Recap: The background and prior post for this multi-part series can be found here.
In 1994, the California Supreme Court took up Soule v. General Motors Corp., 8 Cal.4th 548 (1994), to provide much-needed guidance as to when it is and is not appropriate to allow a jury to decide the design defect issue based on the consumer expectations test (CET). “Much-needed” may be an understatement – trial courts routinely allowed plaintiffs freely to elect what design defect standard the jury would consider, often both CET and the risk-benefit test (RBT), gaining the proverbial two bites at the apple, and the courts of appeal had not prescribed any meaningful limiting theory or principle.
Soule happened roughly to coincide with the launch of the American Law Institute’s Third Restatement of Torts: Products Liability project, which revisited and expanded upon section 402A, the Second Restatement’s landmark formulation of product liability law. The centerpiece of the project was a re-examination of the proper role of consumer expectations in the design defect analysis. The ALI ultimately rejected consumer expectations as a separate test, but maintained it as one of several factors to be balanced in application of the governing risk-benefit standard.
Soule did not go that far, but the Court did explain in detail the very limited role of what it characterized as the “standardless” CET. That test properly applied only where (1) common knowledge, based on common experience with the product, component or design feature, and (2) the circumstances surrounding its alleged failure, allow the ordinary consumer to reach a reliable conclusion about the adequacy of the design based solely on its performance in the accident. Every other case must be decided through risk-benefit balancing.
The Court sought to illustrate the CET’s role, Restatement-style, in footnote three. It explained there that an ordinary consumer could decide that a vehicle which exploded at a stop light, or lost brake or steering function on its way home from the dealership, or rolled over and caught fire in a two-mile-per-hour collision, was obviously defective because, under widely shared and reasonable safety assumptions, it had definitively failed to perform as safely as ordinary consumers would expect. No consideration of the design’s risks and benefits would be necessary (and therefore none would be permitted). Similarly, in rejecting the defense argument that the CET should be entirely abolished, the Court explained, “In particular circumstances, a product’s design may perform so unsafely that the defect is apparent to the common reason, experience, and understanding of its ordinary consumers.”
That description of an appropriate CET case – one where a common product fails miserably under striking circumstances that render it “apparent” that the product is defective – strongly suggests that the CET is the functional product liability equivalent of the res ipsa loquitur doctrine. It should be limited to those rare circumstances where the accident itself, and alone, generates a compelling inference that the design of the product was defective.
At least one court of appeal read the California Supreme Court’s discussion that way. In Pruitt v. General Motors Corp., 72 Cal.App.4th 1480 (1999), the court read Soule (and particularly footnote three) to mean that the CET is not available in a classic design case, but rather is “clearly limited to res ipsa-like cases.” In other words, expert proof of the usual competing design considerations like feasibility, durability, practicality, aesthetics, choice, nature and degree of risk and benefit, are not necessary to evaluate defectiveness when the defect is “apparent,” given common knowledge about the product and the bizarre way it purportedly failed. The court drew further support from commentary by the reporters of the Third Restatement, Professors Henderson and Twerski.
Unfortunately, that kind of clarity, and any semblance of consistency, has proven illusory in the 24 years since Soule. The court of appeal decisions to date have been all over the map, and we will dig into them in Part 3.