Risk Utility vs. Consumer Expectations in Product Liability Cases

By: J. Richard Caldwell and Bud Kirk


The Florida Supreme Court is currently considering revisions to the Florida Standard Jury Instructions that could make product liability cases in Florida more difficult to defend. Founding partners, Bud Kirk and Dick Caldwell are carefully monitoring the status of the proposed revisions and have taken an active role in petitioning the Court to consider the possible impact of these changes from the manufacturers’ perspective.

Can you begin by briefly describing the difference between a risk utility test and a consumer expectation test and how they are applied in a product liability case?

Dick Caldwell: The risk-utility test, which is applicable to design defect allegations, asks the jury to consider whether the risks posed by a product design are outweighed by the utility of the design in accomplishing the uses or function of the product. Many cases which discuss the risk-utility test set forth a short list of factors which a jury can consider in reaching its determination, including the obviousness of the danger and the availability of a reasonable alternative design which would avoid such danger. The risk-utility test has no application to manufacturing defect claims.
Bud Kirk: Further to Dick’s comment, the consumer expectations test simply asks the jury to determine whether the product design functioned as safely as a reasonable consumer to expect. It gives the jury no objective criteria under which to reach its decision. There are Florida cases which discuss both the risk-utility test and the consumer expectations test in products cases. For that reason, the current Florida Standard Jury Instructions contain instructions addressing both tests, pending further development of Florida law.

Is one test preferred over the other by a defense lawyer? Plaintiff lawyer?

Dick Caldwell: In most cases, the defense in a product liability test will prefer the risk-utility test. Virtually every product known to man carries with it some risk of harm. The risk-utility test allows the jury to weigh that risk and compare it to the utility or benefits of the design, utilizing some objective criteria. The consumer expectations test is much more subjective, and Florida case law recognizes that it may not work well in situations involving complex products for which an average consumer may not be able to form expectations in the first place.
How are juries prepared to understand the differences between the tests in product liability cases?

Bud Kirk: The risk-utility test is easier for a lay jury to understand, because it gives jurors some factors to weigh in reaching their decision. Regardless of which test is used, it is the task of defense counsel to educate the jury in the aspects of the design which are implicated in the particular case. Starting with voire dire questioning through expert witness testimony, exhibits which depict and explain the design, and argument, if the defense counsel does a good job in explaining the design, and giving the jurors some level of expertise themselves concerning the product, the result is usually positive.

Why is the Florida Supreme Court now looking at changing its rules in regards to product liability jury instructions?

Dick Caldwell: The Florida Supreme Court Standard Jury Instructions Committee (Civil) has undertaken a complete revision of the standard jury instructions used in civil cases. Parts of this revision were submitted to the Supreme Court several months ago. The product liability instructions, which were more controversial, were only recently submitted, over a strong dissent from some Florida Bar members who felt that the revised instructions constituted a departure from, and unwarranted change in, Florida law. It was argued that the proposed revised instructions in many respects tilted the playing field in favor of plaintiffs, and deprived defendants in product cases of the benefit of legal protections which had been part of the law in Florida.

What is the potential impact to manufacturers if these jury instructions are changed?

Dick Caldwell: The current instructions will be changed in any event. The question is whether the Supreme Court of Florida, in reaching its decision concerning approval of the instructions, adopts the plaintiff-oriented changes submitted by the Committee majority, or sends the proposed instructions back to the Committee, hopefully with guidance to reach a more balanced set of product liability instructions. If the former result obtains, products liability cases will become more difficult to defend in Florida.

Is anything being done to keep these rules from changing?

Bud Kirk: The Supreme Court of Florida recently requested further comment on several of the proposed products liability instructions, including proposed instruction 403.7, which addresses among other things the risk-utility and consumer expectations tests that we already discussed . In fact, Dick and an attorney from another Florida law firm have led the charge in the submission of a memorandum to the Court pointing out the deficiencies in the proposed instruction 403.7, as well as other proposed instructions, and appeared before the Court for oral argument. Other defense counsel across the state also submitted comments.  Now we're just waiting for the Court to render its decision.

Additionally, the Restatement 3rd makes it clear that Consumer Expectation should apply to manufacturing defects as opposed to design defects.  If an axle in a car was not manufactured to specifications and breaks causing an accident, consumer expectation would apply.  Consumers do not expect an axle to break because it does not meet specs.  That is a far cry from determining if a roof which was designed like just about any other roof was designed defectively which would invoke the risk utility test.  It is a more complicated determination.