Connecticut's Jury Instruction on Design Defect Is Defective: a Second Look at Potter v. Chicago Pneumatic Tool

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 84 Pg. 325
Connecticut Bar Journal
Volume 84.

84 CBJ 325. Connecticut's jury instruction on design defect is defective: a second look at POTTER v. CHICAGO PNEUMATIC TOOL

Connecticut Bar Journal
Volume 84, No. 4, Pg. 325
December 2010

Connecticut's jury instruction on design defect is defective: a second look at POTTER v. CHICAGO PNEUMATIC TOOL

By Dina S. Fisher(fn*)

In Potter v. Chicago Pneumatic Tool,(fn1) the Connecticut Supreme Court changed how claims of defective products are litigated in this state, and in the process created some confusion that not only persists, but is getting worse. Supposedly holding firm to Connecticut's traditional definition of a defective product as one that is "unreasonably dangerous beyond the expectations of the ordinary consumer,"(fn2) the Potter court incorporated a new test for determining whether a product meets consumer expectations regarding its safety - the "modified consumer expectation test." Borrowing heavily from California, Potter broke ground in Connecticut by suggesting that some juries may decide whether a product is defective by considering such things as the usefulness of the product, the financial cost of an improved design, the feasibility of an alternative design, the feasibility of spreading the loss by increasing the product's costs, etc.(fn3) One question-which must be left for another day-is whether these are actually relevant indicators of product "defect." A more pressing problem is that the Court did not adequately explain when these factors are to be considered.

Not only did the Court not define with usable clarity when courts were to instruct on the "simple" consumer expectation test, and when they were to charge on the "modified" test, but it also employed language that has confused the issue ever since. The result is a significant error in the form jury instructions published on the judicial website, and a persistent misapplication of the core principles of Potter.

The error is in the form jury charge on design defect.(fn4) Incorrectly, it includes a risk/utility instruction for all product liability cases, with Potter cited as authority. Compounding the error, the form instruction begins with a caveat that the ensuing instruction is not appropriate for use in complex cases. This is a problem because: (1) the charge that is provided is precisely the one that Potter says should be given in only complex cases, and (2) no alternative charge is provided. This is troubling.

It is worthwhile to take a second look at Potter to find where the seeds of today's confusion were sown, and where the error in the courts' present instruction may have originated. A set of alternative instructions should be provided that more faithfully apply the Potter principles.

I. Potter v. Chicago Pneumatic Tool

Potter is widely considered the case that changed Connecticut's product liability law from a simple "consumer expectation test" to a "modified consumer expectation test." The change took place in a somewhat disorderly fashion, which may explain the current confusion in our jury instructions.

A. The Law Before Potter

Before Potter arrived at the Court in 1997, design defects were defined in Connecticut in accordance with the standard set out in § 402A of the Restatement (Second) of Torts.

Beginning with Garthwait v. Burgio,(fn5) the settled rule in Connecticut was that plaintiffs could recover for a product design defect only if they could prove that the product at issue as "in a defective condition unreasonably dangerous to the consumer or user."(fn6) The Court took the definition of "unreasonably dangerous" from § 402A, which provided that the "article sold must be 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."(fn7) This "consumer expectation" standard has been in place ever since.(fn8) The standard form jury instruction for design defects in products cases centered on this definition for close to twenty years(fn9)-until Potterwas decided, and then began to be misinterpreted.

B. Potter Affirms The Consumer Expectation Test

Contrary to popular belief, Potter's holding simply affirmed the consumer expectation test. In Potter, the defendant manufacturers of pneumatic hand tools sought to change Connecticut's product liability law. They did so, but not in the way they intended. The appeal was of a plaintiff's verdict in a relatively simple case involving workers' hand injuries found to have been caused by defectively designed pneumatic tools.(fn10) In arguing that the trial could should have entered judgment notwithstanding the verdict, the defendant manufacturers argued inter alia, that the plaintiffs had failed to prove a product defect.(fn11) Specifically, they asked the Court to adopt the position of the current (second tentative) Draft of the Restatement (Third) of Torts: Product Liability (1995) ("Third Draft Restatement") and require plaintiffs to establish the existence of a feasible alternative design in proving product defect.(fn12) The Court rejected this approach and approved the trial court's instructions on the design defect issue.(fn13)

However, in spite of its agreement on this issue with the trial court, the Court took the occasion to launch sua sponte into a wide-ranging set of pronouncements about product liability law in general, proposing modifications heavily influenced by California law (which, paradoxically, had long ago rejected § 402A of the Second Restatement which is so central to Connecticut's product liability standards).(fn14) As Justice Berdon points out in his concurrence,(fn15) this entire portion of the Potter decision, including the articulation of the so-called "modified consumer expectation test," is dictum. Nonetheless, while the bulk of the decision addresses other issues such as burden of proof and subsequent remedial measures (and ultimately reverses the trial court's judgment and orders a new trial because of an erroneous charge on the burden of proof relating to the alteration/modification defense(fn16)) it is the earlier dicta that contains the principles for which Potter is most widely cited, and which- I submit-spawned the current problem in our jury instructions on design defect.

The Court reached the consumer expectation standard in the course of rejecting the need for a plaintiff to prove existence of a feasible alternative design.(fn17) Summarizing the current state of the law, the Court observed that the rule in Connecticut has long been and will continue to be that a product is deemed defective if it is determined to be unreasonably dangerous, beyond the expectations of the ordinary user of such products.(fn18) It approved the trial court's instructions that the jury should consider this standard in deciding whether the pneumatic hand tools at issue were defectively designed.(fn19) It...

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