Recent Developments in Connecticut Products Liability Law: Breaking New Ground in Design Defect Cases

Publication year2021
Connecticut Bar Journal
Volume 73.

73 CBJ 41. Recent Developments in Connecticut Products Liability Law: Breaking New Ground In Design Defect Cases

Recent Developments in Connecticut Products Liability Law Breaking New Ground In Design Defect Cases


In 1997, three notable events occurred, each of which will significantly impact the future of products liability law in Connecticut. First, on May 20, 1997, the American Law Institute ("ALI") unanimously adopted the Restatement (Third) of Torts: Products Liability ("Restatement (Third)"), a document sufficiently different from Section 402A (Products Liability) of the Restatement (Second) of Torts ("Restatement (Second)") so as to generate extensive commentary both before and after its approval. (fn1) A mere seven days later, the Connecticut Supreme Court released its decision in Potter v. Chicago Pneumatic Tool Co., (fn2) a case which must be considered required reading for anyone practicing products liability law in Connecticut.

Significantly, the Potter Court expressly rejected what is perhaps the most controversial provision of the Restatement (Third), Section 2(b), which in most cases would require a plaintiff to demonstrate the existence of a reasonable alternative design in order to prevail in a design defect case. In lieu of the Restatement approach, the Potter Court loosened its long-standing grip on the "consumer expectation" test as the sole measure of a product defect and introduced a "modified consumer expectation" test to be used in conjunction with the traditional test. Unfortunately, the Court provided only limited direction with regard to how and when the new test is to be used, leaving judges and litigants to grapple with those issues.

Additionally, the Court ratified the use of state-of-the-art evidence in design defect cases, a decision which will influence the future application of either the traditional consumer expectation test or the new modified consumer expectation test. The Court also delineated a burden-shifting analysis to be utilized when considering alterations or modifications made to a product. An examination of the interrelationship between the Court's rulings on these issues leads to the conclusion that, while expressly rejecting the Restatement (Third) standard, the Court's decision is substantially aligned with the Restatement (Third) approach. This issue is discussed in detail below and will surely provide fodder for future litigation.

Subsequent to the Potter decision, on September 2, 1997, the Court issued its decision in Wagner v. Clark Equipment Co., Inc., (fn3) in which it held for the first time in the products liability context that two or more independent intervening forces may combine to create a superseding cause of a plaintiffs injury, thereby relieving a defendant of liability. The Wagner Court also ruled that evidence of compliance with federal regulations is admissible to demonstrate the lack of a product defect and that evidence of postaccident modification may be used to demonstrate the existence of possible alternative designs (i.e., the presence of a product defect).

Independently, each of these events is significant. In combination, the three have dramatically altered the products liability landscape in Connecticut. Not only has the substantive law changed, so too has the manner in which product liability claims must be litigated. Specifically, the evidence now needed to prosecute or defend these claims is entirely different from that which was required before. Now more than ever, parties will be required to present evidence of "feasible alternative designs" and state-of-the-art designs, along with pre-accident and postaccident modifications. The parties who identify these issues will succeed. The parties who do not may never know why they failed.


The Potter case arose when hundreds of employees of General Dynamics' Electric Boat shipyard sued the Chicago Pneumatic Tool Company, Stanley Works, and Dresser Industries, claiming that various tools which they used during the course of their employment as "grinders" at Electric Boat were defectively designed. According to the plaintiffs, the defective design resulted in excessive vibration of the tools causing the plaintiffs to suffer "Hand Arm Vibration Syndrome," also known as "White Finger Disease." The plaintiffs further alleged that the defendants had failed to warn them regarding the potential danger of using the tools and that this failure also resulted in harm to the plaintiffs.

A small number of the cases were selected for a consolidated trial. Following the conclusion of a jury trial, the trial court entered judgment in favor of the plaintiffs. The defendants subsequently appealed from the judgment claiming, among other things, that: (1) the plaintiffs had failed to offer evidence sufficient to establish a defective design; (2) the trial court improperly instructed the jury regarding their consideration of any alteration or modification of the tools; and (3) the trial court improperly instructed the jury on the use of state-of-the-art evidence in design defect cases. The Connecticut Supreme Court agreed that the trial court had improperly shifted the burden of proof to the defendants with regard to the issue of alteration or modification and ordered a new trial on that ground. In reaching its conclusion, the Court made several rulings which have significantly altered the law of products liability in Connecticut.

A. Introduction of the "Modified Consumer Expectation" Test

Perhaps the most significant element of the Potter decision is the Court's introduction of the "modified consumer expectation" test as a measure of a product defect. Although the Court followed a precise and careful path in reaching the decision to introduce the modified test, the conclusions which the Court ultimately draws in this regard create more questions than answers.

1. Rejecting Section 2(b) of the Restatement (Third)

Undertaking a comprehensive review of the history of products liability law as a predicate to addressing the issues raised by the parties, the Court first summarized the evolution of products liability law generally, from the English common-law rule requiring privity between the claimant and the allegedly negligent manufacturer, to the modern rule as set forth in Section 402A of the Restatement (Second), under which manufacturers are "strictly liable for unreasonably dangerous products that cause injury to ultimate users." (fn4) In the Restatement (Second) formulation, an "unreasonably dangerous" (and therefore defective) product is defined as a product "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." (fn5) Discussing the development of products liability law in Connecticut, the Court noted that Connecticut was one of the first jurisdictions in the country to adopt the rule set forth in the Restatement (Second) for determining when a product is defective. That rule, commonly referred to as the "consumer expectation test," was, prior to Potter, well established as the only test to be employed in Connecticut products liability actions.

In spite of Connecticut's long history of adherence to the consumer expectation test as the measure of a product's allegedly defective nature, the defendants in Potter nonetheless urged the Court to adopt a different test. Specifically, they urged adoption of the test set forth in Section 2(b) of the draft Restatement (Third), which provides:

A product ... is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe. (fn6)

This test would require a plaintiff in a design defect case to prove that, at the time the defendants manufactured their products, a feasible alternative design existed that was safer than the defendants' design.

Addressing this issue, the Court noted that courts in other jurisdictions have considered the existence of a feasible alternative design when determining whether a product is defective. For example, in Barker v. Lull Engineering Co., (fn7) the California Supreme Court adopted two alternative tests to determine whether a product is defectively designed: (1) an ordinary consumer expectation test, similar but not identical to the test used in Connecticut; or (2) a balancing test that questions whether the benefits of a particular design outweigh the risks inherent in the design. (fn8) Other courts have adopted the reasoning in Barker or some variation thereof, while still others utilize a similar "risk-utility" analysis in design-defect cases only (as opposed to manufacturing defect or inadequate warnings cases). Those courts that utilize a riskutility analysis have generally explicated a nonexclusive list of factors for the jury to consider, such as "the gravity of the danger posed by the challenged design, the likelihood that such danger would occur the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design." (fn9)

The Potter Court explicitly took issue with the Restatement (Third) Reporters' Note to comment (c), (fn10) where the Reporters' Note indicates that a majority of jurisdictions considering the issue reached decisions generally in accord with the draft Restatement (Third) language. The Potter Court's independent research revealed...

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