Products Liability: Defectiveness - April 3

Question 1

What is the Consumer Expectation Test? (Feldman)

Answer 1

It looks at the design feature in dispute from the standpoint of a product user.

Question 2

What questions does the Consumer Expectation (CE) Test ask? (Feldman)

Answer 2

It asks: Do the risks of the design meet the expectations of a reasonable consumer? Or does the product’s performance disappoint those expectations?

Question 3

What components of the CE test are put forward in Green? (Feldman)

Answer 3

(1) “in a condition not contemplated by the ultimate
consumer,” and

(2) “dangerous to an extent beyond that which would be contemplated by the ordinary consumer.”

Question 4

May liability under the CE test be imposed in the absence of an alternative feasible design? (Feldman)

Answer 4

Yes. (Couch)

Question 5

Must consumer expectastions be reasonable in light of alternative products available on the market? (Feldman)

Answer 5

Yes. (Linegar)

Question 6

Does CE test have bite when a defect is “open and obvious?” (Feldman)

Answer 6

No. (Tabieros)

Question 7

What questions does the Risk Utility (RU) test ask?

Answer 7

It asks: Is the design of the product, on balance, reasonably safe? Or do the design’s risks outweigh its
benefits?

Question 8

What factors have courts used in applying the RU test? (Feldman)

Answer 8

Courts applying the R-U test have considered a variety of factors including:

(1) the usefulness and desirability of the product;

(2) the likelihood that it will cause injury and the probable seriousness of the injury;

(3) the availability of a substitute product that would meet the same need 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;

(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

(7) the feasibility of the manufacturer spreading loss by setting the price of the product or by carrying liability insurance.