Back to the future: renewing strict product liability in Florida.

• Author: Stewart, Larry S.

On October 29, 2015, the Florida Supreme Court decided the most important product liability case in Florida jurisprudence since the landmark decision in West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976). The much anticipated decision in Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015), settled almost 40 years of uncertainty and debate in Florida over the proper test for product design defects, i.e., whether it should be a strict liability consumer expectations test or a negligence-based risk/benefit test. The former originated in the 1964 historic Restatement (Second) Torts [section]402A; the latter grew out of spirited objection to that provision. In deciding that consumer expectations are "more closely aligned with the policy reasons behind Florida's adoption of strict liability in products design cases," (1) the court reestablished strict liability for product defect design cases in Florida.

Aubin came to the court from the Third District Court of Appeal, which had reversed a plaintiff verdict based in part on the failure of the trial court to apply the risk/ benefit test from the new Restatement (Third) Torts: Products Liability (Am. Law Inst. 1997). The case involved an asbestos product manufactured by Union Carbide that had been incorporated into various joint sealing compound and texture spray products. Specifically, the district court held that the new Restatement on Products Liability applied. (2) That restatement proposed the abolition of the consumer expectation test, replacing it with a risk/benefit test that required proof of an alternative reasonable design. (3) In reversing, the Supreme Court concluded that "the Third Restatement's new approach is inconsistent with the rationale behind the adoption of strict products liability." (4)

Aubin heralds a new day for product design defect cases in Florida, (5) but to understand the import of this decision and its implications for the future, it is necessary to review the conceptual underpinnings of the two tests and how Florida product liability jurisprudence developed to this point.

Strict Liability vs. Negligence

Strict liability for product defects grew out of dissatisfaction with warranty and negligence theories of recovery for product injuries. Because of privity requirements, contributory negligence, notice and disclaimer defenses, and difficulties of proof, many seemingly meritorious cases were going without redress. In 1964, the American Law Institute adopted Restatement (Second) of Torts [section]402A, which proposed that product sellers should be "strictly liable" for injuries from unreasonably dangerous products "even though the seller has exercised all possible care in the preparation and sale of the product."

Liability under [section]402A was straightforward. Product sellers were liable for harms caused by any product that is "in a defective condition unreasonably dangerous," meaning "dangerous to an extent beyond that which would be contemplated by the ordinary consumer...." (6) This was not, however, per se strict liability in the traditional sense of that term as in the case of harm resulting from the keeping of dangerous animals or other abnormally dangerous activities in which liability for the resulting harm is automatic. To hold a product seller strictly liable, the plaintiff had to prove both that the product was defective and that the defect caused the plaintiff's harm.

Section 402A also proposed an affirmative defense for products that were "unavoidably unsafe." Under comment k to [section]402A, Restatement Second recognizes that there are some products that science and art cannot make completely safe for ordinary use but that still have utility. For those "unavoidably unsafe" products (prescription drugs, for example), comment k provides a seller will not be liable for marketing "an apparently useful and desirable product, [even though it is] attended with a known but apparently reasonable risk" as long as the manufacturer provides "proper directions and warning." This was not, however, a free pass. Manufacturers have to test their products for residual risks, adopt safer designs when possible, provide adequate warnings and directions, and only market the potentially unsafe product when the benefits of the product outweighed its risks.

It wasn't long before strict liability for product defects came under attack by proposals to replace it with a risk/ benefit test. (7) Proponents advocated that product defects should be evaluated by a negligence-type analysis, balancing the risk of injury against the benefit of the product. In many respects, this stood products liability law on its head. The risk/benefit test took what was an affirmative defense under comment k to [section]402A for "unavoidably unsafe" products and made it the basis for a liability regime for all products in which products would be presumptively safe unless plaintiffs carried the burden of proving the risks inherent in the product outweighed its benefits. The ensuing debate over the proper test raged on for decades mostly on a case-by-case basis. In Florida, it lasted almost 40 years.

Pre-Aubin Product Liability in Florida

Florida first embraced products liability strict liability in 1976. Although earlier decisions had already...