a vehicle in a crash. The plaintiffs stated that their Ford Explorer roof had a vertical intrusion of 8 inches into the cabin during a rollover crash that killed the driver. They alleged that there should have been no more than 3 inches of protrusion and that the lack of adequate rigidity was an unreasonably dangerous condition and a defect in the design of the car.

The plaintiffs argued that the consumer expectations test should be applied, but the court disagreed. In holding that the risk/benefit test is the right analysis, the court stated that consumers are not likely to have expectations about the degree of protrusion of a roof in a rollover crash. Most drivers do not have sufficient knowledge on this topic and such conclusions mandate expert analysis. At least in product liability cases involving design defects in cars, the risk/benefit test appears to be the preferred avenue of analysis. Because of the complexity of car design and technology, the experience of ordinary users is not the most valuable or relevant source of information.

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