UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 8, No. 3SPRING 1985
The Design Defect Test in Washington: The Requisite Balance
I. Introduction
The early notions of strict liability for injuries caused by defectively designed products examined the relative "safeness" of the product. The original analysis required the fact-finder to determine that the product was "unreasonably dangerous" before strict liability could be imposed.(fn1) The jury typically was instructed to make the determination of whether a product was unreasonably dangerous through the "consumer expectations" test.(fn2) If the jury concluded that a particular product was not as safe as would be reasonably expected by an ordinary consumer, then the product was unreasonably dangerous and strict liability was imposed.
When evaluating the broad concept of consumer expectations, the jury traditionally was asked to make an objective judgment after considering a variety of facts and circumstances. Considerable judicial and scholarly comment has questioned whether a jury is fundamentally competent to make the nebulous decision of what consumers generally expect in terms of a particular product's safety.(fn3) Some courts simply decided from the beginning that a risk-utility balancing test is a more efficient and accurate method of gauging product safety in design defect litigation than is the divination of consumer expectations.(fn4)
In recent years, courts have moved away from the traditional consumer expectations analysis. The modern view examines product safety through a risk-utility balancing process that inquires into the reasonableness of the product's design.(fn5) Washington courts have struggled with the transition from consumer expectations to risk-utility balancing. The courts in this state have never applied a pure consumer expectations test, but have in fact employed a combined consumer expectations/risk-utility examination.(fn6) That is, although juries in Washington have been instructed to determine whether a product has met the ordinary consumer's expectation of safety, they have been required to assess these expectations by weighing a number of risk-utility factors.(fn7)
A perplexing situation is presented when a judge or practitioner asks whether the plaintiff must present evidence regarding each of the factors in the risk-utility segment of Washington's design defect test. Washington courts have failed to articulate a standard by which a plaintiff can be certain that the burden of proof for the design defect test has been satisfied. The question becomes, in this trend towards risk-utility balancing, how much is enough? Can a jury adequately assess product safety if a design defect plaintiff offers evidence of only one or two of the factors in the risk-utility analysis?
This Comment examines Washington's application of the design defect consumer expectations test. Washington courts have been inconsistent during the recent transition in products liability law. A case in point is Conner v. Skagit Corp.,(fn8) in which the plaintiff was allowed to proceed with a design defect cause of action while offering proof of only one factor from the consumer expectations test. Accordingly, this Comment suggests that design defect plaintiffs must offer proof of multiple factors that relate to the issue of defectiveness and reasonableness. This proposal will be discussed in light of regional and national products liability theory and Washington's new statute, as well as the policies that justify strict liability in design defect litigation.
II. Design Defect Strict Liability in Washington
A. The Evolution of the Design Defect Test in Washington
In Ulmer v. Ford Motor Co.,(fn9) the Washington State Supreme Court adopted strict liability for a manufacturer who sells any product in a "defective condition unreasonably dangerous" that subsequently causes injury.(fn10) The Washington State Supreme Court reviewed prior cases in which the manufacturers of food products,(fn11) hair coloring,(fn12) and automobiles(fn13) were held liable without allegations and proof of negligence. In those cases, the court did not require the plaintiffs to show specific acts of negligence when proceeding on the theory of implied warranty.(fn14) The court then recited section 402A of the Restatement (Second) of Torts,(fn15) which imposes strict liability on the manufacturer or seller of a product that causes injury to a user or consumer if the product is in a "defective condition unreasonably dangerous."(fn16) This early test imposed strict liability upon the defendant without proof of negligence, as long as the jury determined that the product was unreasonably dangerous. The focus was on the entire product, rather than on the defendant's negligence. Finally, the court stated: Section 402A, insofar as it pertains to manufacturers (and we are concerned in this case with a manufacturer only), is in accord with the import of our cases which have been decided upon a theory of breach of implied warranty and we hereby adopt it as the law of this jurisdiction.(fn17)
It was not until 1975, in Seattle-First National Bank v. Tabert,(fn18) that Washington recognized strict liability for a design defect. In Tabert, Seattle-First National Bank brought a design defect products liability action against a Volkswagen distributor.(fn19) Seattle-First claimed that "the lack of structural strength in the front panel"(fn20) was the proximate cause of the deaths of two people who were killed when their Volkswagen bus crashed into the rear of a truck. In accepting the design defect cause of action, the Washington State Supreme Court explained that unsafe designs present a very real danger to consumers.(fn21) The court noted that design defect strict liability was a nationally accepted rationale for imposing liability and that Washington would be following the majority view(fn22) if the court adopted this theory in Tabert.
The court next confronted the task of formulating a test for determining the existence of a design defect. A formula was needed that would enable a jury to decide whether a particular product design was so unreasonably dangerous as to be defective. Only then would strict liability be imposed upon the manufacturer.(fn23)
Washington courts had generally followed section 402A of the Restatement (Second) of Torts for basic strict liability analysis.(fn24) The Tabert court recounted various judicial and academic interpretations of section 402A.(fn25) The court also evaluated competing design defect tests(fn26) and ultimately delineated a novel test for determining the existence of a design defect.(fn27) The court adopted "consumer expectations" as the test for a design defect,(fn28) holding that under the rubric of section 402A an unreasonably dangerous design is equivalent to a defect.(fn29) A design defect would exist by definition if a product was "not reasonably safe," and evaluation of safeness would depend on the reasonable expectations of the ordinary consumer.(fn30)
Under Tabert, if a jury decided, based upon a number of factors, that a product did not meet the ordinary consumer's expectations of safety, then the product would automatically be defective and strict liability would follow.(fn31) The court set out a list of factors to be used by juries in ascertaining consumer expectations:In determining the reasonable expectations of the ordinary consumer, a number of factors must be considered. The relative cost of the product, the gravity of the potential harm from the claimed defect and the cost and feasibility of eliminating or minimizing the risk may be relevant in a particular case. In other instances the nature of the product or the nature of the claimed defect may make other factors relevant to the issue.(fn32) The factors set out by the Tabert court constitute a combined consumer expectations/risk-utility test.(fn33) While the final goal of the inquiry is to assess consumer expectations, the jury is required to perform, en route, a risk-utility balancing test. The court directed that juries in design defect cases must consider the factors presented in Tabert.(fn34)
B. Conner v. Skagit Corp.: Departure from Balancing
In Conner v. Skagit Corp.,(fn35) decided in 1983, the Washington State Supreme Court held that when a plaintiff limits allegations of unreasonable dangerousness to only one of the factors listed in Tabert, "he must establish that single factor beyond the balance of probabilities."(fn36) The Conner court thus impliedly held that a plaintiff could maintain a design defect strict liability cause of action with proof of only one of the factors set forth in Tabert. While the posture of the case is helpful for understanding this outcome, it does not justify a holding that cripples the risk-utility balancing approach articulated in Tabert.
Barry Conner was a logger employed by the Hammer Logging Company. In the fall of 1974, a piece of logging machinery amputated Conner's left arm. Conner brought a design defect products liability action against the manufacturers of the machinery, Skagit Corporation and Bendix Corporation. The jury held for the defendant,(fn37) and Conner appealed, challenging the court's instruction on his burden of proof.(fn38)
The instruction required the jury to find that Conner had proved three propositions for liability: first, that the product was dangerous...
