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JUMPKING, INC. 719 N.W.2d 540 (2006) LEGAL ANALYSIS: You can also make the two bolded sections above about on how limited the exception actually is as two more rules of law. The issue of alternative design and inherently dangerous products is clearly portrayed. At present, questions related to "design defects" and the determination of when a product is defective, because of the nature of its design, appear to be the most agitated and controversial issues before the courts in the field of products liability. In observing the struggle of courts and commentators to define the contours of actionable design defects Professor Twerski noted: "It may now be true that defect, like obscenity in Justice Stewart's definition, will be discovered by sense impression. Unfortunately 'I know it when I see it' will not suffice as a judicial standard for products liability." Twerski, From defect to cause to comparative fault -- Rethinking some product liability concepts, 60 Marq L R 297, 304-305 (1977) (referring to Justice Stewart's concurrence regarding the definition of "obscenity" in Jacobellis v Ohio, 378 U.S. 184, 197; 84 S Ct 1676; 12 L Ed 2d 793 [1964]). Most of the literature on products liability of the past decade has focused on establishing standards for design defect. See Birnbaum, fn 12 supra; Epstein, Products liability: The search for the middle ground, 56 NC L R 643 (1978); Henderson, Judicial review of manufacturers' conscious design choices: The limits of adjudication, 73 Colum L R 1531 (1973); Henderson, Expanding the negligence concept: Retreat from the rule of law, 51 Ind L J 467 (1976); Henderson, Manufacturers' liability for defective product design: A proposed statutory reform, 56 NC L R 625 (1978); Henderson, Renewed judicial controversy over defective product design: Toward the preservation of an emerging consensus, 63 Minn L R 773 (1979); Henderson, Process constraints in tort, 67 Cornell L R 901 (1982); Hoenig, Product designs and strict tort liability: Is there a better approach?, 8 SW L R 109 (1976); Keeton, Products liability -- Design hazards and the meaning of defect, 10 Cumb L R 293 (1979); Phillips, The standard for determining defectiveness in products liability, 46 Cin L R 101 (1977); Schwartz, Foreward: Understanding products liability, 67 Cal L R 435 (1979); Twerski, Seizing the middle ground between rules and standards in design defect litigation: Advancing directed verdict practice in the law of torts, 57 NYU L R 521 (1982); Twerski, From risk-utility to consumer expectations: Enhancing the role of judicial screening in product liability litigation, 11 Hofstra L R 861 (1983); Twerski, Weinstein, Donaher & Piehler, The use and abuse of warnings in products liability -- Design defect comes of age, 61 Cornell L R 495 (1976); Wade, fn 7 supra. A number of appellate courts, aware that they are engaged in the conscious task of molding the law of products liability, have become concerned that they are not differentiating with sufficient clarity between various theories of recovery in design defect cases. In response, they have sought to devise significant and well-articulated distinctions. See, e.g., Barker v Lull Engineering Co, Inc, 20 Cal 3d 413; 143 Cal Rptr 225; 573 P2d 443 (1978), in which the California Supreme Court attempted to distinguish strict liability from negligence in its reexamination of the concept of defect in design defect cases. At least one commentator has observed that "in so doing, [the California Supreme Court] has further confused the delineation between strict liability and negligence concepts." Birnbaum, fn 12 supra, p 601. At the same time, other courts have become concerned that the differentiation is too great, and have attempted to devise means of keeping the broad scope of liability in check. See, e.g., Brady v Melody Homes, 121 Ariz App 253; 589 P2d 896 (1978). The result has been several cases in which the standard for liability in the design area has been very carefully examined by courts and often vigorously debated by the judges themselves. A survey of the important recent cases in neighboring jurisdictions suggests something of the creative ferment underlying what has been described as the "rich tapestry" of the developing common law of products liability. See Twerski & Weinstein, A critique of the uniform product liability law -- A rush to judgment, fn 13 supra, p 223, for discussion of these cases. See also the debate among members of the New Jersey Supreme Court in Suter v San Angelo Foundry & Machine Co, 81 NJ 150; 406 A2d 140 (1979). The approaches for determination of the meaning of "defect" in design cases fall into four general categories. The first, usually associated with Dean Wade, employs a negligence risk-utility analysis, but focuses upon whether the manufacturer would be judged negligent if it had known of the product's dangerous condition at the time it was marketed. This has been characterized as a risk-utility test with imputed knowledge of all risks "knowable" at the time of manufacture or sale. See Wade, On the nature of strict tort liability for products, 44 Miss L J 825, 834-835 (1973). The second, associated with Dean Keeton, compares the risk and utility of the product at the time of trial. See Keeton, Manufacturer's liability: The meaning of "defect" in the manufacture and design of products, 20 Syracuse L R 559, 569-571 (1969). This approach imputes knowledge at the time of trial, even if the risk was unknowable at the time of manufacture or sale. Thus, the disagreement between Wade and Keeton is over the time factor. Keeton would hold a manufacturer liable when the risks of use of its product exceed its utility, based upon information available at the time of trial, even if those risks were unknowable at the time of manufacture or sale. Wade would not. The third focuses on consumer expectations about the product. See 2 Restatement Torts, 2d, § 402A, Comment i. This test is said to have its origin in contract and warranty principles and has been severely criticized because of the haphazard subjectivity involved in its application. See Birnbaum, fn 12 supra, pp 611-618. But see Twerski, From risk-utility to consumer expectations, fn 14 supra. The fourth combines the risk-utility and consumer-expectation tests. A number of courts have embraced a combined standard. See, e.g., Caterpillar Tractor Co v Beck, 593 P2d 871, 885 (Alas, 1979); Barker v Lull Engineering Co, 20 Cal 3d 413, 432; 143 Cal Rptr 225; 573 P2d 443 (1978); Suter v San Angelo Foundry & Machine Co, 81 NJ 150, 170-171; 406 A2d 140 (1979). While courts have included many other individual variations in their formulations, [These include: placing the burden of proof on defendant once plaintiff has made a prima facie case, see, e.g., Barker, supra, and imputing knowledge of the danger to the manufacturer, see, e.g., Suter, fn 21 supra, p 172.] the overwhelming consensus among courts deciding defective design cases is in the use of some form of risk-utility analysis, either as an exclusive or alternative ground of liability. See, e.g., Caterpillar Tractor Co, fn 21 supra (alternative ground); Barker, supra (alternative ground); Suter, fn 21 supra (alternative ground); Micallef v Miehle Co, 39 NY2d 376; 384 NYS2d 115; 348 NE2d 571 (1976) (exclusive ground); Wilson v Piper Aircraft Corp, 282 Or 61; 577 P2d 1322 (1978) (exclusive ground). It should be noted that these cases were decided in jurisdictions that have adopted the doctrine of strict liability in tort which this Court has never expressly adopted. See fn 9. However, this distinction is not fatal to our analysis. See fn 25 and accompanying text. Risk-utility analysis in this context always involves assessment of the decisions made by manufacturers with respect to the design of their products. "The law purports to stand as a watchdog to ensure that product design decisions made by manufacturers do not expose product users to unreasonable risks of injury. Thus, in a design defect case, the issue is whether the manufacturer properly weighed the alternatives and evaluated the trade-offs and thereby developed a reasonably safe product; the focus is unmistakably on the quality of the decision and whether the decision conforms to socially acceptable standards." Twerski, Weinstein, Donaher & Piehler, Shifting perspectives in products liability: From quality to process standards, 55 NYU L R 347, 359 (1980). Evaluation of trade-offs may take into account factors such as design or performance requirements, the effects of those requirements on reducing hazards, the utility and cost of the product, and technological capabilities. Id., p 357. The risk-utility balancing test is merely a detailed version of Judge Learned Hand's negligence calculus. See United States v Carroll Towing Co, 159 F2d 169, 173 (CA 2, 1947). As Dean Prosser has pointed out, the liability of the manufacturer rests "upon a departure from proper standards of care, so that the tort is essentially a matter of negligence." Prosser, Torts (4th ed), § 96, p 644. This discussion took place in the context of strict liability in tort, which, contrary to the assertions of Justice Levin in his dissent, this Court has never adopted. See post, p 697 (Levin, J., dissenting), see also fn 9. However, as Prosser emphasized in the quoted passage, even in jurisdictions that have adopted the strict liability doctrine, the proper test for determining a manufacturer's liability for defective design is negligence. 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, see, e.g., Barker v Lull Engineering Co, Inc, 20 Cal 3d 413, 418; 143 Cal Rptr 225; 573 P2d 443 (1978), the distinction on closer examination appears to be nothing more than semantic. As a common-sense matter, 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. As noted by Professor Birnbaum: "When a jury decides that the risk of harm outweighs the utility of a particular design (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 greater risk of danger than he should have. Conceptually and analytically, this approach bespeaks negligence." Birnbaum, Unmasking the test for design defect: From negligence [to warranty] to strict liability to negligence, 33 Van L R 593, 610 (1980) (quoting Barker v Lull Engineering, supra, p 432) (emphasis added). The competing factors to be weighed under a risk-utility balancing test invite the trier of fact to consider the alternatives and risks faced by the manufacturer and to determine whether in light of these the manufacturer exercised reasonable care in making the design choices it made. Instructing a jury that weighing factors concerning conduct and judgment must yield a conclusion that does not describe conduct is confusing at best. in an action against the manufacturer of a product based upon an alleged defect in its design, "breach of implied warranty and negligence involve identical evidence and require proof of exactly the same elements." A manufacturer has a duty to design its product so as to eliminate any unreasonable risk of foreseeable injury. For the lack of reasonable care in the face of such duty, the manufacturer may be answerable in a negligence action. When proceeding under a theory of implied warranty, a design defect is established by proof that the product is not reasonably safe for the uses intended, anticipated, or reasonably foreseeable. Dooms v Stewart Bolling & Co, 68 Mich App 5, 14; 241 NW2d 738 (1976), lv den 397 Mich 862 (1976). For the sale of a product defective in such respect, the seller may be answerable for breach of an implied warranty. Thus, when the issue is liability of a manufacturer who was also the seller, it is inconceivable that a jury could determine that the manufacturer had not breached its duty of reasonable care and at the same time find that the product was not reasonably safe for its reasonably foreseeable uses. The question in either case turns on reasonable care and reasonable safety, and as pointed out by Dean Prosser, the liability of the manufacturer rests "upon a departure from proper standards of care so that the tort is essentially a matter of negligence." Prosser, Torts (4th ed), § 96, p 644. Therapeutic Boarding & Residential Treatment for Troubled Teens - Boarding School, Defiant Teens New Hampshire Private Investigator John M. Healy Garden Decor - Wind Chimes - Bird Houses - Water Fountains GotBiz - The Premier Web TV Network for Entrepreneurs Grow Your Own! 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