Product Liability - Design Defect

Posted Monday, October 30, 2017 by Ed Harper

Washington’s Product Liability Act – RCW 7.72.030 (a): “A product is not reasonably safe as designed if, at the time of manufacture, the likelihood that the product would cause the claimant’s harm or similar harms, and the seriousness of those harms, outweighed the burden on the manufacturer to design a product that would’ve prevented those harms and the adverse effect that on the alternative design that was practical and feasible would have on the usefulness of the product…

(3) In determining whether a product was not reasonably safe under this section the trier of fact shall consider whether the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer. RCW 7.72.030(1) (a)(3) there are two tests for determining whether a product is defective:

1 – the Risk Utility Test

2 – the Consumer Expectation Test.”

The risk utility test requires a showing that the likelihood and seriousness of a harm outweigh the burden on the manufacturer to design a product that would’ve prevented that harm and would not have impaired the products usefulness. The consumer expectation test requires a showing that the product is more dangerous than the ordinary consumer would expect. Higgins v. Intex Rec. Corp. et al., 123 Wn.App 821, 90 9 P.3rd 421 (2004).

In* Higgins v. Intex Rec. Corp*, which was a suit for personal injuries based on product liability, the plaintiffs submitted the question of a snow tube’s safety to the jury. The plaintiffs submitted that the snow tube went too fast, had no means for the rider to control it, and then turned the rider into a fixed backward position.

The jury determined that the tube was not reasonably safe as designed and the case was upheld on appeal utilizing the two tests to determine whether this product was unsafe. Using the risk utility test and facts supporting this view of defectiveness, “speeding backward at 30 mph down a crowded snow covered hill is not safe,… The user cannot watch for others in his or her path. And bystanders cannot always move fast enough to avoid them. There was ample evidence that an alternative design would permit the user to see what is in his or her path and avoid collisions by either bailing out or by using minimal steering.”

The court also reviewed the consumer expectation test “comparing it to another device called a Snow-Boggan which provides a fast ride but not a blind high-speed ride. The jury could then find that a reasonable consumer would expect that the snow sliding product would not put him or her in a backward, high-speed slide.” (Higgins at 830).

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