The topic of this column in October, 2003, was the state of the law in Florida regarding the consumer expectation test for product defects. That article discussed the case of Force v. Ford Motor Co., Case No. CI99-3878 (Fla. 9th Judicial Circuit), which was, at that time, on appeal to the Fifth DCA. On August 6, 20043, the Fifth DCA rendered an opinion in which it unequivocally affirmed that Florida law supports the application of the consumer expectation test in design defect cases. This article will discuss the highlights of the Fifth DCA’s decision and analysis in Force v. Ford.

Force v. Ford involved a vehicle accident in which the injured party, Mark Force, was severely disabled as a result of a head on collision. At the time of the accident, Mr. Force was wearing his safety belt. Mr. Force’s counsel presented evidence that the shoulder belt on his Ford Escort “unspooled”, creating excess slack in the belt which, in turn, resulted in Mr. Force’s head injuries.

Prior to trial, counsel for Mr. Force requested the court give Standard Jury Instruction PL5 which, in part, 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].

The first bracketed part encompasses the consumer expectation test and the second encompasses the risk/benefit test. Mr. Force requested the court to give a jury instruction with both bracketed parts included.

Despite the inclusion of the consumer expectation test in the Florida Supreme Court’s Standard Jury Instructions, counsel for the defendants argued that 1) The consumer expectation is not recognized in Florida; or, it if is recognized, 2) it is not applicable to “complex design cases” such as the Force case. The Orange County Circuit court ruled in favor of the defendants and instructed the jury as follows: A product is unreasonably dangerous when the foreseeable risks 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 alternative design renders the product unreasonably dangerous.

While the underlying basis of the trial court’s decision to give this instruction is not clear, the trial court apparently agreed with the defendants that either Florida did not recognize the consumer expectation test, or that the test was not applicable to cases involving seat belt design. After being instructed as described above, the jury returned a defense verdict.

On appeal, the Fifth DCA held that the trial court’s failure to instruct on the consumer expectation test was reversible error. The court also found that the instruction given by the trial court was essentially a reformulation of the risk utility test. The requirement of proving a reasonable alternative design has not been adopted in Florida. The court held that Florida recognizes and embraces the consumer expectation test. Moreover, the court held that, while there may be cases in which a product’s design is too complex for a jury to have reasonable expectations as to its safety, cases involving seat belt design do not fall into that category.

This case is very significant in that it represents the first DCA opinion in Florida in which the court specifically addressed the question of whether a jury instruction on consumer expectation was supported by Florida law. As the court indicated in its opinion, prior to this decision, the questions raised by the Force case were “washed with uncertainty”. After reviewing some of the cases relied upon by the parties to argue that the consumer expectation test should or should not apply, the Court in Force indicated that the only cases that addressed the consumer-expectation standard in Florida with any directness are Cassisi v. Maytag, 396 So.2d 1140 (Fla. 1st DCA 1981), Light v. Weldarc Co., Inc., 569 So.2d 1302 (Fla. 5th DCA 1990) and Edic v. Century Products, 364 F.3d 1276 (11th Cir. 2004).

In Cassisi v. Maytag, 396 So.2d 1140 (Fla. 1st DCA 1981), the court applied the consumer expectation test, but manufacturers have always argued that this was a summary judgment case and the holding was limited to cases involving manufacturing defects. In Light v. Weldarc Co., Inc., 569 So.2d 1302 (Fla. 5th DCA 1990), the court stated in dicta that “the issue to be resolved is whether the product, at the time it left the seller’s hands, is in a condition not contemplated by the consumer . . .” (Citing Restatement (Second) of Torts, Sec. 402A). However, as noted by the court in Force v. Ford, the Light v. Weldarc case was also a summary judgment case and further, the decision not turn on this point.

Edic v. Century is a recent case in which the 11th Federal Circuit stated: [T]he normal use requirement from Cassisi is based on the consumer expectations test from the Restatement of Torts (Second), which asks whether ‘the ordinary consumer’s expectations [are] frustrated by the product’s failure to perform under the circumstances in which it failed.’ . . . This, in turn, is generally a question of fact for the jury”.

Edic, 364 F.3d at 1284. Edic involved a child car seat that failed to restraint the child during an accident. Again, while suggesting approval of the consumer expectations test, the Edic decision did not specifically answer the question.

The court in Force also discussed Scheman-Gonzales v. Saber Manufacturing Co., 816 So.2d 1133 (Fla. 4th DCA 2002), a case that his been widely cited by manufacturers as demonstrating that Florida has adopted the Restatement (Third) or Torts. The Restatement (Third) indicates that a product is defective in design “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design” and the failure to adopt this alternative design “renders the product not reasonably safe.” The court in Force indicated that Scheman-Gonzales was limited to cases in which the Plaintiff’s theory of defect is failure to warn. More importantly, the Force court finally put to rest the argument that Scheman-Gonzales is proof that Florida has adopted the Restatement (Third) of Torts. The court in Force stated, unequivocally, that: “. . . the Restatement (Third) position has not been adopted by any appellate court in Florida.”

While the Force decision should eliminate further questions about the meaning of dicta contained in various cases regarding the proper test for product defects, it will probably not stop manufacturers from arguing that the holding in Force is strictly limited to cases involving seat belt design. The court in Force stated that “there may indeed be products that are too complex for a logical application of the consumer-expectation standard.” Force at pg. 6. The court did not go on to state what types of products might be too complex, but in supporting its decision that seat belts were not too complex, the court cited a number of cases from outside Florida which held that air bags were not too complex for application of the consumer expectation test. Manufacturers can be expected to continue arguing that every alleged design defect not involving a seat belt raises “complex design issues” too difficult for jurors to understand.

Nevertheless, the Fifth DCA’s decision in Force is an enlightened rebuff to routine arguments that have been raised by defendant manufacturers during recent years that the consumer expectation instruction in PL5 should not be given in design defect cases. Plaintiffs’ attorneys who prosecute product liability cases must be aware of this excellent new opinion and of the usefulness of this case as an important weapon for consumers.