McDONALD, J.
We have been asked by the United States Court of Appeals for the Second
This case requires us to revisit our seminal strict product liability precedent, Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 694 A.2d 1319 (1997), and to clarify the proper purview of the two strict liability tests recognized in that case: the ordinary consumer expectation test and the modified consumer expectation test. We conclude that the modified consumer expectation test is our primary strict product liability test, and the sole test applicable to the present case. Because the obvious
The District Court's ruling on the defendant's motion for a new trial and its renewed motion for judgment as a matter of law sets forth the following facts that the jury reasonably could have found, which we supplement with relevant procedural history. Izzarelli v. R.J. Reynolds Tobacco Co., 806 F.Supp.2d 516 (D.Conn.2011). The relevant time frame in this case spans from the early 1970s, when the plaintiff first began to smoke, until the late 1990s, when she was diagnosed with, and treated for, cancer. The defendant has manufactured Salem King (Salem) cigarettes, the menthol cigarette brand smoked by the plaintiff, since 1956. Id., at 520. In the early 1970s, the defendant identified certain weaknesses in its brand. Id., at 521. One of the concerns identified was that almost one half of Salem users were light smokers, meaning that they smoked one to fifteen cigarettes per day. In an effort to capture a larger share of its desired market, the defendant modified Salem's design. Id.
The defendant's internal research had disclosed two important factors concerning nicotine, a naturally occurring but addictive component of tobacco. First, the form of the nicotine affects the rate at which it is absorbed and delivers its "`kick'" to the smoker. Id. Of nicotine's two principal forms, bound and free, free nicotine (also known as freebase nicotine) moves through the body's blood/brain barrier faster and provides the smoker with a higher and more immediate kick. Addiction liability increases in relation to the amount and speed of the delivery of free nicotine.
The defendant modified its Salem cigarettes in a manner that took both of these factors into account. The defendant had identified seven methods for manipulating the nicotine kick of its cigarettes, which it incorporated into its product. Id., at 522. Among those methods was adding ammonia compounds to turn the nicotine into its more potent freebase form. Adding acetaldehyde, one of scores of chemicals added to Salem cigarettes,
By the early 1970s, the defendant had lowered the nicotine yield in Salem cigarettes from its 1956 level of 3.1 milligrams to 1.3 milligrams — a level determined to be optimal to maintain addiction. Id. At that time, Salem cigarettes contained fifteen to nineteen milligrams of tar, an amount that exceeded the level in its main competitor for menthol cigarettes, Kool. Id. The defendant had the capability of reducing the level of tar in its cigarettes to one milligram or less; in fact, two of its brands had two milligrams of tar in 1973. Id. Thus, the defendant manipulated the natural effect of nicotine through the use of additives, tobacco formulation, and other methods. In so doing, the defendant enhanced the addictive nature of the product, increased the number of cigarettes smoked by its consumer, and ultimately delivered a higher level of carcinogens to the consumer as compared to other cigarettes. Because the causal relationship between smoking and cancer is dose related, increasing the Salem smoker's exposure to carcinogens increased the likelihood of cancer. Id., at 523-24.
The plaintiff began smoking in the early 1970s, when she was approximately twelve years old. She quickly became severely addicted, eventually smoking two to three packs of Salem cigarettes daily. Id., at 524. Throughout the period when the plaintiff smoked, a warning from the Surgeon General of the United States that smoking is dangerous to one's health appeared on the packaging of Salem cigarettes. See id., at 527 n. 4.
In 1996, at age thirty-six and after smoking for twenty-five years, the plaintiff was diagnosed with cancer of the larynx. Id., at 524. A person with the plaintiff's smoking history has between a 6.9 and 20 times greater chance of developing laryngeal cancer than a nonsmoker. Id. To treat her cancer, the plaintiff's larynx was removed and she received radiation. In 1997, the plaintiff quit smoking. She is cancer free, but continues to have various disabilities and problems related to her laryngectomy. Id.
After the plaintiff's cancer diagnosis and treatment, she commenced the present product liability action in federal court under theories of strict liability and negligent design.
The District Court rejected these claims in prejudgment and postjudgment motions. With respect to the plaintiff's theory of the case, the court concluded that the plaintiff's claim alleged, and the evidence demonstrated, that Salem cigarettes are uniquely designed and manufactured in such a way to make that product different from other cigarettes. Id., at 526 n. 3. With respect to the governing law, the court concluded that, although Connecticut derives an essential definition for product liability actions from comment (i) to § 402A of the Restatement (Second), there is no evidence that Connecticut has adopted the limitations in comment (i), including "[g]ood tobacco." Id., at 536. The court further concluded that the jury properly could be instructed on the modified consumer expectation test. The court reasoned that this test was appropriate because the evidence demonstrated the complex design of cigarettes and the potential inability of the ordinary consumer (a beginner smoker, often a youth or minor) to form proper safety expectations. Id., at 537. Finally, the court concluded that a verdict for the plaintiff on that test under the plaintiff's theory of the case would not amount to a ban on all cigarettes given the evidence of the unique design of Salem cigarettes. Id.
Ultimately, the court decided to instruct the jury on both the ordinary and modified consumer expectation tests as alternative bases for liability. Id., at 527, 535-36. In its instructions applicable to both tests, the District Court cautioned: "For [the] plaintiff to meet her burden of proving ... that Salem ... cigarettes are defective, she must show that the Salem ... cigarettes were `unreasonably dangerous' to her, the user.... With respect to cigarettes in general, I instruct you that cigarettes are not defective merely because nicotine and/or carcinogenic substances may be inherent in the tobacco from which such cigarettes are manufactured." Id., at 535. The jury returned a verdict in favor of the plaintiff, finding the defendant liable for both strict liability and negligent design.
In accordance with the defendant's request, the jury assessed comparative responsibility for the plaintiff's injuries, attributing 42 percent to the plaintiff and 58 percent to the defendant. After reducing the damages in accordance with the verdict, the District Court rendered judgment in the plaintiff's favor in the amount of $7,982,250 in compensatory damages, as well as punitive damages and offer of judgment interest.
The defendant appealed to the Second Circuit, renewing, inter alia, its claim that the plaintiff's product liability cause of action is foreclosed by comment (i) to § 402A of the Restatement (Second) because comment (i) precludes liability of a seller of good tobacco. Because the Second Circuit deemed Connecticut law to be unsettled regarding this matter, it certified a question of law to this court regarding the preclusive effect of comment (i) on a strict product liability claim.
Before this court, the plaintiff argues: (1) the ordinary consumer expectation test, on which both comment (i) to § 402A and its good tobacco example are predicated, has been superseded as a matter of Connecticut law in favor of the modified consumer expectation test, under which consumer expectations are but one factor in assessing liability; (2) even under the ordinary consumer expectation test, the good tobacco exception in comment (i) to § 402A is limited to raw tobacco and does not require proof of "adulteration" or "contamination" of the cigarettes; and (3) public policy considerations militate against applying comment (i) to § 402A in a manner that would immunize cigarette manufacturers from strict liability for design defects. In response, the defendant contends that, because the only question before this court is whether comment (i) to § 402A precludes an action against a cigarette manufacturer premised on an unadulterated cigarette, a question that arises in connection with the ordinary consumer expectation test, the plaintiff's argument relating to the modified consumer expectation test is outside the scope of the certified question and should not be addressed. Moreover, it contends that the modified test is an improper test for unadulterated, generic cigarettes. As to the ordinary consumer expectation test that it claims should govern, the defendant contends that, because the addictive and cancer causing properties of cigarettes have been well-known since at least the 1960s, jurisdictions espousing the standard in comment (i) to § 402A have routinely dismissed claims predicted on such alleged defects and this court should conclude likewise.
To resolve these competing contentions, it is necessary to provide some background on the development of Connecticut's strict product liability law. In 1965, Connecticut became one of the first jurisdictions to adopt, as a matter of state common law, § 402A of the Restatement (Second) of Torts, which had been adopted the previous year by the American Law Institute.
This court derived our definition of unreasonably dangerous, the second element of our strict liability test, from comment (i) to § 402A of the Restatement (Second): "To be considered unreasonably dangerous, the article sold must be 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 as to its characteristics." (Internal quotation marks omitted.) Slepski v. Williams Ford, Inc., 170 Conn. 18, 23, 364 A.2d 175 (1975), quoting 2 Restatement (Second), supra, at § 402A, comment (i), p. 352; accord Giglio v. Connecticut Light & Power Co., supra, 180 Conn. at 234, 429 A.2d 486. This definition eventually came to be known under our law as the ordinary consumer expectation test. See Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. at 222, 694 A.2d 1319.
Although our courts repeatedly have applied this definition, they have never referred to the related explanation or illustrations in comment (i) to § 402A. Comment (i) to § 402A of the Restatement (Second) of Torts provides in full: "The rule stated in this [s]ection applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from over-consumption. Ordinary sugar is a deadly poison to diabetics, and castor oil found use under Mussolini as an instrument of torture. This is not what is meant by `unreasonably dangerous' in this [s]ection. The article sold must be 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 as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous. Good butter is not unreasonably dangerous merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish oil, is unreasonably dangerous." (Emphasis added.)
In 1979, our legislature adopted our product liability act. See Public Acts 1979, No. 79-483. That liability act required all common-law theories of product liability to be brought as a statutory cause of action. See General Statutes § 52-572n. However, the liability act neither expressly codified our common-law definition of defective product under § 402A and comment (i) nor supplanted it with its own definition. But see General Statutes § 52-572q (providing elements for failure to warn defect). A significant change under the liability act was the adoption of comparative responsibility in lieu of contributory fault, so that a plaintiff's recovery could be reduced in proportion to his or her responsibility for the injury but not barred, no matter how high the degree of fault. See General Statutes §§ 52-572l and 52-572o, legislatively overruling Hoelter v. Mohawk Service, Inc., 170 Conn. 495, 505-506, 365 A.2d 1064 (1976) (importing contributory negligence concept and applying it to strict product liability).
As product liability jurisprudence began to develop beyond its historical focus to include design defects and failure to warn defects, many jurisdictions found the ordinary consumer expectation test to be an inadequate tool. See Restatement (Third), supra, at § 1, comment (a), pp. 6-7 ("it soon became evident that § 402A, created to deal with liability for manufacturing defects, could not appropriately be applied to cases of design defects or defects based on inadequate instructions or warnings"). Most obviously, one could not simply compare the defective product to others in the product line to make an objective assessment of the consumer's expectations of the product. See id., at § 2, comment (a), pp. 15-16 ("In contrast to manufacturing defects, design defects and defects based on inadequate instructions or warnings are predicated on a different concept of responsibility.... [S]uch defects cannot be determined by reference to the manufacturer's own design or marketing standards
For this and other reasons principally related to problems of proof, many jurisdictions adopted a multifactor "risk-utility" balancing test for design defect cases in lieu of, or in addition, to the consumer expectation test. See, e.g., Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 884 (Alaska 1979); Barker v. Lull Engineering Co., 20 Cal.3d 413, 435, 573 P.2d 443, 143 Cal.Rptr. 225 (1978); Armentrout v. FMC Corp., 842 P.2d 175, 183 (Colo.1992) (en banc); Radiation Technology, Inc. v. Ware Construction Co., 445 So.2d 329, 331 (Fla.1983); Ontai v. Straub Clinic & Hospital, Inc., 66 Haw. 237, 243, 659 P.2d 734 (1983); Lamkin v. Towner, 138 Ill.2d 510, 529, 150 Ill.Dec. 562, 563 N.E.2d 449 (1990); Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 807-809, 395 A.2d 843 (1978); Turner v. General Motors Corp., 584 S.W.2d 844, 848 (Tex.1979); see also 1 D. Owen & M. Davis, supra, at § 8.15, p. 762 ("during the 1980s ... the consumer expectation test gradually lost ground to risk-utility in their battle for supremacy as independent tests of design defectiveness" [footnote omitted]). When the Restatement (Third) of Torts was adopted by the American Law Institute in 1997, it deemed the consumer expectation test inappropriate for design defects and abandoned that test in favor of a risk-utility test that focused on the availability of a feasible, safer alternative. Restatement (Third), supra, at § 2(b); id., at § 2, comment (g), pp. 27-28. Under the Restatement (Third) of Torts and the various jurisdictions' risk-utility tests, consumer expectations were a relevant, but not necessarily dispositive, consideration in determining whether there was a design defect. Restatement (Third), supra, at § 2, comment (d), p. 20; id., at § 2, reporters' note, comment (d)(IV)(C), pp. 84-87.
In 1997, in Potter, this court considered the viability of our ordinary consumer expectation test for design defect cases. See Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. at 206-23, 694 A.2d 1319. The defendants in that case had requested that the court abandon that test for such cases in favor of the risk-utility test in the second tentative draft of the Restatement (Third) of Torts.
Although the court in Potter maintained its allegiance to § 402A, it acknowledged criticisms of the ordinary consumer expectation test and decided that some change in our law was necessary because that test also could preclude relief for valid claims. Id., at 219-20, 694 A.2d 1319. In particular, the court pointed to the problem of complex products for which a consumer might not have informed safety expectations. Id., at 219, 694 A.2d 1319. The court was concerned, however, with shifting the focus to the conduct of the manufacturer and in turn abandoning strict liability. Id., at 221-22, 694 A.2d 1319. Accordingly, the court decided to adopt a test that would incorporate risk-utility factors into the ordinary consumer framework. Id., at 220-21, 694 A.2d 1319. Under the "modified" consumer expectation test, the jury would weigh the product's risks and utility and then inquire, in light of those factors, whether a "reasonable consumer would consider the product design unreasonably dangerous." Id., at 221, 694 A.2d 1319. The court's sample jury instruction incorporated the definition of unreasonably dangerous from comment (i) to § 402A of the Restatement (Second) and then provided a nonexclusive list of factors that could be used to determine what an ordinary consumer would expect.
The court in Potter emphasized that it would "not require a plaintiff to present evidence relating to the product's risks and utility in every case.... There are certain kinds of accidents — even where fairly complex machinery is involved — [that] are so bizarre that the average juror, upon hearing the particulars, might reasonably think: Whatever the user may have expected from that contraption, it certainly wasn't that.... Accordingly, the ordinary consumer expectation test [would be] appropriate when the everyday experience of the particular product's users permits the inference that the product did not meet minimum safety expectations." (Citation omitted; internal quotation marks omitted.) Id., at 222, 694 A.2d 1319. In other words, the ordinary consumer expectation test would be appropriate when the incident causing injury is so bizarre or unusual that the jury would not need expert testimony to conclude that the product failed to meet the consumer's expectations. The court also indicated that instructions regarding both tests could be given to the jury, if supported by the evidence. Id., at 223, 694 A.2d 1319.
Potter was decided at a point in time when Connecticut design defect jurisprudence was not well developed. Indeed, as the present case illustrates, because actions under our liability act often have
At the outset, we address the defendant's contention that our analysis must be limited to the ordinary consumer expectation test because the modified consumer expectation test falls outside of the scope of the certified question. Simply put, we disagree. The certified question asks: "Does [comment (i) to § 402A] preclude a suit premised on strict products liability against a cigarette manufacturer based on evidence that the defendant [designed] cigarettes to increase daily consumption without regard to the resultant increase in exposure to carcinogens, but in the absence of evidence of adulteration or contamination?" As we have explained in part I of this opinion, § 402A of the Restatement (Second) is the governing standard for both tests and the definition in
For the reasons set forth subsequently, we reach the following conclusions regarding the standards for a strict product liability action based on defective design generally and in the present case. Under Potter, the modified consumer expectation test is our primary test. The ordinary consumer expectation test is reserved for cases in which the product failed to meet the ordinary consumer's minimum safety expectations, such as res ipsa type cases. A jury could not reasonably conclude that cigarettes that cause cancer fail to meet the consumer's minimum safety expectations. Therefore, the plaintiff was required to proceed under the modified consumer expectation test. Comment (i) to § 402A of the Restatement (Second) does not present a per se bar to recovery under the modified consumer expectation test. Accordingly, the answer to the certified question is "no."
To begin, we acknowledge that there is language in Potter, as well as in subsequent Connecticut case law, that could support each of the following interpretations of our strict liability standards for design defects: (1) the ordinary consumer expectation test is the primary test, with the modified consumer expectation test reserved exclusively for complex product designs for which an ordinary consumer could not form safety expectations (simple/complex divide); (2) the modified consumer expectation test is the default test, with the ordinary consumer expectation test reserved for products that fail to meet minimum safety expectations; and (3) a plaintiff may elect to proceed under either test or both tests, such that, even if the claim fails under the ordinary consumer expectation test, the plaintiff may prevail under the modified consumer expectation test with the assistance of expert testimony.
Moreover, a simple/complex divide would not be ideal because the line between these categories is not always clear. See id., at 269 n. 2, 694 A.2d 1319 (Berdon, J., concurring) (criticizing majority for failure to provide such guidance); D. Fisher, supra, 84 Conn. B.J. at 333 ("it would be helpful to provide guidance as to how the court decides whether a case is `complex' or `simple'" [emphasis in original]). Indeed, one could readily categorize the defendant's Salem cigarettes as a complex product because of the hundreds of ingredients incorporated into Salem cigarettes, as well as the myriad physical, chemical
We observe that other jurisdictions that apply both a consumer expectation test and a risk-utility test have rejected the simple/complex divide. See, e.g., Mikolajczyk v. Ford Motor Co., 231 Ill.2d 516, 528-41, 327 Ill.Dec. 1, 901 N.E.2d 329 (2008) (rejecting argument that risk-utility test is only test to be applied if product is complex and if injury occurred in circumstances unfamiliar to average consumer and that consumer expectation test is reserved for cases involving simple products or everyday circumstances); Calles v. Scripto-Tokai Corp., 224 Ill.2d 247, 250, 309 Ill.Dec. 383, 864 N.E.2d 249 (2007) ("In Illinois, two tests are employed when determining whether a product is unreasonably dangerous under a strict liability design-defect theory — the consumer-expectation test and the risk-utility test. In this case, we are asked to consider whether there is a `simple product' exception to the application of the risk-utility test. That is, we must decide whether a product which is deemed `simple' and its dangers `open and obvious' will be per se exempt from the risk-utility test and subject only to the consumer-expectation test. We decline to adopt such a per se rule."); see also Soule v. General Motors Corp., 8 Cal.4th 548, 568-69, 882 P.2d 298, 34 Cal.Rptr.2d 607 (1994) (The court rejected the defendant's argument "that the consumer expectations test is improper whenever... a complex product, or technical questions of causation are at issue. Because the variety of potential product injuries is infinite, the line cannot be drawn as clearly as [the defendant] proposes. But the fundamental distinction is not impossible to define. The crucial question in each individual case is whether the circumstances of the product's failure permit an inference that the product's design performed below the legitimate, commonly accepted minimum safety assumptions of its ordinary consumers."); Soule v. General Motors Corp., supra, at 570, 34 Cal.Rptr.2d 607, 882 P.2d 298 (explaining that risk-utility test was only proper test in that case, not because product was complex but because jury required expert testimony to determine whether product was not reasonably safe).
Although some of the shortcomings of the ordinary consumer expectation test have been best illustrated in relation to complex designs, the concerns with this test have never been limited to such designs. See, e.g., J. Beasley, Products Liability and the Unreasonably Dangerous Requirement (1981) p. 88 (asserting that consumer expectation test has "little logical application to new products, where no expectation of safety may have developed, or to obscure products with a limited market, where the number of consumers is not conducive to a clear consensus," and also noting opposite problem, that "if an entire industry rejects a safe design and uses an unsafe one, the unsafe one may have become expected"); see also S. Birnbaum, "Unmasking the Test for Design Defect: From Negligence [to Warranty] to Strict Liability to Negligence," 33 Vanderbilt L.Rev. 593, 613-15 (1980) (discussing generally applicable concerns with ordinary consumer expectation test). One significant concern has been that the ordinary consumer expectation test, which deems
The court in Potter had no occasion to address this concern. Nonetheless, it is evident that limiting the modified test to complex products for which the consumer could not form safety expectations would be antithetical to the public policies informing our product liability law. A consequence of such a limitation would be to immunize manufacturers even when they readily could have reduced or eliminated the product's danger. It could also immunize manufacturers for design decisions that increase the risk of known dangers, as in the present case. Our legislature's express rejection of comparative or contributory negligence as a bar to recovery in a strict liability action would be in tension with a sweeping immunity based solely on the consumer's knowledge. Cf. Calles v. Scripto-Tokai Corp., supra, 224 Ill.2d at 262, 309 Ill.Dec. 383, 864 N.E.2d 249 (reaching same conclusion in light of legislature's rejection of assumption of risk as bar to strict products liability). Moreover, Potter expanded our product liability tests to remove impediments to recovery.
More fundamentally, providing such immunity would remove an important incentive to improving product safety. For this reason, there has been a clear and over-whelming trend in other jurisdictions to allow consumers to pursue defective product design claims despite open and obvious dangers, usually under a multifactor risk-utility test. See Restatement (Third), supra, at § 2, reporters' note, comment
Making the modified consumer expectation test our default test for design defect claims, and reserving the ordinary consumer expectation test for those products that fail to meet legitimate, commonly accepted minimum safety expectations, provides a safety incentive that is consonant with our state's public policies. Moreover, such a framework is the only one that can be reconciled with this court's direction in Potter that the jury could be instructed on both tests if supported by the evidence. Allowing the jury to consider both tests is only logical if the standard, and not merely the nature of proof, differs under each test. If the two tests were merely alternative methods of proving the same standard — the product failed to meet the ordinary consumer's expectations — then a jury's verdict that this standard was not met under one test could not logically be reconciled with a verdict that this standard was met under the other test. Either the product met the ordinary consumer's expectations, or it did not. If, however, one test sets the floor for recovery — a product that meets minimum safety expectations — then a verdict for the defendant on that test logically could be reconciled with a plaintiff's verdict on a test that sets a higher standard. Cf. Barker v. Lull Engineering Co., supra, 20 Cal.3d at 426 n. 7, 143 Cal.Rptr. 225, 573 P.2d 443 ("The flaw in the ... analysis [of the Restatement (Second)] ... is that it treats such consumer expectations as a `ceiling' on a manufacturer's responsibility under strict liability principles, rather than as a `floor.'... [P]ast ... decisions establish that at a minimum a product must meet ordinary consumer expectations as to safety to avoid being found defective." [Emphasis
Accordingly, we hold that, under our product liability law, the ordinary consumer expectation test is reserved for those limited cases in which a product fails to meet a consumer's legitimate, commonly accepted minimum safety expectations. Expert testimony on product design is not needed to prove the product's defect, nor is the utility of the product's design an excuse for the undisclosed defect. See Soule v. General Motors Corp., supra, 8 Cal.4th at 567, 34 Cal.Rptr.2d 607, 882 P.2d 298 ("the consumer expectations test is reserved for cases in which the everyday experience of the product's users permits a conclusion that the product's design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design" [emphasis omitted]); A. Twerski & J. Henderson, "Manufacturers' Liability for Defective Product Designs: The Triumph of Risk-Utility," 74 Brook. L.Rev. 1061, 1108 (2009) ("overwhelming majority of cases that rely on consumer expectations as the theory for imposing liability do so only in res ipsa-like situations in which an inference of defect can be drawn from the happening of a product-related accident"). All other cases should be determined under the modified consumer expectation test.
With this clarification of our law, it is evident that the plaintiff in the present case properly could proceed only under the modified consumer expectation test. A cigarette that exposes the user to carcinogens and the attendant risk of cancer cannot be said to fail to meet an ordinary consumer's legitimate, commonly accepted minimum safety expectations.
Our legislature did not ratify this court's previous adoption of comment (i) to § 402A when it enacted the liability act. Neither § 402A nor comment (i) is expressly or implicitly referenced in the liability act. Cf. S.C.Code Ann. § 15-73-30 (2005) ("[c]omments to § 402A of the Restatement of Torts, Second, are incorporated herein by reference thereto as the legislative intent of this chapter");
With regard to the defendant's preemption argument, we have two responses. Insofar as this argument implicates federal preemption and evidentiary issues, we believe such matters should be resolved by the Second Circuit. Insofar as the defendant contends that application of the modified consumer expectation test to circumstances like the present case could effectively allow a jury to ban commonly used and useful products, thus usurping our legislature's authority over such matters, we find such concerns too speculative to warrant a contrary rule. We have every confidence that the possibility of such outlier verdicts could be addressed through a motion for judgment notwithstanding the verdict. Cf. Calles v. Scripto-Tokai Corp., 358 Ill.App.3d 975, 982, 295 Ill.Dec. 258, 832 N.E.2d 409 (2005) ("in very extreme cases [i.e., products with very low production costs], courts may make the determination that the cost-benefit analysis under the risk-utility test strongly favors the manufacturer and there is no need to send the case to [the] jury because no reasonable jury could find for the plaintiff" [internal quotation marks omitted]), aff'd, Calles v. Scripto-Tokai Corp., 224 Ill.2d 247, 309 Ill.Dec. 383, 864 N.E.2d 249 (2007); Hernandez v. Tokai Corp., 2 S.W.3d 251, 261 (Tex.1999) ("the issue of whether the product is unreasonably
Finally, we note that other jurisdictions applying some form of risk-utility test to design defect claims against cigarette manufacturers have found no impediment to the application of that test if the plaintiff identifies some defect specific to the cigarette brand(s) at issue and/or a reasonably safer alternative.
Finally, we turn to the question of whether comment (i) to § 402A of the Restatement (Second) is a per se bar to the plaintiff's recovery under the modified consumer expectation test. We conclude that it is not.
Comment (i) to § 402A serves a limited role under the modified consumer expectation test. Although the modified test asks the jury to weigh various factors through the ultimate lens of the consumer's expectations, as a functional and practical matter that weighing process supplants the definition in comment (i) of unreasonably dangerous.
To allow the ordinary consumer's awareness of the product's potential danger to preclude recovery as a matter of law, however, would make Connecticut an outlier and defeat our intention in relegating the ordinary consumer expectation test to a more limited role.
We answer the certified question "no."
No costs shall be taxed in this court to either party.
In this opinion EVELEIGH, ROBINSON and VERTEFEUILLE, Js., concurred.
ZARELLA, J., with whom ESPINOSA, J., joins, concurring.
I agree with the majority's answer to the certified question but not its analysis because I believe we should replace the dual design defect standards announced in Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 219-23, 694 A.2d 1319 (1997), with the more modern standard for design defect claims set forth in the Restatement (Third) of Torts, Products Liability.
This case presents our first occasion to directly consider our design defect standards since Potter was decided nearly twenty years ago. Potter formulated our standards at a time when design defect law was in transition. Courts had acknowledged that the ordinary consumer expectations test, derived from comment (i) to § 402A of the Restatement (Second) of Torts, was ill-suited for judging product design cases because it did not provide sufficient guidance to juries and was often used to deny recovery to plaintiffs for product related injuries. See, e.g., 1 D. Owen & M. Davis, Products Liability (4th Ed.2014) § 8:4, pp. 714-16. In its place, courts overwhelmingly turned to the risk-utility test, an alternative to the ordinary consumer expectations test, which allows a jury to assess a product design by weighing factors relating to its risks and benefits against those of possible design alternatives. Id., at §§ 8:6 through 8:7, pp. 722-26.
Sensitive to criticisms of the ordinary test, Potter created the "modified" consumer expectations test by incorporating risk-utility factors into the existing consumer expectations test. Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. at 220, 222, 694 A.2d 1319; see id., at 221, 694 A.2d 1319. In formulating its standards, however, Potter rejected the approach of a draft form of the Restatement (Third) of Torts, Products Liability, which required, as an essential part of its risk-utility test, that a plaintiff present evidence of a reasonable alternative design. See id., at 214-19, 221, 694 A.2d 1319. Such evidence allows for a jury to assess the manufacturer's chosen design by comparing it against the costs and benefits of adopting a safer alternative. See 1 D. Owen & M. Davis, supra, at § 8:10, p. 739. In Potter, the court expressed concern that requiring this proof might harm a plaintiff by placing too many evidentiary hurdles along the path to recovery by, for example, forcing the plaintiff to present expert testimony in every case. See Potter v. Chicago Pneumatic Tool Co., supra, at 217-19, 694 A.2d 1319.
Both of Potter's tests were ill-conceived, however, and they remain problematic today, even with the majority's clarification of when each test should be applied. The problems with Potter's standards are not limited to their lack of clarity. More fundamentally, its rejection of a reasonable alternative design requirement leaves a jury applying its standards without any objective basis against which to assess the product design at issue.
Since Potter was decided, a consensus has emerged among courts and commentators
Reflecting this consensus, the Restatement (Third) requires proof of a reasonable alternative design. See Restatement (Third), Torts, Products Liability § 2(b), p. 14 (1998). Notably, however, the Restatement (Third), which was adopted shortly after Potter was decided, resolves Potter's stated concerns by incorporating appropriate exceptions to the reasonable alternative design requirement and by making clear that expert testimony is not required in all cases to satisfy this obligation. See id., at § 2, comment (e), pp. 21-22; id., at § 3, p. 111; id., at § 4(a), p. 120.
In light of these developments favoring the use of a pure risk-utility balancing standard based on proof of a reasonable alternative design, I believe that we should take this rare opportunity to reconsider our design defect standards rather than simply clarifying and reaffirming them, as the majority does today.
On the basis of my review of the Restatement (Third), I am persuaded that we should now adopt the approach set forth therein as an accurate statement of our law controlling design defect claims. The Restatement (Third) has resolved the concerns identified in Potter and provides a clearer and fairer method for resolving design claims. Because the Restatement (Third) does not rely on the standards contained in § 402A of the Restatement (Second) of Torts, and does not provide an absolute bar to an action against a cigarette manufacturer for defective design, I join in the majority's answer to the certified question, although not its analysis.
Consistent with our product liability law, the Restatement (Third) recognizes three distinct categories of product defect claims: manufacturing defects, design defects, and marketing defects, also called a failure to warn. Restatement (Third), supra, at § 2(a), (b) and (c), p. 14; see
For design defect claims, the Restatement (Third) uses a risk-utility balancing test that allows a jury to decide liability by comparing the risks and benefits of the manufacturer's design against the risks and benefits of adopting a safer alternative. See id. At its core, the risk-utility test asks "whether the safety benefits of remedying a design danger [are] worth the costs." 1 D. Owen & M. Davis, supra, at § 8:6, p. 723. It requires a plaintiff challenging a product design to show that the manufacturer could reasonably have designed its product to be safer. See id.; see also T. Jankowski, "Focusing on Quality and Risk: The Central Role of Reasonable Alternatives in Evaluating Design and Warning Decisions," 36 S. Tex. L.Rev. 283, 320 (1995). The jury then compares the risks and benefits of the manufacturer's design against the risks, benefits, and costs of adopting the proposed alternative. See 1 D. Owen & M. Davis, supra, at § 8:10, pp. 739-41; see also T. Jankowski, supra, at 343. Consistent with the approach of the Restatement (Third), a "vast majority" of courts and commentators agree that the risk-utility balancing test provides the best standard for judging design defect claims. Evans v. Lorillard Tobacco Co., 465 Mass. 411, 426, 990 N.E.2d 997 (2013); see also 1 D. Owen & M. Davis, supra, at 8:6, p. 724 ("the risk-utility test appears to have become America's preferred test for design defectiveness"); A. Twerski & J. Henderson, "Manufacturers' Liability for Defective Product Designs: The Triumph of Risk-Utility," 74 Brook. L.Rev. 1061, 1067 (2009) ("virtually every major torts scholar who ha[s] looked carefully at the issue of design defect over the past several decades ha[s] embraced risk-utility balancing").
Under the risk-utility test set forth in the Restatement (Third), 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 by the seller ... and the omission of the alternative design renders the product not reasonably safe...." Restatement (Third), supra, at § 2(b), p. 14. To guide its analysis, the Restatement (Third) provides the jury with a number of factors to weigh in determining whether, in light of these factors, adopting a safer design was possible without greatly increasing the product's costs or risks or greatly diminishing its usefulness. See id., at § 2, comment (f), p. 23. These factors include (1) the likelihood and magnitude of foreseeable risks of harm posed by the product's design, (2) the instructions and warnings given with the product, (3) consumer expectations about the product and its usage, (4) the safety risks and benefits of alternative designs, and (5) the feasibility of adopting an alternative design, including effects on the product's cost, functionality, longevity and appearance. See id. Because the relevance and importance of each factor will vary in each case depending on the nature of the evidence, the plaintiff is not required to present evidence regarding every factor to establish his case. See id. If the jury determines that the manufacturer
Notably, unlike the ordinary consumer expectations test from § 402A of the Restatement (Second) of Torts, the risk-utility test does not treat consumer expectations as dispositive but as one factor among many for the jury to weigh. See Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. at 213 and n. 10, 694 A.2d 1319. In making consumer expectations a nondispositive factor, the risk-utility test avoids many of the bars to liability associated with the ordinary consumer expectations test — especially those relating to open and obvious dangers and injuries to foreseeable but unintended users and bystanders. See, e.g., Restatement (Third), supra, at § 2, comment (g), pp. 27-28. Thus, a jury may still find a manufacturer liable for obvious product dangers if it finds that the risks posed by a product's design could be mitigated by adopting a reasonable alternative. See 1 D. Owen & M. Davis, supra, at § 8:10, pp. 739-41; see also Restatement (Third), supra, at § 2, comment (d), p. 20.
Moreover, as I will discuss, the Restatement (Third) does not require expert testimony to establish proof of a reasonable alternative design and recognizes that proof of an alternative design is unnecessary in some limited circumstances. See Restatement (Third), supra, at § 2, comment (f), pp. 23-24.
The Restatement (Third) standard is consistent with modern design defect jurisprudence, which recognizes that design defect claims are best decided under a risk-utility standard using proof of a reasonable alternative design, subject to appropriate exceptions.
The need for proof of an alternative design to establish defectiveness in a design case arises from the unique considerations presented by these types of claims. In any product defect case, a jury needs an objective basis against which to compare the product at issue to determine whether the product was defective. See, e.g., T. Jankowski, supra, 36 S. Tex. L.Rev. at 292. In manufacturing defect cases, the objective basis for comparison is inherent in the nature of the claim: the plaintiff alleges that the individual unit he received was not manufactured according to its intended design and that this deviation caused harm. See 1 D. Owen & M. Davis, supra, at § 7:1, pp. 651-52. To determine whether the unit at issue was in fact defective, a jury need only compare the plaintiff's unit against the intended design to determine whether the two are different.
A design defect case lacks a similar inherent objective basis for comparison. In cases involving design defect claims, the plaintiff's challenge does not concern the individual unit he purchased but the product's specifications. See id., at § 8:1, p. 708. In other words, a design defect claim alleges that, although a product may have been manufactured properly according to its design, the intended design chosen by the manufacturer was not reasonably safe. See id. ("unlike a manufacturing defect claim, which implicates merely a single product unit, a design defect claim challenges the integrity of the entire product line and so pierces to the very core of the manufacturer's enterprise"). Any judgment that a product design is defective, therefore, "condemns the entire product line" and not just the unit that the plaintiff purchased. Id. Because a design claim
The lack of an inherent objective basis for comparison in design cases has made formulating a proper standard for design defect claims a difficult task for courts. See, e.g., 1 D. Owen & M. Davis, supra, at § 8:1, p. 702 ("[e]lusive as an elf, the true meaning of `design defect' largely escaped capture by court or commentator until quite recently, and the search therefor has led inexorably to consternation and confusion"); see also 3A American Law of Products Liability (3d Ed.2007) § 28:5, p. 15 (noting that courts have struggled with standard in design defect cases because such cases do not lend themselves to "readily ascertainable" objective standard).
Following the adoption of § 402A of the Restatement (Second) of Torts, courts attempted to apply its consumer expectations standards to design defect claims. See 1 D. Owen & M. Davis, supra, at § 8:3, pp. 713-14. This entails asking a jury whether the product's design met the expectations of the product's ordinary consumers. See 2 Restatement (Second), Torts § 402A, comment (i), p. 352 (1965). If the product falls short of those expectations, it may be deemed defective. See id. The consumer expectations test was created, however, with manufacturing defects in mind. A. Twerski & J. Henderson, supra, 74 Brook. L.Rev. at 1063. For example, a product unit that was made differently from its intended design because of a mistake in the manufacturing process can be understood to disappoint the expectations of its consumers. See id., at 1064, 1067. With respect to manufacturing claims, the intended or expected design of the product provides an objective basis for determining the expectations of consumers. 1 D. Owen & M. Davis, supra, at § 7:2, pp. 653-54.
As the majority observes in its opinion, however, the consumer expectations test proved unsuitable for resolving many types of design defect claims because that standard was too vague to supply an objective basis for assessing product designs. See id., at § 5:16, p. 448; id., at § 8:5, pp. 720-21; see also A. Twerski & J. Henderson, supra, 74 Brook. L.Rev. at 1067 (explaining that consumer expectations test has been widely rejected in design cases "as unworkable and unwise"). Consumers often have little or no knowledge about how safe a product design should be and whether it could be made safer. 1 D. Owen & M. Davis, supra, at § 5:16, p. 448 ("consumers often have no meaningful idea how safely the product really ought to perform in various situations"). This is especially true for products with complex designs and those that fail in complex ways. See, e.g., Pruitt v. General Motors Corp., 72 Cal.App.4th 1480, 1483, 86 Cal.Rptr.2d 4 (1999) ("[t]he deployment of an air bag is, quite fortunately, not part of the everyday experience of the consuming public" [internal quotation marks omitted]); R. Dickerson, "Products Liability: How Good Does a Product Have To Be?," 42 Ind. L.J. 301, 307 (1967) ("What, for instance, should the law do about tractors that overturn, surgical implants that break, and rear-engined automobiles that tend to swerve at high speeds?"). Similar problems arise with new products. See R. Dickerson, supra, at 307 ("[t]he most troublesome situations are those in which consumer attitudes have not sufficiently crystallized to define an expected standard of performance"). Moreover,
The inherent limitations of the ordinary consumer expectations test have led courts and commentators to search for a different standard for design defect cases. Many courts have abandoned the consumer expectations test entirely for design defect claims, whereas some courts have restricted it, as the majority does today, to a small category of cases in which the existence of a design defect is more obvious.
As more and more jurisdictions have embraced the risk-utility test in the decades after the adoption of § 402A, a consensus has emerged that design defect claims are best resolved by using risk-utility balancing to compare the manufacturer's chosen design against safer alternatives to determine whether it was feasible for the manufacturer to have created a safer product. See, e.g., A. Twerski & J. Henderson, supra, 74 Brook. L.Rev. at 1094 ("[r]easonable alternative design is the answer to the comparative balancing process"); see also 1 D. Owen & M. Davis, supra, at § 8:10, pp. 740-41 ("[a]s modern products liability developed after the promulgation of... § 402A [of the Restatement (Second) of Torts], courts and commentators alike increasingly recognized the logical and practical necessity in most types of design defect cases that plaintiffs prove that their harm would have been prevented if the manufacturer had adopted some alternative design"); annot., "Burden of Proving Feasibility of Alternative Safe Design in Product Liability Action Based on Defective Design," 78 A.L.R.4th 154, 157 (1990) ("The reasonableness of choosing from among various alternative product designs and adopting the safest one if it is feasible is not only
This approach of comparing the merits of a product's design against possible alternatives recognizes that a jury cannot meaningfully assess whether a product design is defective without knowing what design alternatives are available, and the risks, benefits, and costs associated with adopting an alternative design. As one commentator has explained: "At the center of a rational process for evaluating design ... decisions is the requirement of a reasonable alternative proposed by the claimant. This requirement is both eminently fair and necessary. If manufacturer decisions based on complex tradeoffs are being challenged as wrong, it is necessary to understand the alternative decision proposed [that] is being advanced as right." (Footnote omitted; internal quotation marks omitted.) T. Jankowski, supra, 36 S. Tex. L.Rev. at 292. Notions of design safety are not absolute, and no product design can ever be entirely accident proof, and, thus, the defectiveness of a manufacturer's chosen design depends largely on whether it could have been made safer by the adoption of some alternative design feature. See D. Owen, "Defectiveness Restated: Exploding the `Strict' Products Liability Myth," 1996 U. Ill. L.Rev. 743, 754-55. After all, it is generally not unreasonable for a manufacturer to market a product with adequate warnings that serves a useful purpose and cannot feasibly be made any safer. See 1 D. Owen & M. Davis, supra, at § 8:10, p. 741 ("Without affirmative proof of a feasible design alternative, a plaintiff usually cannot establish that a product's design is defective. Put otherwise, there typically is nothing wrong with a product that simply possesses inherent dangers that cannot feasibly be designed away."); J. Phillips, "The Standard for Determining Defectiveness in Products Liability," 46 U. Cin. L.Rev. 101, 104 n. 18 (1977) ("a manufacturer's product can hardly be faulted if safer alternatives are not feasible" [internal quotation marks omitted]). Moreover, given the significant consequences at stake when a design defect claim is asserted — the condemnation of an entire line of products — it is only fair that some safer alternative be proposed before allowing a jury to declare a product design defective. See 1 D. Owen & M. Davis, supra, at § 8:10, p. 741. When, however, it is established that the manufacturer could reasonably have adopted a safer design, it is fair to hold a manufacturer responsible for failing to adopt it. Cf. id., at § 8:12, p. 754.
In creating the modified consumer expectations standard, Potter replaced our reliance on the ordinary consumer expectations standard from comment (i) to § 402A of the Restatement (Second) of Torts with a similarly problematic standard. Just as with the consumer expectations test, Potter's modified standard also fails to provide jurors with an objective basis for judging a product's design. Potter created the modified consumer expectations standard by incorporating risk-utility factors into the ordinary consumer expectations analysis, but without any requirement
Standards relying on some form of risk-utility balancing without an accompanying requirement of a reasonable alternative design have proven problematic, both in theory and in practice. These standards are not truly risk-utility standards. The risk-utility test and the reasonable alternative design requirement go hand in hand because a proposed alternative design is necessary to provide an objective basis for comparison against the manufacturer's chosen design. The risk-utility test itself does not supply the basis for comparison; rather, it provides only the considerations that guide the comparison. As one commentator has succinctly explained, "one simply cannot talk meaningfully about a risk-benefit defect in a product design until and unless one has identified some design alternative (including any design omission) that can serve as the basis for a risk-benefit analysis." G. Schwartz, "Foreword: Understanding Products Liability," 67 Cal. L.Rev. 435, 468 (1979). Other commentators agree. See, e.g., 1 D. Owen & M. Davis, supra, at § 8:10, p. 739 ("cost-benefit analysis of an alternative design lies at the heart of design defectiveness"); T. Jankowski, supra, 36 S. Tex. L.Rev. at 292 (explaining that reasonable alternative design requirement "is a sine qua non of the risk-utility process" [emphasis omitted]); T. Jankowski, supra, at 326 ("the gravitational pull in design defect cases has been toward the risk-utility balance and its concomitant, the reasonable alternative design"); A. Twerski & J. Henderson, supra, at 74 Brook. L.Rev. 1094 ("[w]hen one does risk-utility balancing one must judge the product on trial and compare it with some hypothetical design that could have been adopted").
The risk-utility test, which traces its roots to the famed Carroll Towing decision; United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir.1947); is predicated entirely on the notion that some alternative measure could have been taken to avoid the plaintiff's harm, and the test was developed as a tool for comparing the allegedly defectively designed product to its alternatives. See, e.g., T. Jankowski, supra, at 36 S. Tex. L.Rev. 319 ("[t]he key observation to be made is that the risk-utility test, in order to evaluate the appropriateness of the [design] at issue ... requires some standard ... for comparison"); A. Twerski & J. Henderson, supra, 74 Brook. L.Rev. at 1094 ("When one does risk-utility balancing one must judge the product on trial and compare it with some hypothetical design that could have been adopted. Reasonable alternative design is the answer to the comparative balancing process; it is not a factor in the equation as to whether the product was reasonably designed.").
A risk-utility analysis without a reasonable alternative design lacks an objective
Perhaps because of these theoretical shortcomings, jurisdictions that purport to reject a reasonable alternative design requirement nevertheless appear to require this proof as a practical matter. See, e.g., A. Twerski & J. Henderson, supra, 74 Brook. L.Rev. at 1094-95. For example, commentators have noted that, despite Potter's rejection of a requirement that the plaintiff establish a reasonable alternative design, courts applying the standard established in Potter have required this proof in practice. See id., at 1068, 1102. In researching product liability cases brought under Connecticut law, these commentators discovered that, at least as of 2009, there were no reported cases involving traditional design defect claims since Potter that have been submitted to a jury without proof of a reasonable alternative design. See id. Ironically, even the plaintiff in Potter had presented extensive evidence of design alternatives. See Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. at 204-206, 694 A.2d 1319. So did the plaintiff, Barbara A. Izzarelli, in the present case.
Courts that have rejected a reasonable alternative design requirement typically do
The Restatement (Third) resolves these concerns, however. First, with respect to the concerns about requiring expert testimony, the comments to the Restatement (Third) explain that expert testimony is not required to meet the alternative design requirement in every case. Restatement (Third), supra, at § 2, comment (f), p. 23. The Restatement (Third) does not require plaintiffs to propose or build an entire new prototype of the product — the plaintiff need only show that the manufacturer could reasonably have designed a safer alternative. Id., at p. 24. In many instances, a plaintiff can accomplish this without expert testimony. See id., at p. 23. For example, no expert testimony is needed when the plaintiff can show that competing products on the market would be safer or when the availability of a safer design is obvious to a layperson.
Second, the Restatement (Third) also expressly recognizes several exceptions to its alternative design requirement. Although, as I discussed previously, courts are justifiably hesitant to impose liability on manufacturers when no safer alternative is available, the Restatement (Third) recognizes that there are circumstances when some consideration other than a design alternative provides a sufficient and fair basis for imposing liability. In each of these instances, a test other than risk-utility balancing is used to determine liability.
First, no such evidence is needed if the product design violates a statute or a regulation. See id., at § 4(a), p. 120. In these cases, proof that the design violates existing law alone is a sufficient consideration to impose liability because manufacturers should not sell products that legislatures or regulatory authorities have decided to ban. See id.
Second, a plaintiff need not proffer alternative design evidence when the product design at issue is manifestly unreasonable. See id., at § 2, comment (e), pp. 21-22. The Restatement (Third) acknowledges that, in rare and extreme cases, a product design may be so obviously unacceptable that a manufacturer can fairly be held liable for harm even if no safer alternative is feasible. Id. In these limited instances, a jury may "conclude that liability should attach without proof of a reasonable alternative design" when "the
Finally, the Restatement (Third) also does not require proof of design alternatives in res ipsa-like cases, in which the very circumstances of a product's failure provide strong evidence that it was defective; for these types of cases, the Restatement (Third) does not require direct evidence of a specific defect. See id., at § 3, p. 111. Instead, it relies on the malfunction theory, which allows a jury to infer the existence of some product defect from the nature of the product's failure, together with evidence showing that its failure was not caused by something other than a defect. See id., at § 3, comment (b), p. 112. Because a plaintiff need not identify a specific defect in the product, no alternative design evidence is needed.
These exceptions address each of Potter's stated concerns about requiring alternative design evidence. Notably, the reporters' note to the Restatement (Third) expressly compares Potter's concerns about the reasonable alternative design requirement with the exceptions adopted in the Restatement (Third): "The Connecticut Supreme Court's analysis in Potter is, in actuality, perfectly consistent with this Restatement," and it is recommended that, "when the issue is next before [that] court, [it] may find it easier to accept the Restatement as consistent with its position as articulated in Potter. Whatever ambiguities in the earlier draft may have misled the court in this regard, those ambiguities have since been eliminated." Restatement (Third), supra, at § 2, reporters' note to comment (d), pp. 72-73.
There are additional considerations that favor adoption of the Restatement (Third)
The Restatement (Third)'s functional approach to design defect cases provides a number of benefits. First, by defining its design defect standard in terms of the unique considerations involved in design defect cases, rather than by resorting to traditional doctrinal liability theories, its risk-utility standard blends beneficial aspects of strict liability and negligence theories without their accompanying drawbacks. Second, relying on a single, unified standard for design defect claims improves clarity by avoiding the confusion and risk of inconsistent verdicts that could result from submitting a claim to a jury under multiple tests and theories (e.g., under the ordinary consumer expectations test, the modified test, and a negligent design theory). Third, adopting a unified standard is consistent with our Product Liability Act, General Statutes § 52-572m et seq., which was intended to simplify pleadings and product liability claims under a single cause of action. I now address each consideration in greater detail.
Consistent with the modern approach to design defect claims, the Restatement (Third) recognizes that the risk-utility test is neither a strict liability nor a negligence standard, but reflects a blend of the two, and thus displaces those theories in design defect cases. For example, it resembles a negligence balancing standard inasmuch as it requires a jury to balance foreseeable risks of harm against the costs of adopting safer, alternative measures. See 1 D. Owen & M. Davis, supra, at § 5:36, p. 501 (noting that risk-utility test is "based on principles of foreseeability and balance that underlie the law of negligence"). At the same time, the risk-utility test embraces strict liability principles because a manufacturer cannot defend itself on the ground that it used reasonable care in selecting its chosen design or that its design is consistent with others used in the industry; as long as the plaintiff demonstrates
Some courts, including this court in Potter, have claimed that the introduction of risk-utility factors into design defect jurisprudence should not be construed as a departure from strict liability principles, and that the focus of the jury's inquiry must remain on the product, not on the manufacturer's conduct. See, e.g., Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. at 221-22, 694 A.2d 1319. This is an artificial distinction. See 1 D. Owen & M. Davis, supra, at § 5:29, p. 480 (noting that, with respect to design defect cases, there is no practical distinction between strict liability and negligence tests, although "there remains a dwindling, yet stubborn, contingent of courts that cling tenaciously to the view that the doctrines of negligence and strict liability in tort are and must be kept conceptually distinct"). One court explained the fiction as follows: "Although many courts have insisted that the risk-utility tests they are applying are not negligence tests because their focus is on the product rather than the manufacturer's conduct ... the distinction on closer examination appears to be nothing more than semantic. As a common-sense matter, [under the risk-utility test] the jury weighs competing factors presented in evidence and reaches a conclusion about the judgment or decision (i.e., conduct) of the manufacturer. The underlying negligence calculus is inescapable." (Citation omitted; emphasis in original.) Prentis v. Yale Mfg. Co., 421 Mich. 670, 687-88, 365 N.W.2d 176 (1984); see also S. Birnbaum, "Unmasking the Test for Design Defect: From Negligence [to Warranty] to Strict Liability to Negligence," 33 Vand. L.Rev. 593, 610 (1980) ("When a jury decides that the risk of harm outweighs the utility of a particular design [such that the product is not as safe as it should be], it is saying that in choosing the particular design and cost trade-offs, the manufacturer exposed the consumer to [a] greater risk of danger than [it] should have. Conceptually and analytically, this approach bespeaks negligence.").
Because the risk-utility analysis resembles a blend of both strict liability and negligence principles, the Restatement (Third) does not recognize separate negligence and strict liability tests and uses only the risk-utility test as the proper test for all design defect cases. See Restatement (Third), supra, at § 2, comment (n), p. 35. Thus, a jury should not receive both a risk-utility and a negligence instruction; only the risk-utility test may be submitted to a jury in cases involving a design defect claim.
The Restatement (Third)'s functional approach combines beneficial aspects of strict liability and negligence theories without their accompanying drawbacks. For example, under the Restatement (Second)'s strict liability test, the ordinary consumer expectations test, a plaintiff can be barred from recovering if his harm was caused by a danger open and obvious to the ordinary consumer, even if the manufacturer could have prevented the danger with a reasonable design modification. See 1 D. Owen & M. Davis, supra, at § 8:5, pp. 718-19. The Restatement (Third) eliminates this impediment and, instead, makes the obviousness of a product's danger only one factor for a jury to consider, thereby removing a potential bar to recovery while still allowing the jury to consider evidence on this issue. See Restatement (Third), supra, at § 2, comment (g), pp. 27-28.
Moreover, although the Restatement (Third)'s risk-utility test displaces negligence tests in cases involving design defect claims, it does not prevent plaintiffs from introducing evidence relating to fault when that evidence is relevant to the risk-utility calculus. The Restatement (Third) explains: "In connection with a claim under §§ 1 and 2 and related provisions of this Restatement, the evidence that the defendant did or did not conduct adequately reasonable research or testing before marketing the product may be admissible (but is not necessarily required) regardless of whether the claim is based on negligence, strict liability, or implied warranty of merchantability. Although a defendant is held objectively responsible for having knowledge that a reasonable seller would have had, the fact that the defendant engaged in substantial research and testing may help to support the contention that a risk was not reasonably foreseeable. Conversely, the fact that the defendant engaged in little or no research or testing may, depending on the circumstances, help to support the contention that, had reasonable research or testing been performed, the risk could have been foreseen. Moreover, as long as the requisites in [the risk-utility test] ... are met, the plaintiff may in appropriate instances — for example, in connection with comparative fault or punitive damage claims — show that the defect resulted from reckless, [wilfully] indifferent, or intentionally wrongful conduct of the defendant." Id., at § 2, comment (n), p. 35.
Finally, it is also important to emphasize that the Restatement (Third)'s risk-utility test displaces other, traditional standards of liability only when the plaintiff seeks recovery for harm caused by a design defect existing at the time of sale; the risk-utility test does not apply to design related claims involving the manufacturer's conduct after the sale. See id., at p. 37. Thus, for example, although only the risk-utility test would apply in a case alleging that an airbag design was defective when it was sold to the plaintiff, the risk-utility test would not apply to a separate claim alleging that the manufacturer should have issued a recall of the airbag when it learned that its design was unreasonably causing harm. For that type of claim, the Restatement (Third) acknowledges that negligence could remain an appropriate standard. See id.
This simplified approach of using a single test for all design defect claims also
Mindful of this concern, the Restatement (Third) emphasizes that courts should instruct the jury in a design defect case only on the risk-utility test, regardless of the label a court applies to it. The Restatement (Third) explains that "two or more factually identical [defective design] claims ... should not be submitted to the trier of fact in the same case under different doctrinal labels. Regardless of the doctrinal label attached to a particular claim, design ... claims rest on a risk-utility assessment. To allow two or more factually identical risk-utility claims to go to a jury under different labels, whether `strict liability,' `negligence,' or `implied warranty of merchantability,' would generate confusion and may well result in inconsistent verdicts." Restatement (Third), supra, at § 2, comment (n), pp. 35-36.
Formulating liability tests based on the type of defect alleged rather than trying to frame them within traditional doctrinal categories thus improves the clarity and predictability of product liability law and thereby reduces confusion. See 1 D. Owen & M. Davis, Products Liability (4th Ed. Supp.2015) § 5:38, p. 15; see also Restatement (Third), supra, at § 2, comment (n), pp. 35-36.
Adopting the Restatement (Third) approach would be fully consistent with — and
Although the legislature aggregated existing product liability theories under a single cause of action, it did not provide any substantive elements to decide liability, with the exception of claims based on inadequate warnings, which are not at issue in the present case. See General Statutes § 52-572q (b). Instead, the legislature relied on existing common law to provide those standards and left their further development to the courts. See, e.g., Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. at 229-30, 245-46 n. 34, 694 A.2d 1319 (refining design defect standards after adoption of act). Our current law, under Potter, allows plaintiffs to plead multiple theories of recovery for a single alleged design defect, as long as they do so under the heading of a single "product liability" cause of action. Thus, a plaintiff seeking to recover for a design defect can presently bring a claim premised on many different theories, including for strict liability under the modified consumer expectations test and the ordinary consumer expectations test, and for negligent design under standard principles of negligence. Using multiple tests to address the same essential question sows confusion.
Consistent with the act's purpose of simplification, adopting the Restatement (Third) standard would streamline design defect claims. Using a single standard tailored specifically to design defect claims would do away with the need to plead or prove separate strict liability and negligence theories and avoids the confusing use of multiple theories to address the same underlying issue — whether the manufacturer chose a reasonably safe product design.
I recognize that some other jurisdictions have also considered and rejected the Restatement
In light of the foregoing, I would accept the invitation of the reporters of the Restatement (Third) to reconsider the standard that this court employs in design defect cases and to adopt the approach for resolving design defect claims described in §§ 1, 2 and 4 of the Restatement (Third). Doing so will bring our design defect law in line with current product liability jurisprudence and eliminate our reliance on the now outdated consumer expectations standard from the Restatement (Second), which has proven ill-suited for design defect claims.
Adopting the Restatement (Third) approach will not substantially upend our current design defect law. We have already taken a step toward the Restatement (Third) model by adopting the malfunction theory from § 3 of the Restatement (Third). See Metropolitan Property & Casualty Ins. Co. v. Deere & Co., supra, 302 Conn. at 139-41, 25 A.3d 571. Our adoption of the malfunction theory has already supplanted the ordinary consumer expectations standard in such cases, leaving little reason to retain that standard, especially in light of the limited role that the majority has given to it today. See M. Green, "The Unappreciated Congruity of the Second and Third Torts Restatements on Design Defects," supra, 74 Brook. L.Rev. at 834-35 (explaining that malfunction theory "encompasses the kinds of cases that were the model for [the ordinary consumer expectations test in §] 402A"); J. Henderson & A. Twerski, "The Products Liability Restatement in the Courts: An Initial Assessment," 27 Wm. Mitchell L.Rev. 7, 21 (2000) (discussing malfunction theory and noting that "most of the cases cited by courts supporting a consumer expectations test are of [the res ipsa] genre"); J. Hoffman, "Res Ipsa Loquitur and Indeterminate Product Defects: If They Speak for Themselves, What Are They Saying?," 36 S. Tex. L.Rev. 353, 377-78 (1995) (explaining similarities between malfunction theory and ordinary consumer expectations test); A. Twerski & J. Henderson, supra, at 74 Brook. L.Rev. 1101 (explaining that modern application of ordinary consumer expectations test is typically "confined... to cases that instantiate res ipsa-like product failures").
In addition, Potter's modified consumer expectations test has already introduced risk-utility concepts into our law. See Potter
I would therefore disavow any continued reliance on the ordinary or modified consumer expectations standards and recognize only the risk-utility test from §§ 1, 2 and 4 of the Restatement (Third) as the appropriate test for design defect claims.
Applying the risk-utility test to the present case, the answer to the certified question is simple: comment (i) to § 402A of the Restatement (Second) of Torts should no longer be the law of this state for design defect claims, and the Restatement (Third) does not contain a similar provision. The expectations of consumers, and even consumer awareness of open and obvious dangers, are not dispositive considerations in the risk-utility inquiry. The comments to the Restatement (Third) explain that, "[e]arly in the development of products liability law, courts held that a claim based on design defect could not be sustained if the dangers presented by the product were open and obvious. [The risk-utility test] does not recognize the obviousness of a design-related risk as precluding a finding of defectiveness." Restatement (Third), supra, at § 2, comment (d), p. 20. The comments further explain that the risk-utility test "rejects conformance to consumer expectations as a defense. The mere fact that a risk presented by a product design is open and obvious, or generally known, and that the product thus satisfies expectations, does not prevent a finding that the design is defective." Id., at § 2, comment (g), p. 28. Consumer expectations are, instead, one factor for the jury to consider when weighing the risks and benefits of a product design. Id., at § 2, comment (f), p. 23.
Consequently, I agree with the majority that we should answer the certified question in the negative. Because I cannot join the majority's analysis in support of this conclusion, however, I respectfully concur in the result only.
