Recap: Part 1 (here) discussed the background of the consumer expectations test (CET) and part 2 (here) described the California Supreme Court’s seemingly definitive decision in Soule v. General Motors Corp., 8 Cal.4th 548 (1994) explaining the types of cases where CET can be applied.
Any expectation by legal consumers that Soule’s careful guidance would produce coherence and consistency was overly optimistic. The courts’ conceptual struggles in the wake of Soule are best illustrated by a string of decisions in cases that, like Soule, deal with “crashworthiness” or “enhanced injury.” These cases allege that the vehicle failed to adequately protect the occupant in a crash.
A trio of examples involved airbags, a notoriously misunderstood safety device phased into production in the late 1980s and early 1990s and rapidly evolving ever since. The federal government pushed manufacturers to expedite their development and introduction because they can protect against catastrophic head, chest and neck injuries, especially in high-speed collisions.
Generally, airbag cases would seem to be poor candidates for evaluation under the CET. They are complex systems, tuned to operate in conjunction with other restraint system components, the vehicle’s structural characteristics, and the specific geography of the interior surfaces. They deploy forcefully, in the blink of an eye. Because they can injure out-of-position (e.g., unbelted) occupants and their benefits diminish in lower-speed collisions, they are calibrated to inflate only where the crash forces surpass a defined dynamic threshold algorithm based on sophisticated sensors. Both the inclusion of airbags and their design are classic examples of the difficult design tradeoffs often required of design engineers, the types of risk-benefit analyses which Soule commands be resolved under the risk-benefit test (RBT) rather than the CET.
Nevertheless, the post-Soule airbag cases are all over the spectrum. In Bresnahan v. Chrysler Corp., 32 Cal.App.4th 1559 (1995), the alleged defect was the airbag’s deployment characteristics in conjunction with the slope of the windshield. The airbag’s deployment forced the driver’s elbow into the windshield pillar. The trial judge precluded the CET in limine. In dictum, the appellate court found the CET could be applied, but its analysis reflected neither engineering reality nor Soule’s reasoning.
In rejecting application of the CET, Soule had emphasized the technical complexity and obscurity of the design issue. But Bresnahan decided that experts could educate the jurors about the design issues and they could then apply ordinary expectations. The court observed that airbags were “highly publicized and by now commonplace.” But publicity does not translate into experience and understanding. And airbags were by no means “commonplace” at the time of sale (1988) – they were just being phased into new car fleets. That, not the time of the appeal (or trial), is the moment of significance in evaluating the product’s design.
The court also claimed that arm injuries were the type of injuries airbags were meant to prevent. But it was well understood that they were designed to minimize head, neck and chest injuries, and occasional upper extremity injuries during deployment were an inevitable, acceptable public health tradeoff.
Under Soule, such tradeoffs require the jury to resolve design defect issues by weighing evidence of risks and benefits rather than applying subjective expectations. Bresnahan, however, expressly rejected that argument. It equivocated about the proper role of risk-benefit evidence, suggesting both that (1) risks and benefits could be considered under the CET, and (2) they could not be presented as a “defense” or a “counterweight” under the CET.
A very different – and more appropriate – view was expressed in Pruitt v. General Motors Corp., 72 Cal.App.4th 1480 (1999), involving a low-speed deployment causing a jaw injury. The court affirmed the denial of a CET instruction, because airbag deployments are not within the “everyday experience” of consumers and their design included “tradeoffs involving complex technical issues.” Pruitt read Soule to limit the CET to the functional equivalent of a res ipsa loquitur case, and read Bresnahan as “clearly dicta” and inconsistent with Soule.
In McCabe v. American Honda Motor Co., 100 Cal.App.4th 1111 (2002), the airbag did not deploy in a collision and plaintiff consequently sustained facial injuries. Defendant’s expert reconstructed the accident, concluding that the direction and force of the collision fell outside the deployment threshold. Plaintiff testified that it was a forceful frontal collision, and that the owner’s manual said the airbag would inflate in such collisions, but offered no expert testimony. The trial court granted summary judgment, ruling that the CET did not apply.
The court of appeal reversed, finding, enigmatically, that it was for the jury to decide whether the CET applied, because the circumstances of the accident were disputed. The jury itself would determine whether it was able to form minimal safety expectations about airbag performance under the circumstances of the accident.
The court did not explain how the jury could find that the airbag should have deployed under the forces of the accident without expert testimony. Nor did it explain how the legitimacy of consumer expectations could turn on a finding of the precise details of the forces involved in the accident. And it did not explain why the jury should decide how it should go about deciding the defect issue — a question which seems squarely within the court’s bailiwick.
Count McCabe as another decision missing the point of Soule. The Supreme Court had found the CET unsuitable as a matter of law because the design defect theory was technical and complex and the circumstances of the purported failure were complex and disputed. McCabe found the opposite – despite the complexity of the airbag, the jury could determine as a question of fact that the CET applied, because the accident reconstruction was disputed.
It is not possible to reconcile these cases, nor to reconcile McCabe and Bresnahan with Soule.
Next, we explore whether there is similar uncertainty and confusion in enhanced injury cases alleging structural defects in design.