The uncertainty surrounding "design" in design defect cases.

• Author: Meyer, Kenneth R.

ALL PRODUCT LIABILITY attorneys know that in order to establish a prima facie design defect claim, the plaintiff must present an alternative design that is practical, feasible, and safer than the defendant's design. There is a large body of law that defines "practical," "feasible," and "safer" and explains the meaning of those terms. One word that is largely ignored, however, is arguably the most important: "design."

Statutes do not define "design," and there is a dearth of case law on what a "design" is in this context. Although the RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY ("Restatement") explains what a defective design is, (1) and its comments refer to various factors that are important in determining whether the omission of a reasonable alternative design renders a product unsafe, (2) the Restatement does not define "design." The absence of a definition of "design" leads to many unanswered questions: Must a plaintiff offer blueprints of his proposal in order for it to be a "design"? Must the proposal be capable of being built and tested? Must the proposal meet certain engineering requirements? Must a plaintiff offer design specifications?

Many of these questions do not have clear answers at the state level, despite the critical importance of this issue to product liability litigation. As a result, some courts have adopted a "we know a design when we see it" approach. Because the issue of how to define "design" often arises in the context of a challenge to the admissibility of an expert's opinion, federal courts employing a rigorous Daubert analysis have effectively provided some meaning to "design" and have provided litigants with some guidance as to the nature and quantum of evidence needed to prove a "design." This article reviews the approach state courts take in considering what constitutes a "design," using New Jersey product liability law as a representative example, contrasts the state law approach with the guidance developed in the federal courts, and provides for consideration an alternative standard for "design."

1. New Jersey Law

   New Jersey's product liability law is but one example of a state in which issues surrounding the definition of "design" remain unresolved. (3) New Jersey's Product Liability Act, (4) defines many terms but it does not define "design," (5) mandating only that defendants or sellers of a product are liable if the plaintiff proves that a product "was designed in a defective manner." (6) The New Jersey Supreme Court and lower courts have developed a large body of case law regarding nearly all aspects of product liability law, but they have not adopted a concrete definition of "design." Instead, New Jersey courts have taken an ad hoc approach to the issue.

   For example, in Lopez v. Borough of Sayreville, (7) a product liability action heard by the New Jersey Appellate Division, the plaintiff suffered injuries after an all-terrain vehicle that he was riding up a hill overturned backwards and landed on him. (8) The plaintiff asserted design defect and warning defect claims against the manufacturer of the vehicle. (9) The jury returned a no-cause verdict, and the trial court denied the plaintiff's motion for a new trial. (10) The Appellate Division affirmed, rejecting the numerous arguments that the plaintiff presented on appeal. (11)

   On appeal, the Lopez court considered the plaintiff's challenge to a supplementary charge that the trial judge provided to the jury regarding the design defect claim. The trial court's initial jury charge was "substantially in accordance" with the Standard Civil Jury Instructions (12) and outlined the four alternative designs that the plaintiff had identified during the course of the trial. (13) During its deliberations, the jury requested a recharge on the design defect claim. (14) Because the trial court concluded that its original charge was not sufficiently tailored to the facts of the case, the trial court, after identifying the plaintiff's proposed alternatives, provided the following supplemental instruction:

   [T]he designs proposed by the plaintiff's expert, Mr. Bartlett, must be practical, feasible and safer. It cannot be an idea that will ultimately create more risk. Kawasaki says the design is not practical, safer and feasible. You must be convinced by the preponderance of the credible evidence that this device as submitted by Mr. Bartlett will meet those requirements, not that it is a start to a good idea, which with some improvements might do that in the future. The technology must exist and not be just some hypothetical ideas which may work in just one type of situation. (15) After noting that the italicized language is not part of the standard jury charge, the appellate court rejected the plaintiff's argument that the language used by the trial court was a misstatement of the law.16 The appellate court reasoned that to establish an alternative design, "a plaintiff must prove 'the existence of an alternative design that is both practical and feasible' and 'safer' than that used by the manufacturer." (17)

   The Lopez Court also rejected the plaintiff's argument that the supplemental charge "'improperly labeled the plaintiff's proposed alternative design as merely just a good idea."' (18) In so doing, the appellate court stated that the trial judge:

   charged the jury that plaintiff must prove their device was "practical, feasible and safer," and that plaintiff could not simply show "that it is a start to a good idea, which with some improvements might do that in the future." Thus, the court did not "label" the proposed devices as merely a "good idea," but rather properly instructed the jury that they must find the alternate design was in fact more than simply a "good idea," and was in fact practical, feasible, and safer. It logically follows that an alternative design cannot be a mere hypothetical that a manufacturer could consider, develop, and refine over time. Thus, the supplemental charge properly focused the jury's attention on the question whether the prototype device was practical, feasible, and safer, and not just a good idea that might work effectively at some point in the future. (19) As Lopez makes clear, hypotheticals and theories are simply not enough to establish a safer, alternative design; plaintiffs must instead propose an actual alternative design based on existing technology. In fact, Lopez even stresses that a "good idea that might work effectively at some point in the future" is insufficient to prove a safer, alternative design. (20) The plaintiff's experts advanced, at best, ideas about what theoretically might work, but Lopez holds that such ideas do not constitute safer, alternative designs. More is required--although the court did not precisely define what is required to prove a safer, alternative design.

   In Jackson v. Target Stores, (21) the New Jersey Appellate Division again considered the question of what constitutes a "design." In Jackson, the plaintiff slipped and fell on a welcome mat that was located outside her front door on a recently painted deck. (22) The plaintiff alleged design defect and warning defect claims against the manufacturer and...