Within the last year, manufacturers, have been made an all out effort to eliminate the consumer expectations test as a standard for product defects in Florida. Both in litigation, and through political efforts, manufacturers have attempted to create law in Florida the 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.

Florida Has Adopted the Consumer Expectation Test

Restatement (Second)§402A Comment (i) states that the standard for the fact finder in a product liability case is whether the product is “dangerous to an extend 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”. In the seminal case of West v. Caterpillar, 336 So.2d 80 (Fla. 1976), the Florida Supreme Court adopted the Restatement (Second) Torts §402A as the standard for product liability cases. See also, Cassisi v. Maytag, 396 So.2d 1140 (Fla. 1st DCA 1981) which adopted the consumer expectation test in a manufacturing defect case.

The consumer expectations test was further recognized as being the law in Florida by the Florida Supreme Court when it approved the Florida Standard Jury Instructions, which include the “consumer expectations test” as part of the standard instructions in a product liability case. Standard Jury Instructions-Civil Cases, 778 So.2d 264 (Fla. 2000)(PL5). Standard Instruction PL 5 states: “A product is unreasonably dangerous because of its design if [the product fails to perform as safely as an ordinary consumer would expect when used as intended or in a manner reasonably foreseeable by the manufacturer] or [the risk of danger in the design outweighs the benefits].” Comment 3 to PL 5 states:

PL 5 defines “unreasonably dangerous” both in terms of consumer expectations, see comment i to §402A of the Restatement, and in terms weighing the design risk against its utility, as expressed in decision from other jurisdictions. See, e.g., Cassisi v. Maytag Co., 396 So.2d 1140, 1145 (Fla. 1st DCA 1981 (dicta), quoting Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal. Rptr. 225, 573 P.2d 443 (1978). Absent more definitive authority in Florida, the committee recommends neither test to the exclusion of the other and expresses no opinion about whether the two charges should be given alternatively or together. PL 5 provides language suitable for either standard, or both, determined by the trial court to be appropriate.

This instruction, itself, is evidence of the work of the defense bar. As comment 3 states, “weighing the design risk against its utility” was a concept used “in other jurisdictions”, not Florida. In spite of the fact that the risk-benefit test was not a reflection of Florida law at the time PL 5 was written, the test is offered to trial judges as an alternative, on equal footing with the consumer expectations test, which became the established law of Florida when §402A was adopted by the Florida Supreme Court in West v. Caterpillar.

Trial Court Decisions

In a personal injury resulting from injuries sustained as the result of an allegedly defective airbag, that went to verdict in January, 2003 in the Fourth Judicial Circuit in Jacksonville, Ford argued that the consumer expectation test should not be applied in an air bag case because an ordinary consumer would have no expectations about the technical workings of an air bag. Tyson v. Ford Motor Company, 99-4035-CA (4th Jud. Cir. 2003). The trial court in Tyson gave Standard Instruction PL 5 with both the consumer expectations test and risk-benefit test. The jury returned a verdict for Plaintiff and the parties entered into a settlement before judgment was entered.

On January 16, 2003, in the Florida case of Alverez v. Nissan, 98-005264(14)(Fla.17th Judicial Cir.), the Broward Circuit Court gave the standard jury instruction, including both the consumer expectation and risk-benefit parts of PL 5. Alverez involved injuries sustained in a roll over accident. Alverez is on appeal to the 4th DCA.

In a trial court decision from Orange County in case involving an alleged seat belt design defect, the manufacturer convinced the court that the consumer expectation test should not be given in a design defect case. Force v. Ford Motor Company, Case No. CI 99-3878 (Fla. 9th Judicial Cir.), appeal filed. The jury instruction given in that case read: “A product is unreasonably dangerous when the foreseeable risk of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design, and the failure to use a safer design renders the product unreasonably dangerous”. This instruction fails to give either the consumer expectation or risk-benefit test.

The instruction given in Force was apparently taken from Scheman-Gonzales v. Saber Manufacturing, 816 So.2d 1133 (Fla. 4th DCA 2002), a Fourth DCA case which stated the language in the quoted jury instruction in dicta and cited the Restatement (Third) Torts. Interestingly, Scheman-Gonzales was a summary judgment case in which the trial court granted summary judgement to the defendant manufacturers and the 4th DCA reversed and remanded after finding that material issues of fact existed. Thus, the court did not make law on the issue of which, if either, of the alternative jury instructions in PL 5 would have been appropriate in that case.

The Restatement (Third) Torts recommends the risk-benefit test. No Florida Supreme Court or appellate court has adopted the Restatement (Third), so the decision in West v. Caterpillar which adopted the Restatement (Second) is still the law of this state. The Third Restatement of Torts was adopted (by the American Law Institute) in 1998. Ford’s Memorandum, p. 6. The Supreme Court approved PL 5 with the consumer expectation language in July 2000. Had the Supreme Court intended to adopt the Restatement (Third) and conform PL 5 to Restatement (Third), it had two years to formulate new jury instructions for that purpose. The Supreme Court did not amend Standard Instruction PL 5 to conform to Restatement (Third).

The actual holding in Scheman-Gonzales did not impact the issue of this article, however, the dicta that found its way into the jury instruction in the Force case is a departure from established Florida case law that follows Restatement (Second) §402A with regard to the test for defective products. Force has been appealed on the single issue of this jury instruction and the decision in that case will be very important in establishing that the consumer expectation test is still the law of Florida. The consumer expectation test has been recognized by numerous appellate decisions as being appropriate. This author is not aware of any Florida Supreme Court or appellate decision that has ever ruled that the consumer expectations test is improper of should not have been given.

Supreme Court and Appellate Decisions

In Standard Havens Products, Inc. v. Benitez, 648 So.2d 1192 (Fla. 1995), the Florida Supreme Court considered and did not disapprove a jury instruction on the Consumer Expectations Test. The trial court in that case "instructed on Benitez's strict liability claim. Included in that instruction was the following: 'A product is unreasonably dangerous because of its design if the product fails to perform as safely as an ordinary person would expect when used as intended or in a manner reasonably foreseeable by the manufacturer or the risk of danger in the design outweighs the benefits'". The issue before the Court in Benitez was a certified question from the Eleventh Circuit Court unrelated to the jury instruction. The Court answered the certified question in the negative and thereby approved the jury's verdict in favor of the Plaintiff. While this case did not involve alleged error in giving the consumer expectation, it is significant that the Supreme Court quoted the instruction given and did not indicate in any way that the instruction was not proper.

In a case scheduled for trial at the end of October, Ford argued that the consumer expectation test should not be given because the Florida Supreme Court officially adopted the risk-benefit test in Radiation Technology v. Ware, 445 So.2d 329 (Fla. 1984). Semidey v. Ford Motor Company, 02-4758-05 (17th Jud. Cir., pending). Radiation Technology did not involve a consumer or a consumer product and therefore, it is natural that the court would not have applied the consumer expectation test. The court in Radiation Technology listed a number of factors to consider in determining whether a product is defective including “The likelihood and gravity of potential injury against the utility of the product” and “Public knowledge and expectation of the danger”.

The Court did not state or imply that it was rejecting the consumer expectation test. The factors “gravity of potential injury against utility” (risk-benefit) was in no way elevated above the factor “Public knowledge and expectation of danger” (consumer expectation). The judge in Semidey ruled that the jury instruction in that case would, like in Tyson, include both the consumer expectation test and the risk-benefit test.

The Florida Standard Jury Instructions were significantly revised, including revisions to PL 5 in the year 2000 and the revisions were approved by the Florida Supreme Court. Standard Jury Instructions-Civil Cases, 778 So.2d 264 (Fla. 2000). If Radiation Technology had established the risk benefit test as the standard for finding design defects once and for all, the Committee on Standard Jury Instructions, and/or the Supreme Court would have removed the consumer expectation language and comment from PL 5.

Numerous appellate decisions in Florida have utilized the consumer expectation standard. For example, in ISK Biotech Corporation v. Douberly, 640 So.2d 85 (Fla. 1st DCA 1994), the court held that "[i]n Cassisi v. Maytag Co., 396 So.2d 1140 (Fla. 1st DCA 1981), this court, in deciding that the plaintiffs had established a case submissible for jury consideration, observed that the standard for all product defects under section 402A of the Restatement of Torts (Second) is the same, which asks whether "the ordinary consumer's expectations [were] frustrated by the products failure to perform under the circumstances in which it failed."

Likewise, in,Sanchez v. Hussey Seating Company, 698 So.2d 1326 (Fla. 1st DCA 1997), the court found no error with a jury instruction that included the following statement: "A product is unreasonably dangerous because of its design if the product fails to perform as safely as an ordinary consumer would expect when used as intended or in a manner reasonably foreseeable by the manufacturer or the risk of danger in the design outweighs the benefits." This instruction comes directly from PL 5. See also, Jones v. Heil Company, 566 So.2d 565, FN1 (Fla. 1st DCA 1990). ("The Restatement standard essentially asks whether the ordinary consumer's expectations were frustrated by the product's failure to perform under the circumstances in which it actually failed")(citing Cassisi).

While the issue of a consumer expectation jury instruction was not before the Court, in Jackson v. Bouton, 630 So.2d 1173 (Fla. 1st DCA 1994) the Court stated that "Plaintiff further alleged '[t]he safety spectacles failed to meet a reasonable consumer's expectations as to safety'" and later, "[a] lack of complaints is relevant to rebut the allegation that the spectacles do not meet a reasonable consumer's expectation as to safety." In reversing a summary judgment against Plaintiff on Plaintiff's strict liability claim, the Court held that admission of evidence on consumer expectation was not erroneous. Clearly, therefore, the court in that case believed that the Consumer Expectation Standard was the appropriate standard in that strict products liability case.

The Court in Cassisi discussed the fact that application of the Consumer Expectation Test is more difficult in design defect cases than manufacturing defect cases. In spite of that dicta, Cassisi did not hold that the consumer expectation test should be replaced by the risk-benefit test in design defect cases. In fact, the Court in Cassisi stated: “Notwithstanding the controversy by both academe and the courts over the proper test for determining a product’s defective condition, the standard for all product defects under Section 402A is the same: Were the ordinary consumer’s expectations frustrated by the product’s failure to perform under the circumstances in which it failed” Cassisi at 1144-1145.

In Zyferman v. Taylor, 444 So.2d 1088 (Fla. 4th DCA 1984), the Fourth DCA followed the Supreme Court cases adopting Restatement (Second) §402A and embraced the consumer expectation test in a products liability case. Although, the Zyferman case involved a manufacturing rather than a design defect, that does not change the Court’s holding that Florida has adopted the Restatement (Second) of Torts and the standard for defects in products liability cases is the consumer expectation test as set forth in Restatement (Second) §402A. Zyferman at 1090, citing Cassisi. As the 4th DCA noted in Zyferman, “this standard [consumer expectations] applies equally whether the defect results from a flaw in manufacturing, an error in design, or misinformation or inadequate warning.” Zyferman, at 1091.

In Zimmer v. Birnbaum, 758 So.2d 714 (Fla. 4th DCA 2000), the Fourth DCA affirmed a verdict in favor of a Plaintiff in a products liability case. In that case, the trial court gave a jury instruction based on PL 5 that included both the consumer expectation test and the risk-benefit test. The defendant manufacturer appealed claiming that the trial court erred in failing to tell the jury that a surgeon who implanted an allegedly defective steel rod in the Plaintiff's back was the "ordinary consumer" for purposes of the consumer expectation test. The court in Zimmer did not reach the issue of whether the jury instruction was proper because the defendant conceded that at least the risk benefit part of the instruction was correct and it was not possible to tell from the jury form whether the jury's decision was based on the consumer expectation test or the risk-benefit test or both.

Manufacturer’s Arguments

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

Florida 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 of Florida as well as the law in a great number of other states.¹ It is incumbent on Plaintiffs to fight as hard to preserve this law as manufacturers are fighting to change it.

1: Hisrich v. Volvo, 226 F.3d 445 (6th Cir. 2000)(applying Ohio law in an air bag case and citing a long list of other Ohio cases approving the consumer expectation test); Wheeler v. John Deere, 935 F.2d 1090 (10th Cir. 1991)(applying Kansas law); Delaney v. Deere and Company, 219 F.3d 1195 (10th Cir. 2000)(applying Kansas law); Ahrens v. Ford Motor Co., 340 F.3d 1142 (10th Cir. 2003)(applying Oklahoma law); Lamkin v. Towner, 138 Ill.2d 510 ( year)(product); Wright v. Brooke Group Ltd., 114 F.Supp.2d 797 ( N.D. Iowa, C.D., 2000)( applying Iowa law) (Iowa law supports giving both tests in the same case); Caterpillar Tractor Co. v. Beck, 593 P.2d 871 (Alaska 1979); French v. Grove Mfg. Co., 656 F.2d 295 (8th Cir. 1981) (applying Arkansas law); Potter v. Pneumatic Tool Co., 694 A.2d 1319 (Conn. 1997); Ontai v. Straub Clinic & Hosp., Inc., 659 P.2d 734 (Haw. 1983); Kudlacek v. Fiat S.p.A., 509 N.W.2d 603 (Neb. 1994); Lee v. Volkswagen of America, 688 P.2d 1283, 1285 (Okla. 1984); Sumnicht v. Toyota Motor Sales, 360 N.W.2d 2, 16-17 (Wisc. 1984); Bresnahan v. Chrysler Corp., 32 Cal. Rptr. 2d 804 (Cal. App. 2nd District, Division 2); Collazo-Santiago v. Toyota, 149 F.3d 23 (1st. Cir. 1998)(applying Puerto Rico law)