In legal disputes regarding product liability, a consumer expectations test is used to determine whether the product is negligently manufactured or whether a warning on the product is defective. Under this test, the product is considered defective if a reasonable consumer would find it defective. As an example, a reasonable consumer might find exposed blades on a lawnmower, without plastic guards that could be installed for pennies, to be defective because the risk of not having the plastic guards is higher than the costs of installing those guards.
The test is mostly applied to non-complex products about which consumers might have expectations. For example, the consumer might not have specific safety expectations about the design of landing gear on an airplane except for the fact that they do not expect to crash while taking the plane.
The official definition of consumer expectation test is: An unreasonably dangerous product is one that is 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 of its characteristics.
This test is commonly applied in product liability cases in the United States.
A closely related test is risk-utility test. Traditionally, the risk-utility test was used for design defects, while the consumer expectation test was applied to manufacturing defects. However, some jurisdictions apply the consumer expectation test to design defects as well. See Calles v. Scripto-Tokai Corp., 2007 WL 495315 (Ill. Feb. 16, 2007).
In the European Union, the European Council Directive on General Product Safety 2001/95/EC states (at Article 3(f)) that the conformance of a product to a general safety requirement shall be assessed taking in to account "reasonable customer expectations regarding safety" (amongst other considerations).
In the past decade manufacturers have made an all out effort to eliminate the consumer expectations test as a standard for product defects. Both in litigation, and through political efforts, manufacturers have attempted to create law that would permit juries to be instructed only on the risk- benefit test in design defect cases. Loss of the consumer expectations test in design defect cases would be very detrimental to Plaintiffs and the Plaintiffs bar should work just as diligently as the manufacturers are working to preserve consumer expectations as a test for design defects.
The Two Tests for Product Defects
The “consumer expectations” test became the measure for product defects very early in the development of products liability law. The test originated in consumer warranty cases based on the UCC warranty of merchantability that requires a product to be “fit for its ordinary purpose”. This test was adapted to strict liability cases and was so widely accepted that it was incorporated in the Restatement (Second) Torts §402A when that Restatement was published in 1965. The risk-benefit test was first articulated in a 1973 law review article and has slowly gained some acceptance throughout the country. John W. Wade, On the Nature of Strict Liability for Products, 44 MISS. L.J. 825 (1973). Despite manufacturer’s contentions, courts who have accepted the risk-benefit test have not done so to the exclusion of the consumer expectations test.
One common claim of manufacturers is that design defects are too complex for juries to understand, and that ordinary consumers don’t know how most products are designed and, therefore, don’t have expectations about their designs. While we find no significant authority to counter this argument in Florida, the case of Hisrich v. Volvo, 226 F.3d 445 (6th Cir. 2000)(applying Ohio law) is very instructive and should be used in response to this argument.
In Hisrich, a child was killed after being struck by an allegedly defective airbag. The defendant in that case, Volvo, claimed that an ordinary consumer would not have any expectations about the workings of an air bag. The court in Hisrich wrote a very through analysis of this issue and held that “The consumer-expectation test focuses on the expectation of performance, not the technical considerations of the product. The court, following Ohio law, has found that the consumer need not be able to contemplate the technical consideration of the product’s design to find the product defective under the consumer-expectation test.” Hisrich at 455.
An additional argument that manufacturers make time and again is that the consumer expectation test is subjective. As the argument goes, no consumer expects to be injured by a product and therefore, every time an injury occurs, the consumer expectations test is met and, therefore, the test makes the manufacturer an insurer of the product. The claim that the consumer expectation test is a subject test of an actual consumer is incorrect. The consumer expectation test is an objective test of "ordinary" consumers, not a subjective test of "actual" consumers. Hobart Corporation v. Seigle, 600 So.2d 503 FN 3(Fla. 3rd DCA 1992). Commenting on the alternative tests given by PL 5, the Court in Hobart, stated: “Both tests require application of the objective standard to determine the defective nature of the product”. Hobart at 505. See also, Sumnicht v. Toyota Motor Sales, 360 N.W.2d 2, 16-17 (Wisc. 1984). at 370 (the consumer expectation test “is an objective test and is not dependent upon the knowledge of the particular injured consumer”).
Conclusion
Judges should continue to have available to them the option of a standard jury instruction that includes the consumer expectation test. The consumer expectation test is well established as the law in a great number of states. 1 It is incumbent on Plaintiffs to fight as hard to preserve this law as manufacturers are fighting to change it.