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William P. Aubin v. Union Carbide Corporation, Case No. SC12-2075 (Florida Supreme Court)

In Aubin, the Florida Supreme Court addressed, among other things, the applicable standard in strict product liability cases. The Third District in Aubin applied the risk utility test for design defect cases set forth in the Restatement (Third) of Torts. The Third District’s decision conflicted with the Florida Supreme Court’s decision in West v. Caterpillar Tractor Co. and the Fourth District’s decision in McConnell v. Union Carbide Corp. The Florida Supreme Court ruled that the definition of design defect enunciated inWest, which utilized the consumer expectation test, instead of the risk utility test, best vindicates the purposes of underlying the doctrine of strict liability.

The Florida Supreme Court began by explaining that in West it adopted the consumer expectation test set forth in the Restatement (Second) of Torts. To hold a manufacturer liable on the theory of strict liability in tort, the user must establish the manufacturer’s relationship to the product in question, the defect and unreasonably dangerous condition of the product, and the existence of the proximate causal connection between such condition and the user’s injuries or damages. The court noted that the costs of injuries or damages resulting from defective products should be borne by the makers of the products who put them into the channels of trade, rather than by the injured or damaged persons who are ordinarily powerless to protect themselves. The consumer expectation test considers whether a product is unreasonably dangerous in design because it failed to perform as safely as an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner.

The Florida Supreme Court explained that the Third District later adopted, despite the precedent in West, the risk utility test and its corresponding requirement that there be a reasonable alternative design. The Florida Supreme Court cited to several opinions from the supreme courts of other states setting forth several compelling reasons for rejecting the risk utility test explained in the Restatement (Third) of Torts. For one, the risk utility test focuses on the foreseeability of the risk of harm, including a cost benefit analysis, which blurs the distinction between strict products liability claims and negligence claims. “Rather than focusing on the design of the product, it focuses on the conduct of the manufacturer.” The court additionally noted that the risk utility test imposes a higher burden on consumers to prove a design defect than exists in negligence cases – “the antithesis of adopting strict products liability in the first place.” The original purpose of imposing strict liability for defective and unreasonably dangerous products was to relieve injured consumers from the difficulties of proving negligence on the part of the product’s manufacturers. The court stated, the “important aspect of strict products liability that led to our adoption in West remains true today: the burden of compensating victims of unreasonably dangerous products is placed on the manufacturers, who are most able to protect against the risk of harm, and not on the consumer injured by the product.” The risk utility test and its requirement that a reasonable alternative design exist increases the burden for injured consumers, which is contrary to the public policy set forth inWest. The court noted that while the risk utility test and the establishment of a reasonable alternative design are not requirements for finding strict liability, nothing precludes a plaintiff from proving his or her case by showing an alternative safer design, or a defendant from showing that it could not have made the product any safer.

Therefore, the Florida Supreme Court rejected the risk utility test adopted by the Third District in Aubin and ruled that the consumer expectation test applies to strict liability design defect cases in Florida.

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