Raymond Paul Johnson - Civil Litigators - Los Angeles, CA

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[Editor's Note: In the April 1999 issue, we were fortunate enough to have a lead article on the new Restatement authored by Justice William Rylaarsdam. We greatly appreciated his jurist view on the subject matter. In our continuing effort to present different slants on similar topics, however, this month we present the trial lawyer's perspective on the new Restatement by Raymond Paul Johnson. Ray was the 1995 National Chairman of the Products Liability Section of the Association of Trial Lawyers of America and is currently Vice Chair of ATLA's Aviation Section. Editor's Warning: If you sense any similarity of thought by the authors on this subject, attribute that to the fact that fifteen years ago Ray was an associate with the law firm of Breidenbach, Swainston, Crispo & Way where Justice Rylaarsdam was a lead partner. Ray never missed Justice Rylaarsdam's Firm Seminar sessions.]

New Changes in the Restatement of Torts1

On May 20, 1997, the American Law Institute (ALI) officially adopted a new Restatement on products liability which, if accepted wholeheartedly by courts as written, could reverse three decades of progressive law. The final draft contains twenty-one (21) sections of suggested black-letter law. There are five significant changes, however, regarding product liability; each is addressed separately below.

Essentially, the new Restatement abolishes Section 402(a) or strict liability for design defects. It requires proof of a reasonable alternative design in most cases. The Consumer Expectation Test is virtually abolished as a standard of defectiveness. In addition, under the Restatement (Third), there is only one form of products liability action; regardless of whether it is labeled strict liability, warranty or negligence, only one claim goes to the jury. Finally, for product warning cases, the Restatement creates a negligence test to hold the manufacturer or retailer responsible for a warning defect.

While these changes seem significant, it is important to remember that there is absolutely no requirement that any court adopt all or any part of the Restatement (Third) of Torts. The Restatement (Second) of Torts was evolutionary, and it changed product liability law to increase consumer protection. Some of the modifications listed above, along with some other aspects of the Restatement (Third), are changes that courts should be reluctant to adopt. There is no precedent, and the Restatement (Third) alone is not binding. One should remember that the Restatement (Second) took many years to be accepted by the courts, and it stands alone among the Restatements in its acceptance as black-letter law in many jurisdictions across the country. The following sections address the most significant changes created by the Restatement (Third), and propose some ways to work with those changes if necessary in your own cases.

Product Defect Cases-The Requirement for a Reasonable Alternative Design and Abolition of 402(a)

Section 2(a) of the Restatement (Third), manufacturing defects, leaves 402(a) in effect for manufacturing defects. Essentially, if a product departs from its intended design and causes harm, the manufacturer is liable even though all possible care was exercised in the preparation and marketing of the product. While this is true for manufacturing defects, drastic changes to the law regarding design defects are laid out in Section 2(b).

Essentially, strict liability would be abolished under the new Restatement for design defect cases. Under the Restatement (Third), a product is not defective in design unless the foreseeable risk of harm could have been reduced or avoided by adoption of a reasonable alternative design. With only a few exceptions, to recover plaintiffs would have to prove the existence of a technologically feasible and reasonable alternative design at the time of the manufacture of the product, which in most cases, if not all, would require extensive expert proof.2 Hence, the concept of "negligent design" would not provide a basis for liability absent proof of a reasonable alternative design.

The Restatement (Third) adopts the Risk-Utility Test, and departs from any use of the "Consumer Expectations Test." It clearly states that a plaintiff can never prevail without proof of a reasonable alternative design, even if plaintiff proves that "the product sold by the defendant is so dangerous that it should not have been marketed at all." A reading of the Comments associated with Section 2(b) indicates that, without a complete "redesign" of the product through expert testimony, a case based on faulty design may never reach the jury.

While the Restatement (Third) points out that plaintiff need not produce a prototype to make a prima facie case, to prevail at trial plaintiffs would have to convince a jury that the alternative design they propose is a better design. This may involve considering a number of factors, including the effects of the alternate design on production costs, product longevity, maintenance and repair, and even aesthetics and marketability. In addition, the redesign must be technologically feasible and practical. In essence, plaintiff's experts under the Restatement (Third) must consider all of these factors or face attempted disqualification by the defense.

The practical effect of these changes on litigating a product liability lawsuit could be far-reaching. The cost of litigation could sky-rocket as expert testimony becomes increasingly necessary for more and more facets of the case, facets previously not required. Even in cases involving the simplest product, regardless of the obviousness of the danger or defect, the plaintiff may have to retain experts to redesign the product. When your case involves damages associated with brain injury, paralysis or death, such costs may be merited. However, with lesser yet severe injury, the road to recovery could be financially blocked with the new provisions of the Restatement (Third) of Torts.

Furthermore, if the product is a very complex product, like an airplane or an electronically controlled machine, the expense of determining the factors involved in the redesign may be prohibitive. Therefore, people injured by a defective or unreasonably dangerous airplane or computer-controlled device could be left without practical roads to recovery under the Restatement (Third)'s provisions for products liability.

Note, however, that there is an exception to Section 2(b) and Comment C for manifestly unreasonable designs. Essentially, the exception provides that if products have a low social utility and a high degree of danger, liability should attach without proof of reasonable alternative design. However, Comment D quickly states that there can be no categorical liability for defective products. While few cases have adopted categorical liability, this is an obvious effort to prevent it in the future.

Under Section 3, the drafters offer a response to complaints about the expense and burden on plaintiffs of the "reasonable alternative design" requirement. Essentially, the Restatement (Third) permits use of res ipsa loquitur, allowing circumstantial evidence to be used to prove a specific defect or reasonable alternative design only in cases when the product fails to perform its manifestly intended function, and injury was not solely a result of causes other than a product defect. Using the Section 2(b) exception described above and res ipsa loquitur, perhaps courts will liberalize any requirements for plaintiffs to generate reasonable alternative designs.

You must remember when dealing with design defect cases that the Restatement (Third) has only been fully accepted by the American Law Institute. It has certainly not been widely adopted by courts, and it is in strong opposition to the weight of precedential law in most jurisdictions including California. Courts have no obligation to adopt all of the provisions of the Restatement (Third) and rejection of many would be in the best interests of consumer protection.

Suggested Abolition of the Consumer Expectation Test as a Standard of Defectiveness

Under Section 2(b), Comment G, the Consumer Expectation Test would no longer constitute an independent basis for establishing the defectiveness of a product. However, consumer expectations created by product advertising, marketing or other manufacturer or retail-driven entities would come into play and could be determinative of whether the failure to adopt the proposed reasonable alternative design renders the product defective. Please note that even in the Restatement (Third) the Consumer Expectation Test would continue to be the standard for food products (Comment H in Section 7) and used products in some circumstances (Section 8).

The Consumer Expectation Test, However, Is Alive and Well in California

As we in California know, the Consumer Expectation Test was established by Barker v. Lull Engineering (1978) 12 Cal.3d 413. However, with suggestions made in the Restatement (Third) we must take care in interpreting Barker's progeny. For example, many defendant manufacturers have made recent efforts to exclude the Consumer Expectation Test in California courtrooms by misconstruing the holding in Soule v. General Motors (1994) 8 Cal.4th 548, and ignoring the subsequent interpretation given Soule by Bresnahan v. Chrysler Corporation (1995) 32 Cal.App.4th 246.

The Bresnahan decision involved Mary Bresnahan, who brought a products liability action against the manufacturer asserting that a design defect in her car caused the injury she suffered in a collision with another vehicle. Mary contended that the operation of the airbag in her 1988 Chrysler LeBaron, in conjunction with placement of the car's windshield, was a design defect. She sought to proceed against defendant Chrysler under the Consumer Expectations test originally outlined in Barker v. Lull.

Defendant Chrysler argued in opposition that the Consumer Expectations Test should be excluded because (1) the passive-restraint airbag system was a new product and technology with which ordinary consumers were not familiar, and (2) consumers could not make an informed decision on such new technology without understanding the airbag's relative risks and benefits, and as such the technology fell outside their ordinary experience and understanding. The trial court granted Chrysler's motion and excluded the Consumer Expectations Test from the jury's consideration on the grounds that "ordinary experience and understanding [would not] inform such [an ordinary] consumer how safely an automobile's design should perform under the esoteric circumstances of the collision at issue here." Bresnahan, supra, 32 Cal.App.4th at 1567-68.

After plaintiff's opening statement, where plaintiff's counsel argued that he would establish "that the ordinary consumer would not expect this touted safety device to cause this type of injury," the trial court granted Chrysler's motion for non-suit. Id. at 1564. On appeal, the appellate court considered whether the lower court's decision to exclude the Consumer Expectation Test was proper.

In determining whether the trial court's decision was correct, the Bresnahan court relied on Soule v. General Motors, supra, for guidance. Id. at 1566-67. The court in Bresnahan specifically noted that the Soule Court completely "rejected the manufacturer's contention 'that the Consumer Expectation Test is improper whenever crashworthiness, a complex product, or technical questions of causation are at issue.'" Id. at 1567, citing Soule, 8 Cal.4th at 568. Instead, as noted in both Soule and Bresnahan:

The crucial question in each individual case is whether the circumstances of the product's failure permitted an inference that the product's design performed below legitimate, commonly accepted minimum safety assumptions of its ordinary consumers. Bresnahan, supra, at 1567, quoting Soule, 8 Cal.4th at 568-69.

In reviewing the trial court's decision to exclude the Consumer Expectations Test, the Bresnahan court ruled that the argument presented by Chrysler was insufficient to justify exclusion of the Consumer Expectations Test. Where plaintiff proposes to prove:

"that under the foreseeable circumstance of the accident, her vehicle's design . . . performed in a manner below the safety expectations of the ordinary consumer, when it forced plaintiff's arm into a series of injurious 'internal' collisions with the interior of the car . . . [w]e believe that, on the showing before us, an ordinary consumer would be capable of forming an expectation, one way or the other, about whether the design of the highly-publicized and by now commonplace product of an air-bag equipped automobile satisfied minimal safety expectations in causing that result." Id. at 1568 (emphasis added).

Please note that if ordinary consumers are capable of forming an expectation regarding a car's windshield assembly and airbag system, they are certainly capable of reaching such expectations regarding the performance of any other commonplace component of a car, airplane, or other consumer product. See id. As a result, in California, the jury should be allowed to hear testimony on that product's failure to meet the minimum safety expectations of the ordinary consumer. Id.

Note also that the Bresnahan court also rejected Chrysler's arguments regarding "the fact that relatively few consumers may have experienced the deployment of an airbag" noting that the "same point could be made in any case where a product performed in an unusual manner, or where safety equipment was triggered." Id. at 1568. The critical point is whether the everyday experience of the consumer permits her "to entertain minimum safety expectations of the safety of a car with an airbag" in such collision. Id., citing Soule, 8 Cal.4th at 567. The court in Bresnahan decided "that an ordinary consumer is so equipped to form [such] expectations." Id. The logical conclusion is that if the ordinary consumer can form expectations regarding technology as intricate and relatively new as an airbag, certainly the ordinary consumer can form an expectation of safety in any California products liability case involving a more technologically-mundane product or component, such as car seats, a vehicle's roof, seat belts, tires, car doors, lawn mowers, and bicycles. See Id.

The Bresnahan court also rejected Chrysler's argument regarding the alleged technical novelty of the airbag and the need for expert testimony as a grounds to exclude the Consumer Expectations Test. The court plainly held:

The Consumer Expectations Test is not foreclosed simply because expert testimony may be necessary to explain the nature of the alleged defect or the mechanism of the product's failure. As observed in West v. Johnson & Johnson Products, Inc. (1985) 174 Cal.App.3d 831, 866-67, whether a product's design and performance met the informed expectations of the ordinary consumer is a question distinct from, even if derivative of, the factual issues of what that design was and how it functioned. Id. at 1568.

The court ruled that, on the evidence and arguments presented, "the trial court erred in precluding plaintiff from proceeding under the Consumer Expectations Test." Id. Therefore, in your case, even if expert testimony is needed (such as in every crashworthiness case) and the subject matter is complex or technically detailed, the Consumer Expectations Test is appropriate under California law. The acid test is whether the everyday experience of the consumer permits her to entertain minimum safety expectations about the product or product component. See Soule, 8 Cal.4th at 567.3

Restatement (Third) Section C-Abolition of Negligence and Implied Warranty as a Separate Basis for Recovery

Under the Restatement (Third), there would only be one form of products liability action, regardless of its name. Strict liability, warranty and negligence claims arising out of the defective manufacture, design or warning of a product would be melded into one claim; the only claim that would go to the jury.

This proposed abolition of alternative pleading is also dangerous. Jurors of course can usually understand when a product causes injury where it should not. A jury can further understand that liability should be assessed against a manufacturer or a retailer for that harm. However, for whatever reasons, some juries simply do not accept certain methods of recovery. Alternative pleading historically allowed juries several different areas of law within which to either assess liability or decline to do so. This melding of all potential product liability claims into one eliminates the jury's ability to compromise. Instead, under Restatement (Third), whichever claim is allowed to go to the jury would be their only method of measuring and evaluating the concepts of products liability. Should this principle of the Restatement (Third) be accepted in California, we would all have to use jury selection very broadly to educate our jurors about the underlying concepts of product liability law.

The Negligence Test for Product Warning Cases

Under the Restatement (Third), Section 2(c), the law regarding warning defects faces significant change. The Restatement makes clear that the manufacturer's first obligation is to design a safe product, and that warnings cannot substitute for safe design. However, where dangers cannot be designed out of a product, reasonable warnings are required.

The Restatement (Third) adopts a negligence test for defective warning cases. A product is considered defective if reasonable instructions or warnings could have reduced the risk of harm. The Restatement (Third) sets forth the following factors for determining the reasonableness of warnings or instructions: content and comprehensibility, intensity of expression, and the characteristics of the expected user group. This simple negligence test for warning defects is a deviation from the existing strict liability test in California, but in practice may not present significant obstacles in most cases. Essentially, for a non-obvious risk, warnings must be reasonable and they are required under Restatement (Third).

Other Provisions of the Restatement (Third)

Restatement (Third) Section 10-Post-Sale Failure to Warn, and Restatement (Third) Section 11-Post-Sale Failure to Recall: These sections impose liability on the manufacturer's and retailer's post-sale activities. A negligence standard is levied on the liability for post-sale warning. When a seller learns or should know that a product poses a potential risk of harm, there is a duty to warn users of the danger. This duty can apply either to manufacturers or retailers.

Further, under the Post-Sale Failure to Recall, when retailers or manufacturers are required to recall a product by statute or government directive, or if they undertake a voluntary recal and do so in a negligent manner, liability attaches. In this area, there is no requirement for reasonable alternative design. Instead, the obligation is on the manufacturer to undertake a consumer safety activity, such as a warning or a recall, in a manner in which actually protects the consumer.

Essentially, these two sections offer common sense requirements. Although neither have been previously adopted in California or commonly throughout the United States, the establishment of this duty through the Restatement (Third) may prove significant, particularly in cases of recalls of automobiles and child safety restraints, and the failure to provide adequate warnings.


As emphasized in Justice Rylaarsdam's companion article4 in the April 1999 edition of ADVOCATE, none of us should necessarily throw out the proverbial baby with the bath water. As discussed in the last section of this article, there is certainly merit, from a consumer protection point-of-view, to the Restatement (Third)'s description of the Post-Sale Failure to Warn and Post-Sale Failure to Recall liability. We must also remember, however, that historically the Restatement has not necessarily reflected the weight of authority, and as described above, the Restatement (Third) in the area of "design defect" actually recommends law that is contrary to the weight of precedent, especially in California. Therefore, if you are faced with a pronouncement of the Restatement (Third) regarding design defect, be sure to emphasize that such material is merely persuasive (at most) and not in any way a statement of the weight of authority or even a reflection of substantial authority in California or across the nation.

Please remember that especially in the area of "design defect" the Restatement (Third) does not mandate any particular result, but instead merely makes recommendations. It may ultimately prove strong authority for a particular proposition, or no authority at all depending on the jurisdiction. In prosecuting your design defect cases, please remind the courts that it is and always has been the courts that decide the law, not the American Law Institute.

1 Some of the material in this article was adapted from the author's national trial-practice volume, Johnson and Eidson, Defective Product: Evidence to Verdict (1995, 1997 Supplement, Lexis Law Publishing). For a more detailed analysis, see Section 1-6 of that volume.

2 Needless to say, such a requirement puts the injured plaintiffs in the unenviable position of having to essentially re-manufacture a product without the extensive resources and background of the defendant manufacturer. Then, this re-manufactured product would be subjected to criticism by the manufacturer's many in-house experts in a multitude of disciplines including Quality, Reliability, Maintainability, Produceability, and a myriad of even more esoteric concepts. The unfairness of forcing an injured plaintiff to essentially compete with the corporate knowledge and resources of a product manufacturer should be self-evident.

3 Note that other courts and other jurisdictions have also interpreted the Soule decision to allow the Consumer Expectation Test. For example, the Supreme Court of Alaska recently held in General Motors v. Farnsworth, 965 P.2d 1209 (October 16, 1998) that a plaintiff could rely on the Consumer Expectations Test to prove a seat restraint system defective. The Court in Farnsworth "agree[d] with the California Supreme Court that consumers can form reasonable and educated expectations about how certain products should perform." Farnsworth at 1221, citing Soule. According to the Alaska Supreme Court, the Court in Soule rejected "GM's insinuation that ordinary consumers lack any legitimate expectations about the minimum safety of the products they use." Farnsworth, supra, at 550 (citing Soule). According to the Alaska Supreme Court in Farnsworth:
When a seat belt, designed to be an instrument of protection, becomes an instrument of life-threatening injury, a consumer is justified in concluding that it did not perform as safely as promised. A seatbelt is a familiar product whose basic function is well-understood by the general population. Id.

Justice Rylaarsdam points out that "there is a danger that the entire new Restatement . . . will be judged, and by many found to be wanting, by a single provision (section 2(b)) defining the standard for liability for design defect." W. F. Rylaarsdam, The New Restatement on Products Liability (ADVOCATE, April 1999) at 18.

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