During the American Law Institute's debate which produced the Restatement of the Law ( Third ), Torts: Products Liability ,the project gained early support from the Appellate Division of the Superior Court of New Jersey. Then the New Jersey Supreme Court in Lewis v. American Cyanamid was the first to embrace the ALI's newly promulgated standard - that, in the ordinary case, to prove a product defective, plaintiff must show that there was available at the time of distribution a practical and feasible alternative safer design which the manufacturer unreasonably failed to adopt.
The Supreme Court's Model Jury Charge Committee, in advance of the Lewis decision, prepared and approved a new model charge. The Committee was tentative in its formulations. Noting the absence of Supreme Court authority it was reluctant to say that trial courts were free to abandon the constraints of the boiler plate recitation of the six "risk/utility" factors formulated 25 years ago by then ALI Reporter and Vanderbilt Law School Dean John Wade.
The time has come to make that change, to abandon slavish adherence to the Wade formulation that the product's risks must be shown to outweigh its benefits. We should begin to instruct juries in a more specific, more flexible, and product centered way about the factors they may consider in deciding whether the challenged product is not reasonably safe and therefore defective. Our juries should be instructed that they can consider a wide range of factors - including production costs, aesthetics, and any other of the competing considerations which a reasonable, safety-conscious designer should weigh.
Like the Products Liability Restatement, which holds that plaintiff must show practicality and feasibility, the New Jersey Product Liability Act, §3, holds that it is a defense to a product defect claim that "at the time" of distribution there "was not a practical and technically feasible alterative design that would have prevented the harm..."
The Products Liability Restatement, in the official comments, points out that the alternative need not have been available on the market, and that plaintiff need not produce a prototype. It is the availability of a realistic choice to the designer that is decisive. As the Restatement points out, it is enough for the plaintiff to show that a reasonable safer alternative design "reasonably could have been available" at the time of sale or distribution. The key comparison is between the safety gains which the alternative design promises and the increased costs it would bring - in productivity, price, etc. Safety gains unreasonably rejected are the basis for manufacturer liability.
Our jury charge should make clear that the plaintiff need only show a practical and technically feasible alternative - and that the absence of such a device on the market at the time of distribution is not a defense. To establish the state of the art defense the defendant should be obligated to demonstrate that either it or others in its industry actually made reasonable but unsuccessful efforts to address the issue via research, testing, and other product development measures; or that pursuit of such an avenue of safety advancement was a chimera.
Finally, in such a negligence-oriented product liability regime, what instructions should the court give to the jury on the weight to be given safety reduction as compared to other factors such as costs and aesthetics? The current charge (§5.34B 2) has instructed juries that "a product may not be considered reasonably safe unless the risks have been reduced to the greatest extent possible consistent with the product's continued utility."
The recently approved model charge is silent on that issue. In Lewis v. American Cyanamid the Supreme Court has spoken of the duty of the seller to "minimize or eliminate the risk of harm". Should juries be instructed in such terms, or should they be advised that the duty of the designer/manufacturer is to achieve a reasonable balance of utility, risk, cost, and aesthetics? It is my own view that the thumb should be placed on the scales for safety, out of recognition that the objective of reducing the social cost of injuries is an area in which reliance on market mechanisms has often disappointed.
George Conk is Certified as a Civil Trial Attorney by the Supreme Court of New Jersey.
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