Back to the Future: Renewing Strict Product Liability in Florida
On October 29, 2015, the Florida Supreme Court decided the most important product liability case in Florida jurisprudence since the landmark decision in West v. Caterpillar Tractor Co. , 336 So. 2d 80 (Fla. 1976). The much anticipated decision in Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015), settled almost 40 years of uncertainty and debate in Florida over the proper test for product design defects, i.e., whether it should be a strict liability consumer expectations test or a negligence-based risk/benefit test. The former originated in the 1964 historic Restatement (Second) Torts §402 A; the latter grew out of spirited objection to that provision. In deciding that consumer expectations are “more closely aligned with the policy reasons behind Florida’s adoption of strict liability in products design cases,”1 the courtreestablished strict liability for product defect design cases in Florida.
Aubin came to the court from the Third District Court of Appeal, which had reversed a plaintiff verdict based in part on the failure of the trial court to apply the risk/benefit test from the new Restatement (Third) Torts: Products Liability (Am. Law Inst. 1997). The case involved an asbestos product manufactured by Union Carbide that had been incorporated into various joint sealing compound and texture spray products. Specifically, the district court held that the new Restatement on Products Liability applied.2 That restatement proposed the abolition of the consumer expectation test, replacing it with a risk/benefit test that required proof of an alternative reasonable design.3 In reversing, the Supreme Court concluded that “the Third Restatement’s new approach is inconsistent with the rationale behind the adoption of strict products liability.”4
Aubin heralds a new day for product design defect cases in Florida,5 but to understand the import of this decision and its implications for the future, it is necessary to review the conceptual underpinnings of the two tests and how Florida product liability jurisprudence developed to this point.
Strict Liability vs. Negligence
Strict liability for product defects grew out of dissatisfaction with warranty and negligence theories of recovery for product injuries. Because of privity requirements, contributory negligence, notice and disclaimer defenses, and difficulties of proof, many seemingly meritorious cases were going without redress. In 1964, the American Law Institute adopted Restatement (Second) of Torts §402A, which proposed that product sellers should be “strictly liable” for injuries from unreasonably dangerous products “even though the seller has exercised all possible care in the preparation and sale of the product.”
Liability under §402A was straightforward. Product sellers were liable for harms caused by any product that is “in a defective condition unreasonably dangerous,” meaning “dangerous to an extent beyond that which would be contemplated by the ordinary consumer….”6 This was not, however, per se strict liability in the traditional sense of that term as in the case of harm resulting from the keeping of dangerous animals or other abnormally dangerous activities in which liability for the resulting harm is automatic. To hold a product seller strictly liable, the plaintiff had to prove both that the product was defective and that the defect caused the plaintiff’s harm.
Section 402A also proposed an affirmative defense for products that were “unavoidably unsafe.” Under comment k to §402A, Restatement Second recognizes that there are some products that science and art cannot make completely safe for ordinary use but that still have utility. For those “unavoidably unsafe” products (prescription drugs, for example), comment k provides a seller will not be liable for marketing “an apparently useful and desirable product, [even though it is] attended with a known but apparently reasonable risk” as long as the manufacturer provides “proper directions and warning.” This was not, however, a free pass. Manufacturers have to test their products for residual risks, adopt safer designs when possible, provide adequate warnings and directions, and only market the potentially unsafe product when the benefits of the product outweighed its risks.
It wasn’t long before strict liability for product defects came under attack by proposals to replace it with a risk/benefit test.7 Proponents advocated that product defects should be evaluated by a negligence-type analysis, balancing the risk of injury against the benefit of the product. In many respects, this stood products liability law on its head. The risk/benefit test took what was an affirmative defense under comment k to §402A for “unavoidably unsafe” products and made it the basis for a liability regime for all products in which products would be presumptively safe unless plaintiffs carried the burden of proving the risks inherent in the product outweighed its benefits. The ensuing debate over the proper test raged on for decades mostly on a case-by-case basis. In Florida, it lasted almost 40 years.
Pre- Aubin Product Liability in Florida
Florida first embraced products liability strict liability in 1976. Although earlier decisions had already effectively adopted those principles, Florida adopted strict liability for product harms in the seminal decision of West v. Caterpillar Tractor Co., Inc., 336 So. 2d 80 (Fla. 1976). West was based on the rationale that in marketing products, manufacturers implicitly represent that their products are safe; that the public has a right to expect that reputable sellers will stand behind their products; and that the burden of injuries should be upon those who market the products, rather than their users. Specifically, West held that to impose liability, the injured party need only prove “the manufacturer’s relationship to the product in question, the defect and unreasonably dangerous condition of the product, and the existence of the proximate causal connection between the condition and the user’s injuries or damages.”8 Echoing the rationale and the justification for §402A, the West court held:
The obligation of the manufacturer must become what in justice it ought to be — an enterprise liability….The cost of injuries or damages, either to persons or property, resulting from defective products, should be borne by the makers of the products who put them into the channels of trade, rather than by the injured or damaged persons who are ordinarily powerless to protect themselves. We therefore hold that a manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.9
Five years later, in Ford Motor Co. v. Hill, 404 So. 2d 1049 (Fla. 1981), the court was squarely faced with the question of whether it should adopt a negligence-based risk/benefit test for product design cases. Hill involved a claim of lack of vehicle crashworthiness due to a design defect. Ford contended design defects involve complex engineering choices that could only be evaluated under a negligence standard that took into account all practical and technical problems of the design, i.e., a risk/benefit type test. The court rejected that argument, holding “the better rule is to apply the strict liability test to all manufactured products without distinction as to whether the defect was caused by the design or the manufacturing.”10
The court also called for a change in the standard jury instructions, “which reflects the holding of the instant case.”11 This would seem to be a fairly straightforward proposition and the minutes of the Standard Jury Instruction Committee reflect that in drafting a new instruction (PL 5), the committee added language expressly describing the consumer expectation test. For some inexplicable reason, the committee went on to resurrect Ford’s argument about a negligence-based risk/benefit test and included it in the instruction because it concluded it was “widely used in other jurisdictions.”12 Unfortunately, there was no guidance for trial courts as to how to apply the two tests or when to give either one of the two different instructions.
In authorizing publication of the new instruction, the court departed from its usual statement concerning the instructions to specifically note the unsettled nature of the law and emphasized that in permitting publication it was “not deciding any questions of law or correctness or applicability of the charge.”13 What followed were years of debate and confusion over what was the proper test for design defect claims with most courts applying at least the consumer expectations test.14
In the wake of West, two cases discussed the use of the risk/benefit test in conjunction with a comment k affirmative defense. First, in Adams v. G.D. Searle & Co. , 576 So. 2d 728 (Fla. 2d DCA 1991), the court addressed the proper application of the risk/benefit defense of comment k and held “that the seller has the burden to establish the application of comment k.”15 While the case involved a strict liability claim for a contraceptive IUD device, there is no principled reason why the decision would not apply under current law to any allegedly unavoidably unsafe product. Logic dictates that if risk/benefit is an affirmative defense, it cannot also be a test of defectiveness. The only way that it could be a test of defect is under Dean Wade’s call for replacement of strict liability with a negligence-based risk/benefit test, but that proposition was specifically rejected in Hill.
Risk/benefit as an affirmative defense was later confirmed in Force v. Ford Motor Co., 879 So. 2d 103 (Fla. 5th DCA 2004). Force involved the alleged failure of a seatbelt restraint system. The plaintiff sought to have his case submitted to the jury under the dual tests contained in the Florida Standard Jury Instructions: both the consumer expectations test and the risk/benefit test. The trial court, instead, instructed the jury on only the risk/benefit test. In reversing, the district court explained:
Under the risk-utility theory a product is defectively designed if the plaintiff proves that the design of the product proximately caused the plaintiff’s injuries and the defendant fails to prove that on balance, the benefits of the design outweigh the risk inherent in the design.16
Thus, in the main, Florida was aligned with strict product liability although on a case-by-case basis controversy over the proper test and how to apply a risk/benefit test continued to be a major issue in many product liability cases.
The New Restatement Third
In 1991, the American Law Institute launched a project to restate products liability law. According to the reporters for the project, the majority of jurisdictions had adopted the risk/benefit test for design defect cases and made one factor of that test — the availability of a reasonable alternative design — an absolute requisite for liability. Based on that claim, the reporters proposed that §402A and its “consumer expectation test” be abolished in favor of their version of the risk/benefit test.
Commentators and other academics quickly contradicted the reporter’s scholarship and reasoning.17 The resulting deliberations were some of the most contentious in the American Law Institute’s history; the proposals passed by extremely close votes and many believed that the core provisions of §2(b) — which were the risk/benefit provisions — were fundamentally flawed.
Before the ink was dry, the new Restatement was in trouble, and it has been largely rejected by court decisions to date. While still only in draft form, the Georgia Supreme Court18 refused to mandate the necessity for proof of an alternative design and the supreme courts of California and Connecticut rejected §2(b).19 The decision of the Connecticut court was stunning, coming just days after final passage of the proposal. In Potter v. Chicago Pneumatic Tool Co., 694 A.2d 1319 (Conn. 1997), the court boldly questioned the scholarship underlining §2(b) and concluded that the reporters were wrong. The court independently reviewed the law and found “that the majority of jurisdictions do not impose upon plaintiffs an absolute requirement to prove a feasible alternative design,” and that such a requirement “imposes an undue burden on plaintiffs that might preclude otherwise valid claims from jury consideration.”20 Potter also rejected another tenet of the reporters’ formulation that the consumer expectation test should not apply in design defect cases. After Potter, the supreme courts of Missouri, Kansas, Oregon, Wisconsin, New Hampshire, Pennsylvania, and the Maryland Court of Appeals all refused to adopt §2(b).21
These decisions are remarkable because they bluntly state the reporters were wrong; the new Restatement “goes beyond the law,” sets the bar too high, and would be a regression in the law that would roll back decades of individual justice and return to an era of defendant protectionism. Those courts noted that under a risk/benefit test, incentives to produce as safe a product as possible would disappear because sellers would only have to design to a standard whereby benefits outweighed risks and, when sued for a defective design or a failure to warn, could take refuge in the opinions of compliant experts and the inherent difficulties plaintiffs would have in proving an alternative design.
Those criticisms did not, however, deter defendants from urging the adoption of Restatement Third and, in 2005, without any discussion, analysis, or even acknowledgment of West or Hill, the Third District Court of Appeal did so in Kohler Co. v. Marcotte, 907 So. 2d 596 (Fla. 3d DCA 2005), followed a few years later by Agrofollajes, S.A. v. E.I. DuPont De Nemours & Co., 48 So. 3d 976 (Fla. 3d DCA 2010). Kohler involved a component part (a gasoline engine) that had been incorporated into a lawn mower. The Third District held that §5 of the new Restatement was applicable, and Kohler as the component part manufacturer was not liable. Agrofollajes involved a plant fungicide. There, the Third District held that §2 of the new Restatement precluded use of the consumer expectation test as a basis for a design defect finding. Those decisions predetermined the district court’s decision in Aubin and set the stage for the Supreme Court’s reconsideration of strict products liability.
Aubin ’s Import
Aubin ’s import cannot be overstated. The court’s rejection of the new Restatement is sweeping. Not only did the court reject the core principles of the new Restatement, but in expressly disapproving Kohler and Agrofollajes, the court made it clear that no part of the new Restatement applies in Florida. Aubin, thus, aligns Florida with the overwhelming majority of jurisdictions considering these questions. This should come as no surprise because Restatement Third was borne out of controversy and serious questions about its core provisions. If Restatement Third is not the law, what does Aubin mean for the future and the trial of Florida product liability cases?
What is clear is that major changes need to be made in the standard products liability jury instructions. “Risk/benefit” needs to be removed as a test for product defect and the affirmative defense of “unavoidably unsafe products” needs to be brought in line with comment k of Restatement (Second) Torts §402A.22
Of more importance is what Aubin means for the trial of product liability cases. Strict liability and the consumer expectations test do not limit the evidence that may be admissible in cases. Plaintiffs are free but not required to offer evidence that there was an alternative design for the product that posed less risk while defendants can offer proof that no safer design existed.23 Expert testimony for either side is still admissible but not necessarily required.
Plaintiffs can also prove how a manufacturer represented or marketed its product as a way of establishing what consumers would expect from the product or the uses for the product. With modern marketing and advertising, there are virtually no products for which consumers do not have an expectation of safety, especially when the product is advertised in family settings or with people generally experiencing joyous times. All of those advertisements, testimonials, product brochures, and other indicia of product portrayal are potentially relevant, both for what they say as well as for what they don’t say. This is so for not only simple consumer products but also for complex products since it is not necessary for a consumer to appreciate all the details or intricacies of a product to have an expectation of safety.
Consumers also reasonably expect that a manufacturer will adequately test its design or utilize available technology so evidence that it failed to do so should be admissible. To the contrary, defendants can prove that they did the best available under the existing state-of-the-art. Plaintiffs can argue that a product’s risks outweighed its benefits, while defendants can argue the opposite. All of these points can inform what a consumer should reasonably expect from the product, and parties are limited only by the extent of counsels’ inventiveness in creating persuasive arguments.
If defendants assert an affirmative defense that the product was unavoidably unsafe, a range of other considerations come into play. First, the defendant must demonstrate that it utilized a proper design regimen, tested its resulting design, and was unable to eliminate the risks by either changing the design or providing safeguards or safety mechanisms. Second, the defendant would need to demonstrate that it furnished proper directions and warning for the use of the product. The warnings must be of sufficient prominence and intensity commensurate with the risk so as to cause a reasonable person to exercise precaution of their safety. Finally, the benefits of the product must outweigh its risks.
This may seem at first glance to be onerous but the “unavoidably unsafe” defense was meant to be rare. Instead, the drafters of strict liability intended to incentivize manufacturers to design and market safe products by rules that placed the burden of product injuries on those who marketed the products, rather than their users.
From a broader perspective, the societal policies behind strict liability for product harms that were reaffirmed in Aubin — that the burden of compensating victims of unreasonably dangerous products should fall on the manufacturers of those products as the ones most able to protect against the risk of harm24 — continue to make good sense. In a time of galloping technology, it is just as true, if not more so, that product sellers bear a special responsibility to consumers to provide safe products and the public has the right to expect that sellers will stand behind their products.
1 Aubin, 177 So. 3d at 502 .
2 Union Carbide Corp. v. Aubin, 97 So. 3d 886, 893 (Fla. 3d DCA 2012).
3 Restatement (Third) Torts: Products Liability §2(b) (Am. Law Inst. 1997).
4 Aubin, 177 So. 3d at 510.
5 Aubin also involved the “learned intermediary” defense for component part manufacturers but that is not a subject of this article.
6 Restatement (Second) Torts §402A (Am. Law Inst. 1964), comment i. See also comment g: “Defective condition. The rule…applies only where the product is…in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.”
7 The risk/benefit “test” is generally attributed to Dean John Wade, On the Nature of Strict Tort Liability for Products, 44 Miss. L. J. 825 (1973). Dean Wade argued essentially for nullification of strict liability for all types of product defects and a return to negligence principles in which liability would be based on the reasonableness of the marketing decision, and the manufacturer would be judged on a “reasonable prudent manufacturer” standard.
8 West, 336 So. 2d at 87.
9 Id. at 92.
10 Hill, 404 So. 2d at 1052.
11 Id. at 1052, n. 4.
12 See Supplemental Report (No. 82-2) of the Committee and Minutes attached thereto filed in Matter of Standard Jury Instr. (Civil Cases), 435 So. 2d 782 (Fla. 1983).
13 Id. at 783.
14 Aubin, 177 So. 3d at 504.
15 Adams, 576 So. 2d at 733.
16 Force, 879 So. 2d at 106 (emphasis added).
17 See, e.g., Vargo, The Emperor’s New Clothes: The American Law Institute Adorns a “New Cloth” for Section 402A Products Liability Design Defects — A Survey of the States Reveals a Different Weave, 26 U. Mem. L. Rev. 493 (1996); Popper, Restatement, Third, Goes to Court,
Trial 54 (April 1999); Shapo, Products Liability: The Next Act, 26 Hofstra L. Rev. 761 (1998); Vandall, The Restatement (Third) of Torts: Product Liability: Section 2(b): The Reasonable Alternative Design Requirement, 61 Tenn. L. Rev. 1407 (1994); Gray, The Draft ALI Product Liability Proposals: Progress or Anachronism? 61 Tenn. L. Rev. 1105 (1994); Little, The Place of Consumer Expectations in Products Strict Liability Actions for Defectively Designed Products, 61 Tenn. L. Rev. 1189 (1994); Vandall, State Judges Should Reject the Reasonable Alternative Design Standard of the Restatement (Third), Products Liability, Section 2(b), 8 Kan. J. L. & Pub. Pol’y 62 (1998). The reporters’ “counting” of Florida illustrates the fundamental flaws in their majority rule claim. Ignoring West and Hill, the reporters touted Radiation Technology, 445 So. 2d 328 (Fla. 1983), as “the leading case in Florida,” claiming the court there adopted the risk/benefit test for design defects and implicitly required proof of an alternative design. Restatement (Third) Torts: Products Liability §2(b) (Am. Law Inst. 1997), reporters’ note at 66-67. Radiation Technology did not, however, involve a strict liability claim and noted by the Aubin court, there were no such holdings in that decision. Aubin, 177 So. 3d at 510.
18 Banks v. ICI Americas, Inc., 450 S.E.2d 671 (Ga. 1994).
19 Carlin v. Superior Court, 920 P.2d 1347 (Cal. 1996); Potter v. Chicago Pneumatic Tool Co., 694 A.2d 1319 (Conn. 1997).
20 Potter, 694 A.2d at 1331.
21 Rodriguez v. Suzuki Motor Corp. , 996 S.W.2d 47, 64-65 (Mo. 1999); Delaney v. Deer and Co. , 999 P.2d 930 (Kan. 2000); McCathern v. Toyota Motor Corp. , 23 P.3d 320 (Or. 2001); Green v. Smith & Nephew APF, Inc. , 629 N.W.2d 727 (Wi. 2001); Vautour v. Body Masters Sports Industries, Inc. , 784 A.2d 1178 (N.H. 2001); Tincher v. Omega Flex, Inc. , 104 A.3d 328, 335 (Pa. 2014); and Halliday v. Surm, Ruger & Co., 792 A.2d 1145 (Md. 2002).
22 Aubin also requires jury instruction changes to implement the “learned intermediary” defense for component part manufactures.
23 Aubin, 177 So. 3d at 511, 512.
24 Id. at 510.
Larry S. Stewart retired from the active practice of law in June 2016. He is a nationally recognized expert in products liability law and continues as a member of the American Law Institute where he serves on the council and the executive committee. He was co-counsel for the Florida Association of Justice as amicus curie in the Aubin case. Previously, he served for 10 years on the Florida Supreme Court Jury Instruction Committee for civil cases where he led the reorganization and conversion of the civil instructions to plain English.