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Product Liability
Update
June 2007
Volume III, Number 5
Calles v. Scripto-Tokai Corp.: Death of the ‘Simple’
Product Exception to the Application of the RiskUtility Test in Strict Liability Design Defect Cases?
By Junga Park Kim and Monica Choi Arredondo
While product liability cases might involve the most sophisticated cutting-edge
products, they also can involve the simplest, and cases involving simple products—
like a ladder or a knife—sometimes present the most conceptually challenging
legal issues. Should a plaintiff be able to recover, for example, if he claims a design
defect in a knife caused him to suffer a cut? There are two standard measures of
whether a product has a defect in its design—the risk-utility (or risk-benefit) test
and the consumer-expectations test—and in a rational system, both should lead to
the denial of recovery in most cases where a knife results in a cut. After all, a knife
is without utility unless it poses some cutting risk, and consumers ordinarily expect
that cuts will occur even with normal, careful knife use.
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But the two tests for design defect are not entirely congruent, and the differences
between them can have profound implications for manufacturers in litigation. In
the pioneer decision, Barker v. Lull Engineering Co., 20 Cal.3d 413, 427-28, (1978),
the California Supreme Court explained that “at a minimum a product must
meet ordinary consumer expectations as to safety to avoid being found defective.” ­Barker, 20 Cal.3d at 426 n. 7. At the same time, the court cautioned that
the expectations of the ordinary consumer could not be “the exclusive yardstick”
for testing design defect for consumer-protection reasons, given that consumers
often might not know what to expect or how safe a product could be made. Id. at
430. Subsequent cases have refined the issue in California, recognizing that the
consumer-expectations test makes sense only for products that are both simple and
familiar, such that “the everyday experience of the product’s users permits a conclusion that the product’s design violated minimum safety assumptions.” Soule v.
General Motors Corp., 8 Cal.4th 548, 567 (1994). For more complex products, the
appropriate design defect test is the risk-utility test, in which “the risks and benefits
of a challenged design must be carefully balanced whenever the issue of design
defect goes beyond the common experience of the product’s users.” Id.
A court’s ruling that one or the other test must apply can be outcome-determinative. The consumer-expectations test usually involves little more than the jury’s
instinct about what an ordinary consumer might expect of a product’s safety, while
the risk-utility test usually involves competing experts and detailed evidence about
(continued on page 2)
ReedSmith
“Calles v. Scripto-Tokai Corp.: Death of the ‘Simple’ Product Exception…?” – cont’d from page 1
feasible alternative designs, and an
emphasis on the beneficial attributes
of the product design and the safety
trade-offs made to secure those benefits.
At the same time, a product’s open and
obvious risk may readily fit within the
consumer-expectations test paradigm,
fitting comfortably within a juror’s
sense of who bears responsibility for
patent danger, while under the riskutility test, the open and obvious nature of a danger may have little impact
on an assessment of whether the design
served little benefit, or whether risk
could have been minimized with a different safety feature.
Until earlier this year,
Illinois was among the last
states to recognize an
exception to the application
of the risk utility test for
“simple” products with
“open and obvious dangers”
in strict liability design
defect cases.
Until earlier this year, Illinois was
among the last states to recognize an
exception to the application of the riskutility test for “simple” products with
“open and obvious dangers” in strict
liability design defect cases. Under this
exception, lower Illinois courts had
concluded that where a simple product
carried an open and obvious danger,
only the consumer-expectations test
could be used. Frequently, the result
was that juries would conclude that
ordinary consumers would appreciate
the open and obvious nature of the
risk, making the product design defectfree. But earlier this year in Calles v.
Scripto-Tokai Corp., 864 N.E.2d 249
(Ill. 2007), the Illinois Supreme Court
rejected this theory, concluding that the
risk-utility test had application even
for simple products, and that open and
obvious nature of a danger could be
just one of many factors to be weighed
by that test. Id. at 260.
Like most product liability decisions,
the Calles decision was grounded in
policy reasons. The court believed
that limiting the test for design defects
for simple products to the consumerexpectations test would essentially
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absolve manufacturers from liability
in situations where reasonable and
feasible safer designs existed, but the
manufacturer declined to incorporate
them because it knew it would not be
held liable, thereby discouraging product improvements that could easily and
cost-effectively alleviate the product
danger. At the same time, it believed a
per se rule would frustrate the policy of
preventing future harm—the heart of
strict products liability. Id.
Origins of the “Simple” Product
With an “Open and Obvious
Danger” Rule in Illinois
In Illinois, the simple product exception to the application of the riskutility test in design defect cases was
first developed in Scoby v. Vulcan-Hart
Corp., 569 N.E.2d 1147 (1991). In
Scoby, a restaurant worker was injured
while working in the kitchen, where he
slipped, submerging his arm in hot oil
in an open deep-fat fryer. The worker
sued the fryer manufacturer, alleging
a design defect, and argued that it was
liable under the risk-utility test because
additional safety features like a cover
could have prevented his accident. Id.
at 1148–49.
Noting that hot oil in a fryer was an
open and obvious danger and that, for
efficient kitchen operation, it was often
necessary to keep a lid off the fryer, the
Scoby court concluded:
We do not deem that…all manufacturers…should be subject to
liability depending upon a trier of
fact’s balancing under [the riskutility] test…. Somewhere, a line
must be drawn beyond which
the danger-utility test cannot be
applied. Considering not only the
obvious nature of any danger here
but, also, the simple nature of the
mechanism involved, we conclude
the circuit court properly applied
Product Liability Update
only the consumer-user contemplation test.
Id. at 1151 (emphasis added).
Subsequently, several Illinois courts
(including a number of federal courts
in diversity cases) followed Scoby,
finding the product or injury mechanics at issue so simple, and the alleged
danger so open and obvious, that the
risk-utility test was deemed superfluous in determining whether a design
defect existed. See, e.g., Haddix v. Playtex. Fam. Prods. Corp., 138 F.3d 681,
685 (7th Cir. 1998) (applying Illinois
law) (tampon deemed simple); Todd
v. Societe Bic, S.A., 21 F.3d 1042 (7th
Cir. 1994) (cigarette lighter deemed
simple). In the case of simple products
containing open and obvious dangers,
the fact finder would almost always
find that the product worked exactly
as intended and had no design defect.
See, e.g., Todd, 21 F.3d at 1407, 1412
(disposable lighter worked exactly as
manufacturer intended by producing a
flame).
Not surprisingly, after Scoby, manufacturers sued in Illinois routinely argued
that their products were simple and
the alleged defect an open and obvious
danger, while plaintiffs took to arguing
that the risk-utility test should be used
instead. See, e.g., Miller v. Rinker Boat
Co., 815 N.E.2d 1219 (2004). In other
jurisdictions, the opposite is often true,
with plaintiffs advocating the use of the
malleable consumer expectations test
and manufacturers advocating the use
of the more rigorous and expert-dependent risk-utility test. See Henderson &
Twerski, Consumer Expectations’ Last
Hope, 103 Colum. L. Rev. 1791, 1792
(Nov. 2003) (“The consumer expectations test as it is currently advocated
by…most of the plaintiffs’ bar is an
unprincipled, intellectually bankrupt
approach to design-based liability that
only a proponent of unrestricted liability could knowingly embrace.”).
Scoby did not, however, receive universal acceptance in Illinois. Over the
years, several decisions distinguished
Scoby on its facts, and concluded
other products were not simple. See,
e.g., Hansen v. Baxter Healthcare Corp.,
764 N.E.2d 35, 45-46 (Ill. 2002) (IV
catheter connector not simple); Miller,
815 N.E.2d at 1232-33 (Ill. Ct. App.
2004) (boat motor not simple); Mele
v. Howmedica, Inc., 808 N.E.2d 1026,
1041 (Ill. Ct. App. 2004) (artificial hip
implant not simple).
The issue, however, remained open.
While the Illinois Supreme Court had
made references to the Scoby case in
prior decisions, it never had the opportunity to squarely address the validity
of the simple product exception. See
Blue v. Envtl. Eng’g, Inc., 828 NE.2d
1128 (2005) (strict liability design
defect claim not at issue); Hansen, 764
NE.2d at 46 (finding Scoby inapposite
because IV catheter connector was not
simple). Indeed, in Lamkin v. Towner,
563 NE.2d 449, 530 (1990), the Illinois Supreme Court applied both the
consumer-expectations and the riskutility tests in determining the manufacturer’s liability for strict liability
design defect, though the case involved
a simple window screen.
The Diminishing Vitality of the
Open and Obvious Rule
When the Illinois Supreme Court
finally squarely addressed the question of whether simple products with
open and obvious dangers must always
(continued on page 4)
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ReedSmith
“Calles v. Scripto-Tokai Corp.: Death of the ‘Simple’ Product Exception…?” –
cont’d from page 3
be judged using the consumer expectations test in Calles, it framed the issue in a
manner that did note bode well for the defendant. It stated that Scoby’s adoption of
a simple product exception was equivalent to a general rule that manufacturers are
not liable for open and obvious dangers. Calles, 864 N.E.2d at 258.
A majority of courts have rejected the “open and obvious” or “patent danger” rule
as an absolute defense to a design defect claim. Rest. (3d) Torts: Prods. Liabl. §2,
cmt. d, at 84 (1998). Instead, most courts now consider the obviousness of an alleged defect as one of many factors to consider in determining whether a product is
defective in design. See, e.g., Pike v. Frank G. Hough Co., 467 P.2d 229 (Cal. 1970)
(en banc); Micallef v Miehle Co., 348 N.E.2d 571, 578 (N.Y. 1976). That said, the
open and obvious danger rule still has wide and continuing validity in failure-towarn cases. See, e.g., Boyce v. Gregory Poole Equip. Co., 605 S.E.2d 570 (Ga. Ct.
App. 2004), review denied (open and obvious danger no longer bars design defect
claims, but may bar failure-to-warn claims).
Indiana, North Carolina and Virginia are among the few jurisdictions that still follow the open and obvious danger rule in design defect cases. See Coffman v. Austgen’s Elec., Inc., 437 N.E.2d 1003, 1008 (Ind. Ct. App. 1982); McCollum v. Grove
Mfg. Co., 293 S.E.2d 632 (N.C. Ct. App. 1982); Marshall v. H.K. Ferguson Co., 623
F.2d 882, 886 (4th Cir. 1980) (applying Virginia law). Moreover, in those jurisdictions
where the consumer-expectations test remains the sole test for determining liability
in design defect cases (including Nebraska, Oklahoma, and Wisconsin), the test
itself often leads to a similar result regardless of express adoption of the rule. See
Rest. (3d) Torts: Prods. Liab. §2, cmt. d, at 85; see also Lamke v. Futorian Corp., 709
P.2d 684, 686 (Okla. 1985) (no liability where danger posed by a lit cigarette on a
sofa was obvious); Vincer v. Esther Williams All-Aluminum Swimming Pool Co., 230
N.W.2d 794, 798 (Wis. 1975) (swimming pool not defective because of presence
of retractable ladder because such conditions were obvious and average consumer
would have been aware of the risk of harm to small children where retractable ladder was left in a down position and child was left unsupervised).
CONTR I B UTOR S TO TH I S I SSU E
Monica Choi Arredondo
Associate, Los Angeles
213 457 8318
mchoi@reedsmith.com
Monica is a member of the
firm’s Litigation Group in
the Los Angeles office. She
focuses her practice on commercial litigation and product
liability work.
Junga Park Kim
Partner, Los Angeles
213 457 8009
jkim@reedsmith.com
Junga’s practice involves
complex product liability
matters, including mass
torts, and claims for unfair
business practices under
§ 17200 and other similar
statutes.
Ultimately, Calles was another blow to the application of the open and obvious danger rule as a complete bar in design defect cases, albeit not an entirely surprising
result given the widespread criticism by academic commentators. See Rest. (3d)
Torts: Prods. Liab. §2, cmt. d, at 85 (citations omitted).
Product Liability Update is published by Reed
Smith to keep clients and friends informed of legal
developments in product liability law. It is not
intended to provide legal advice to be used in a
specific fact situation.
The editor of Product Liability Update is Lisa M.
Baird (213.457.8036), with the firm’s Los Angeles
office.
“Reed Smith” refers to Reed Smith LLP, a limited liability partnership formed in the state of Delaware.
©Reed Smith LLP 2007.
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