I have to confess that I missed this important development when it happened back at the end of October but I am now finally getting to it, so better late than never, I guess.
In a case called Aubin v. Union Carbide Corp., 177 So.3d 489 (Fl 2015), the Florida Supreme Court rejected the Third Restatement’s formulation of design defects and, specifically, the notion that a product can’t be considered defective unless the plaintiff can show a reasonable alternative design. The Court preferred to retain the approach of Restatement (Second).
In this case, even though the Court had adopted and applied the consumer expectation test in prior cases, the lower court adopted the Third Restatement’s formulation of the risk utility test as the legal standard for a design defect claim. According to this standard, as the Court explained, “the plaintiff must demonstrate that the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.” Alternatively, the plaintiff could try to argue that the product design is “manifestly unreasonable,” which in turn would require the plaintiff to show that “the extremely high degree of danger posed by its use ... so substantially outweighs its negligible social utility that no rational, reasonable person, fully aware of the relevant facts, would choose to use ... the product.”
Citing a number of cases from other jurisdictions that also rejected the Restatement (Third), the Court then went on to reject the Restatement (Third), among other reasons because
(1) By introducing foreseeability of the risk to the manufacturer as part of the calculus for design defect and requiring proof of a “reasonable alternative design,” the Third Restatement reintroduces principles of negligence into strict liability. For this reason, according to the Court, the Third Restatement is inconsistent with the rationale behind the adoption of strict products liability.
(2) Besides shifting the emphasis away from strict liability principles, the Third Restatement's 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 – because the Third Restatement places upon the plaintiff an additional burdensome element of proof, requiring the injured consumer to step into the shoes of a manufacturer and prove that a reasonable alternative design was available to the manufacturer.
(3) The Third Restatement, in some instances, could insulate a manufacturer from all liability for unreasonably dangerous products solely because a reasonable alternative design for that type of product may be unavailable even though “in some instances, a product may be in a defective condition unreasonably dangerous to the user even though no feasible alternative design is available.”
(4) Many states have expressed concerns about, or disapproved of, the Third Restatement, as it pertains to strict products liability.
(5) The requirement of a reasonable alternative design in the Third Restatement has been harshly criticized and has not become the rule in the majority of jurisdictions. A majority of jurisdictions do not require a reasonable alternative design in product liability actions.
(6) The Restatement is not a codification of law or necessarily the consensus on the best policy for courts regarding the proper legal standard for strict liability in products liability cases. In fact, while the Third Restatement was intended to restate the law as decided by state courts and state legislatures, various courts have criticized its discussion of strict products liability, emphasizing that it “goes beyond the law” because “[r]ather than simply taking a photograph of the law of the field,” the Third Restatement attempts to create a framework for strict products liability by urging the adoption of the reasonable alternative design standard and an exclusive risk/utility analysis, notwithstanding that the majority of jurisdictions in this country do not require a reasonable alternative design in strict products liability actions.
(7) The Third Restatement is contrary to Florida’s prior precedent. As explained by the Court, “[t]he important aspect of strict products liability that led to our adoption [of the Restatement (Second) in a precedent case] remains true today: the burden of compensating victims of unreasonably dangerous products [should be] placed on the manufacturers, who are most able to protect against the risk of harm, and not on the consumer injured by the product. Increasing the burden for injured consumers to prove their strict liability claims for unreasonably dangerous products that were placed into the stream of commerce is contrary to the policy reasons behind the adoption of strict liability. . .”