Pennsylvania Association for Justice
New Face of Strict Liability Law in PA
Monday, December 8, 2014
12:00 p.m. – 2:00 p.m.
Telephone Seminar
Presented by
Cliff Rieders
Jim Ronca
Tom Anapol
Alan Feldman
History
• Enterprise theory of liability, an American Law
Institute project funded by big tobacco and big
insurance.
• Enterprise theory project shelved after its
sponsors were revealed.
• Big proponents of the enterprise theory were
Professor Victor Schwartz and Dick Thornburgh.
2
History
• Professors Twersky, Brooklyn Law School, and
James Henderson, Cornell, were appointed
reporters.
• Both had written widely in support of “tort
reform” in connection with products liability.
3
History
• The original Restatement Third did not cite
Pennsylvania law at all.
• Several years of debate and exchange of positions
followed.
• The modern prosser turned out to be the
unassuming Professor Oscar Gray, who stood up
to the Congress of the American Law Institue and
pointed out the unfairness of the Restatement
Third. The room was in rapt silence listening to
Professor Gray.
4
History
• After much discussion at the Consultative
Group level, Professor Twersky agreed to add
the “Pennsylvania commentary” found at
page 54 of the soft cover edition, Restatement
of the Law Third Torts, Products Liability
Section 1-end with Reporters’ Notes, tables
and index.
5
History
• “Although Pennsylvania case law governing
products liability is sometimes difficult to
decipher, a careful analysis of Pennsylvania’s
appellate decisioins suggest that its law may
be read to be consistent with the rules set
forth in § 2.”
6
History
• The Pennsylvania commentary was uncritical of
Azzarello v. Black Brothers, 391 A.2d 1020 (Pa.
1978).
• With respect to the “every element necessary”
language, the reporter said:
– Although the Reporters, joined by most critics, find
this language unduly harsh, it does point to the need
to prove the existence of a way to make the product
safer; otherwise, how would the presence or absence
of an “element necessary to make it safe” be
determined?
7
History
• The Reporters noted: The most important
difference between Pennsylvania law and the
position in §§ 2(b) and 2(c) is that
Pennsylvania does not require a finding that
specific risks arising out of a foreseeable
product use were reasonably knowable by the
defendant.
• Tincher does not change this.
8
History
• In sum, when one views Pennsylvania law and its
broad sweep, both risk-utility analysis and the
need to introduce evidence of a reasonable
alternative are well-established and consistent
with the views of this Restatement. The harsh
language of the Pennsylvania jury instructions
does not set forth the rules for a prima facie case
of defect. The instructions are the prism through
which the Pennsylvania courts wish the jury to
judge cases once a prima facie case as been
established.
9
History
• Tincher will therefore permit the jury to do
what the judge did before and otherwise does
not change Pennsylvania law.
10
Pre-Tincher v. Omega Flex, Inc.
• The court determines the risks of the danger
of the product versus the utility of the device
and then the jury decides whether the
manufacturer or supplier delivered a product
in a defective condition.
11
Pre-Tincher v. Omega Flex, Inc.
Ultimately, the question is whether the focus for
defective design should be on the product or
the manufacturer and not the user.
12
PA Law Pre-Tincher v. Omega Flex, Inc.
• Federal courts applying the Pennsylvania law
essentially disregarded the Pennsylvania
Supreme Court and held that the Restatement
Third approach would apply; focus on the user
in terms of reasonableness.
13
Tincher v. Omega Flex, Inc.
Primary Rulings
1. Decisional law announced by Azzarello and its progeny is
overruled as to standards of proof, jury instructions and how
and by whom “defect is determined
14
Tincher v. Omega Flex, Inc.
Primary Rulings
1. Decisional law announced by Azzarello and its progeny is
overruled as to standards of proof, jury instructions and how and by
whom “defect” is determined
2. A Plaintiff may prove a product was designed in a
defective condition by showing either that:
(a) the danger is unknowable and unacceptable to the average
or ordinary consumer, or
(b) a reasonable person would conclude that the
probability and seriousness of harm caused by the product
outweigh the burden or costs of taking precautions.
15
Tincher v. Omega Flex, Inc.
Primary Rulings
3. The question whether a product is in a defective condition is
for the fact finder not the Trial Court unless reasonable minds
would not differ on this question—removing from the
proceedings the Azzarello pre-trial issue which allowed the Court
to decide the policy question whether a product is “legally”
unreasonably dangerous.
16
Tincher v. Omega Flex, Inc.
Primary Rulings
3. The question whether a product is in a defective condition is for
the fact finder not the Trial Court unless reasonable minds would
not differ on this question—removing from the proceedings the
Azzarello pre-trial issue which allowed the Court to decide the policy
question whether a product is “legally” unreasonably dangerous.
4. Rejecting the legal principles defining Products Liability
set forth in the Restatement (Third) of Torts—which in major
part requires the Plaintiff prove an alternative design.
17
Tincher v. Omega Flex, Inc.
• The plaintiff will have the option of premising their
case either upon “consumer expectations” or “riskutility” theory or both.
• The calculus for a plaintiff and a plaintiff’s advocate in
choosing to pursue either theory or both will likely
account, among other things, for the nature of the
product, for the theoretical limitations of either
alternative standard of proof, for whether pursuing
both theories simultaneously is likely to confuse the
finder of fact and, most importantly, for the evidence
available or likely to become available for trial.
18
Tincher v. Omega Flex, Inc.
MAJOR EFFECTS
1. Ends the application of different rules in the Federal versus
State Courts. Same law now applies to both.
2. Affects already filed cases (need to amend?)
3. On existing cases, affects what you have to prove. Do you
have the right expert reports on the right issues?
4. What defenses are applicable?
19
Tincher v. Omega Flex, Inc.
Consumer Expectations Test
“The consumer expectations test defines a “defective condition” as a condition,
upon normal use, dangerous beyond the reasonable consumer’s contemplations.”
That seems simple enough
“The test offers a standard of consumer expectations which, in typical common law
terms, states that: the product is in a defective condition if the danger is
unknowable and unacceptable to the average or ordinary consumer.”
Wait a minute, what does “unknowable” mean
“The product is not defective if the ordinary consumer would reasonably
anticipate and appreciate the dangerous condition of the product and the attendant
risk of injury of which the plaintiff complains (e.g., a knife).”
This is not quite assumption of risk. If the danger is foreseeable does that make
the product not defective?
“The nature of the product, the identity of the user, the product’s intended use and
intended user, and any express or implied representations by a manufacturer or
other seller are among considerations relevant to assessing the reasonable
consumer’s expectations.”
Is the consumer charged with the knowledge in the user manual?
20
Tincher v. Omega Flex, Inc.
Consumer Expectations Test
Factors:
1. The nature of the product,
2. The identity of the user,
3. The product’s intended use and intended user, and
4. Any express or implied representations by a
manufacturer or other seller are among considerations
relevant to assessing the reasonable consumer’s
expectations. Slip Opinion p. 95.
21
How the Consumer Expectations Test will
be handled under Tincher is unclear.
Can we get some help from other
Jurisdictions?
22
Barker v. Lull Engineering Co., 573 P.2d 443 (Cal. 1978)
is cited in Tincher multiple times
Barker Ruled
A product is defective in design either
(1) if the product has failed to perform as safely as an
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.
Tincher v. Omega Flex, Inc.
• With strict liability the focus is on the nature
of the product and the consumer’s reasonable
expectations with respect to the product,
rather than upon the conduct of either the
manufacturer or the person injured. Slip
Opinion p. 63.
24
“UNREASONABLY DANGEROUS” IS NOT FOR
THE JURY UNDER BARKER
“In
Cronin, we reviewed the development of the strict
product liability doctrine in California at some length, and
concluded that, for a variety of reasons, the "unreasonably
dangerous" element which section 402A of the
Restatement Second of Torts had introduced into the
definition of a defective product should not be
incorporated into a plaintiff's burden of proof in a
product liability action in this state.”
Footnote 7 in Barker
Consumer Expectations is a floor, not a ceiling to the manufacturer’s
responsibility.
Footnote 9 in Barker
not “intended use” but “reasonably foreseeable use”
The Court also referred frequently and favorably to Soule v.
Gen. Motors Corp., 882 P.2d 298, 308 (Cal. 1994)
Interpreting Barker, the Soule Court said:
At a minimum, said Barker, a product is defective in design
if it does fail to perform as safely as an ordinary
consumer would expect. This principle, Barker asserted,
acknowledges the relationship between strict tort liability for
a defective product and the common law doctrine of
warranty, which holds that a product's presence on the market
includes an implied representation " 'that it [will] safely do
the jobs for which it was built. “Under this [minimum]
standard," Barker observed, "an injured plaintiff will
frequently be able to demonstrate the defectiveness of the
product by resort to circumstantial evidence, even when
the accident itself precludes identification of the specific
defect at fault.
Consider this case, referred to specifically in Soule:
Campbell v. General Motors Corp. 32 Cal.3d 112, 184 Cal. Rptr. 891, 649 P.2d
224 (1982)
Campbell, a bus passenger, was thrown from her seat and injured
during a sharp turn. She sued GM, the manufacturer of the bus,
alleging that the vehicle was defectively designed because there
was no "grab bar" within easy reach of her seat. Campbell
presented no expert testimony, but she submitted photographs
of the interior of the bus, showing where safety bars and
handles were located in relation to the seat she had occupied. At
the conclusion of her case in chief, GM moved for nonsuit, arguing
that her evidence of design defect and proximate cause was not
sufficient. The trial court granted the motion, but we reversed.
In Soule, The California Supreme Court said “Campbell provided
additional strong hints about the proper use of the ordinary consumer
expectations prong of Barker.”
“We emphasized that in order to establish a design defect under Barker's ordinary
consumer expectations test, it was enough for Campbell to show "the
objective conditions of the product" so that the jurors could employ their
own sense of whether the product meets ordinary expectations as to its
safety under the circumstances presented by the evidence. Since public
transportation is a matter of common experience, no expert testimony was
required to enable the jury to reach a decision on this part of the Barker
inquiry.“
"Indeed, it is difficult to conceive what testimony an 'expert' could provide.
The thrust of the first Barker test is that the product must meet the safety
expectations of the general public as represented by the ordinary consumer,
not the industry or a government agency. '[O]ne can hardly imagine what
credentials a witness must possess before he can be certified as an expert on
the issue of ordinary consumer expectations.' “
Consider also this case West v. Johnson & Johnson Products, Inc. 174
Cal.App.3d 831, 220 Cal.Rptr. 437 (1985), which the Soule Court referred to
as having a “similar effect” to Campbell:
The plaintiff in West became seriously ill in February 1980, during her
menstrual period. At this time, there were increasing indications that tampon
use sometimes causes toxic shock syndrome (TSS). After reading medical
reports, plaintiff's physicians belatedly concluded that she had suffered TSS
caused by tampons which defendant had designed and produced. At trial,
experts debated the nature of plaintiff's illness, and they also disputed
whether the tampon design and materials used by defendant encouraged TSS.
The trial court instructed only on the consumer expectations prong of Barker.
On appeal, defendant argued that the risk-benefit test alone was proper.
However, West agreed …that Campbell does not preclude the consumer
expectations test in complex cases involving expert testimony. In a time
before general awareness and warnings about TSS, the court reasoned,
plaintiff "had every right to expect" that use of this seemingly innocuous
product "would not lead to a serious (or perhaps fatal) illness...." Hence,
the consumer expectations instruction was appropriate.
Soule and the use of the Consumer Expectations Test in
crashworthiness cases
GM suggests that the consumer expectations test is improper whenever
"crashworthiness," a complex product, or technical questions of causation are at
issue. Because the variety of potential product injuries is infinite, the line cannot
be drawn as clearly as GM proposes. But the fundamental distinction is not
impossible to define. The crucial question in each individual case is whether
the circumstances of the product's failure permit an inference that the
product's design performed below the legitimate, commonly accepted
minimum safety assumptions of its ordinary consumers.
We fully understand the dangers of improper use of the consumer expectations
test. However, we cannot accept GM's insinuation that ordinary consumers lack
any legitimate expectations about the minimum safety of the products they use.
In particular circumstances, a product's design may perform so unsafely
that the defect is apparent to the common reason, experience, and
understanding of its ordinary consumers. In such cases, a lay jury is
competent to make that determination.
Tincher v. Omega Flex, Inc.
Risk/ Utility Test
The court wrote that the consumer expectations
test alone would not be sufficient to vindicate
basic public policy undergirding strict liability.
Slip Opinion p. 98.
32
Tincher v. Omega Flex, Inc.
Risk/ Utility Test
A reasonable person would conclude that the
probability and seriousness of harm caused by
the product outweigh the burden or costs of
taking precautions.
33
Tincher v. Omega Flex, Inc.
Risk/ Utility Test
• “Stated otherwise, a seller’s precautions to
advert the danger should anticipate and
reflect the type and magnitude of the risk
posed by the sale and use of the product.”
Slip Opinion p. 98-99.
34
Tincher v. Omega Flex, Inc.
Risk/ Utility Test
The Risk/Utility test is designed to be used in
more complex cases, primarily design defect
cases
35
Tincher v. Omega Flex, Inc.
Risk/ Utility Test
• The court reminds the bench and bar that the
plaintiff, generally, is the master of the claim
in the first instance. Opinion Slip p. 103. The
court will be the “gatekeeper” as it is in the
other case with respect to summary judgment
principles ,but otherwise the balancing of
factors in a risk-utility case will be performed
by the jury consistent with preexisting
Azzarello principles.
36
Tincher v. Omega Flex, Inc.
• The factors to be considered in the risk-utility
balancing test. They are as follows:
(1) The usefulness and desirability of the product-its
utility to the user and to the public as a whole.
(2) The safety aspects of the product-the likelihood
that it will cause injury, and the probable
seriousness of the injury.
(3) The availability of a substitute product which
would meet the same need and not be as
unsafe.
37
Tincher v. Omega Flex, Inc.
(4) The manufacturer's ability to eliminate the unsafe
character of the product without impairing its
usefulness or making it too expensive to maintain its
utility.
(5) The user’s ability to avoid danger by the exercise of
care in the use of the product.
(6) The user’s anticipated awareness of the dangers
inherent in the product and their availability,
because of general public knowledge of the obvious
condition of the product, or of the existence of
suitable warnings or instructions.
(7) The feasibility, on the part of the manufacturer, of
spreading the loss by setting the price of the product
or carrying liability insurance. Slip Opinion p. 99.
38
Tincher v. Omega Flex, Inc.
• The court cites with approval Barker v. Lull
Engineering Co., 573 P.2d 443 (Cal. 1978), which
ruled that in certain circumstances where the
risk-utility theory is utilized, the burden is be
shifted to the defendant to demonstrate that an
injury producing product is not defective.
• Tincher refers favorably to Barker but leaves this
question open
39
Tincher – One Big Question Answered
A zillion questions remain:
Particularly relevant here, we note that the area of strict liability law
remains complex and our decision here does not purport to foresee and
account for the myriad implications or potential pitfalls as yet unarticulated
or unappreciated. Thus, at the trial level, and as with other legal concepts,
“it is incumbent upon the parties, through their attorneys, to aid courts in
narrowing issues and formulating appropriate instructions to guide juries in
their factual determinations. . . .” It is worth reiterating that “[b]right lines
and broad rules always offer a superficially enticing option. However, we
cannot elevate the lull of simplicity over the balancing of interests
embodied by the principles underpinning [the jurisprudence of the relevant
area of law.
40
Tincher – One Big Question Answered
A zillion questions remain:
• Does Pennsylvania now permit the jury to hear
and decide whether or not a product is
“unreasonably dangerous”? Does introduction of
this phrase depend upon whether the plaintiff
proceeds per the CET or the RBT?
• Does Pennsylvania still consider the product
manufacturer the guarantor of the product’s safety
or should the defendant’s duty be characterized in
accordance with this analysis: [Tincher, supra. at
88]
41
Tincher – One Big Question Answered
A zillion questions remain:
• Are there any limits to the application of the CET? In other
words, are there any products which should not be judged
by this legal standard? If so, how is that decided? Can a
trial court refuse to allow a party to present her case per the
CET? How can court exclude the application of the CET in
light of the proposition established in Tincher that the
Plaintiff is entitled to choose which theory of liability to
submit for jury resolution?
• What are the appropriate jury instructions defining the CET;
• what are the parties’ respective burdens of proof;
• What are the relevant defenses to such a claim?
42
Tincher – One Big Question Answered
A zillion questions remain:
•
•
•
•
•
Under what circumstances can a plaintiff proceed with dual theories—CET and
RBT? Would a jury verdict finding liability on one theory and not the other be
considered inconsistent?
Under the CET, what is a danger beyond the contemplation of the ordinary
consumer?
If the court determines that the standard for invoking the CET is the danger is
“unknowable” and if there are warnings, does the warning make the danger
"knowable".
If the danger is known to the actual user (subjective test) will that defeat a claim
when the danger was unknowable to the ordinary or average consumer (Objective
test). In other words is knowledge a defense in the sense of assumption of risk or in
some lesser sense?.
What needs to be knowable? Drug labels have warnings, precautions and reported
side effects. What if the problem suffered by the plaintiff was a reported side effect,
but not in warnings or precautions? Does that make the side effect "knowable?”
What about info findable in the internet?
• Tincher was a design defect case and the opinion does not discuss defective
warnings or instructions as a claim in any detail. What are he
considerations for defective warnings. Is a product defective if there are
insufficient warnings?
43
Tincher – One Big Question Answered
A zillion questions remain:
 Under the RBT was are the relevant legal and factual defenses?
 In adjudicating the RBT in warnings cases, what are the costs of taking
precautions? A warning seems particularly low cost. Yet, a warning
might adversely affect sales of the product. Is that a cost?
 How is an “unacceptable” risk determined? What evidence is probative.
• Can defendants offer evidence of absolute risk to determine if risk is
"acceptable". For example GM ignition switch, millions of cars but
only 32 deaths. Absolute risk if 2.6 million cars 0.000012 or 0.0012%.
The chance of being struck by lightning in a given year is higher
0.000046 or 0.0046%.
• Can evidence that the device met standards inform whether the risk is
acceptable? In other words, do standards set by governments or the
scientific community (e.g. ANSI) help define what is acceptable? If
standards are admissible then can plaintiff offer evidence that standards
are out of date?
44
Tincher – One Big Question Answered
A zillion questions remain:
• How do we define the details of the " burden or costs of
taking precautions"
• When? At the time of design? At the time of manufacture?
At the time of sale? At the time of injury?
• What if a manufacturer finds out about a risk after sale, and
a recall would be simple and fairly inexpensive, like a
change in instructions?
• What about drug and medical device cases? If 402A
remains, does that mean that comment k remains and the
recent jurisprudence of failure to warn, and failure to test
still stand? Is “learned intermediary” still viable, especially
in the age of direct to consumer advertising
45
Tincher v. Omega Flex, Inc.
Areas Of Dispute
• Has the court endorsed the policy underlying
the Restatement 402A, that a manufacturer is
effectively the guarantor of its product’s
safety. Footnote 12, p. 52, Slip Opinion.
46
Tincher v. Omega Flex, Inc.
Areas Of Dispute
• There is some language in Justice Castille’s
opinion to support continued use of the
Berkebile/Azzarello language. Opinion Slip p.
57. Both Berkebile and Azzarello spoke to
“broader considerations” which feature a
warranty rationale. That approach is not
wrong, but simply, according to Tincher, did
not give the jury sufficient guidance.
47
Tincher v. Omega Flex, Inc.
Areas Of Dispute
• Did Tincher eliminate the use of “every
element” necessary language or “guarantor”
wording except to the extent that it stood
alone with the jury unable to balance riskutility.
48
Tincher v. Omega Flex, Inc.
Jury Instructions
49
Tincher v. Omega Flex, Inc.
Jury Instructions
With respect to the jury charge, the “crucial role
of the trial court is to prepare a jury charge
that explicated the meaning of ‘defective
condition’ within the boundaries of the law,
i.e., the alternative test standard, and the
facts that pertain.” Opinion Slip p. 132-133.
50
Tincher v. Omega Flex, Inc.
• Proposed new jury charge based upon Tincher:
Option 1:
• Plaintiff(s) have brought a strict liability cause of action.
• Plaintiff(s) must prove that the product is in a defective
condition
• Plaintiff (s) may prove the defective condition by showing
either that: (1) the danger is unknowable and unacceptable
to the average or ordinary consumer, or that (2) a
reasonable person would conclude that the probability and
seriousness of harm caused by the product outweigh the
burden or costs of taking precautions.
51
Option 1 cont’d.
A manufacturer may not preclude and injured
plaintiff’s recovery by forcing him to prove
negligence in the manufacturing process.
The seller must provide with the product every
element necessary to make it safe for use.
The seller is the guarantor of the product and
you may find a defect where the product left the
supplier’s control lacking any element necessary to
make it safe for its intended use or possessing any
feature that renders it unsafe for the intended use.
52
Option 1 cont’d.
A seller, by marketing his product for use and
consumption, has undertaken and assumed a special
responsibility toward any member of the consuming public
who may be injured by it; that public has a right to and
does expect, in the case of products which it needs and for
which it is forced to rely upon the seller, that reputable
sellers will stand behind there goods; that public policy
demands that the burden of accidental injuries caused by
products intended for consumption to be placed on those
who market them, and be treated as a cost of production;
and that a consumer of such product is entitled to the
maximum of protection at the hands of someone, and
proper persons to afford it are those who market the
product.
53
Option 1 cont’d.
Where the plaintiff is claiming a failure of
consumer expectation, you should consider the
following:
1. The nature of the product;
2. The identity of the user;
3. The product’s intended use;
4. The intended user of the product;
5. Any express or implied representation by a
manufacturer or other seller.
54
Option 1 cont’d.
Powerful reasons support protections of a consumer’s
expectations of product safety that arise from the safety
representations of a manufacturer of other seller,
whether those representations be expressed or implied.
When making safety “promises” in an effort to sell its
product, a manufacturer seeks to convince potential
buyers that its affirmations are both valuable and true.
Safety information is valuable to users because it provides
a “frame of reference” that permits a user to shift his or
her limited understand an other resources away from selfprotection toward the pursuit of other goals – which in
turn shifts responsibility for protecting the user to the
manufacturer.
55
Option 1 cont’d.
In this manner, true safety information adds
value to the product by enhancing the user’s
autonomy, for which value the consumer fairly pays
a price. So, if the information is not true but false,
the purchaser loses significant autonomy, as well as
the benefit of the bargain. Since an important
purpose of the law is to promote independence, and
the equality of the buyer to the seller as reflected in
their deal, the law fairly may demand that the seller
repair any underlying falsity and resulting inequality
in the exchange transaction if harm results.
56
Option 1 cont’d.
Where a plaintiff pursues a risk-utility theory, the
following factors should be considered:
(1) The usefulness and desirability of the product-its
utility to the user and the public as a whole.
(2) The safety aspects of the product-the likelihood
that it will cause injury, and the probable seriousness of
the injury.
(3) The availability of a substitute product which
would meet the same needs and not be as unsafe.
(4) The manufacturer’s ability to eliminate the unsafe
character of the product without impairing its usefulness
or making it too expensive to maintain its utility
57
Option 1 cont’d.
(5) The user’s ability to avoid danger by the exercise of care in the
use of the product.
(6) The user’s anticipated awareness of the dangers inherent in the
product and their availability, because of general public knowledge of
the obvious condition of the product, or of the existence of suitable
warnings or instructions.
(7) The feasibility, on the part of the manufacturer, of spreading
the loss by setting the price of the product or carrying liability
insurance.
[In a prescription drug case, for some products there is not
alternative design.]
[It may be appropriate when proceeding upon a risk-utility theory
to shift the burden to the defendant the burden of production or
persuasion to demonstrate that an injury producing product is not
defective in design.]
58
Option 2
Plaintiff(s) have brought a strict liability cause of action.
Plaintiff(s) must prove that the product is in a defective
condition.
Plaintiff(s) may prove the defective condition by showing
either that: (1) the danger is unknowable and unacceptable to
the average or ordinary consumer, or that (2) a reasonable
person would conclude that the probability and seriousness of
harm caused by the product outweigh the burden or costs of
taking precautions.
A manufacturer may not preclude an injured plaintiff’s
recovery by forcing him to prove negligence in the
manufacturing process.
59
Option 2 cont’d.
Where the plaintiff is claiming a failure of
consumer expectations, you should consider the
following:
6. The nature of the product;
7. The identity of the user;
8. The product’s intended use;
9. The intended user of the product;
10. Any express or implied representations by a
manufacturer or other seller.
60
Option 2 cont’d.
Where a plaintiff pursues a risk-utility theory, the
following factors should be considered;
(8) The usefulness and desirability of the product-its
utility to the user and to the public as a whole.
(9) The safety aspect of the product-the likelihood
that it will cause injury, and the probable seriousness of
the injury.
(10) The availability of a substitute product which
would meet the same need and not be as unsafe.
(11) The manufacturer’s ability to eliminate the
unsafe character of the product without impairing its
usefulness or making it too expensive to maintain its
utility.
61
Option 2 cont’d.
(12) The user’s ability to avoid danger by the exercise of care in the
use of the product.
(13) The user’s anticipated awareness of the dangers inherent in
the product and their availability, because of general public knowledge
of the obvious condition of the product, or of the existence of suitable
warnings or instructions.
(14) The feasibility, on the part of the manufacturer, of spreading
the loss by setting the price of the product or carrying liability
insurance.
[In a prescription drug case, for some products there is no
alternative design.]
[It may be appropriate when proceeding upon a risk-utility theory
to shift the burden to the defendant the burden of production or
persuasion to demonstrate that an injury product is not defective in
design.]
62