Monday, September 6, 2010
South Carolina Adopts the Risk-Utility Test as the Exclusive Test in Products Liability Design Cases
As you probably know, one of the most debated questions in product liabiity law is the proper standard to use to determine if a product is defective in its design. The Restatement 2d originally suggested a consumer expectations test while many jurisdictions adopted a risk-utility analysis. Many -probably most, at least until recently - jurisdictions recognized both. Then, the Restatement 3d adopted a different view which includes a requirement that the plaintiff show a reasonable alternative design, a new approach that a number of jurisdictions have rejected. About three weeks ago, the Supreme Court of South Carolina had a chance to clarify the state of the law on the subject and adopted the use of a risk utility analysis as the exclusive test to determine design defects. The case is called Branham v. Ford Motor Company and it is available here. For comments on it, go here and here. I don't have a major problem with adopting a risk-utility analysis but I do have a problem with the requirement that the plaintiff show a reasonable alternative design. It is an unecessary requirement, the only purpose of which is to make it more difficult for victims to be able to support their claims and it goes contrary to the goal of encouraging the design of safer products.