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Recent Developments in Design Defect Liability Cases Under Connecticut Products Liability Act

by Kelly Petter

Connecticut Supreme Court’s 2016 decisions in Izzarelli v. R.J. Reynolds Tobacco Company and Bifolck v. Philip Morris Inc. modified and clarified existing law regarding design defect lawsuits brought pursuant to the Connecticut Product Liability Act. Izzarelli v. R.J. Reynolds Tobacco Company, 321 Conn. 172, 136 A.3d 1232 (2016); Bifolck v. Philip Morris Inc., 324 Conn. 402, 431-32, 152 A.3d 1183 (2016). The decisions provide comprehensive and detailed analysis of the relevant factual considerations under design defect product liability claims premised on theories of negligence and strict liability, which considerations were previously unspecified under Connecticut legal authority.

By way of the Connecticut Product Liability Act, Conn. Gen. Stat. § 52-572 et seq., the Connecticut legislature codified all claims and actions for personal injuries arising against product sellers as a result of their products regardless of the theory of liability. See Conn. Gen. Stat. § 52-572m(b); Conn. Gen. Stat. 52-572n(a). The intent behind the Act was to eliminate complex pleadings; it did not create new rights or eliminate substantive rights available at common law. Lynn v. Haybuster Manufacturing, Inc., 226 Conn. 282, 292, 288-89, 627 A.2d 1288 (1993). One such claim recognized under the Act is design defect liability cases wherein a plaintiff claims that the product’s design was defective. Connecticut recognizes design defect cases based on theories of strict liability and negligence. The Connecticut Supreme Court addressed both such theories in two separate 2016 decisions.

Connecticut first recognized strict products liability in the case of Garthwait v. Burgio in which the Court adopted § 402A of the Restatement (Second) of Torts. Garthwait, 153 Conn. 284, 216 A.2d 189 (1965). After Garthwait, the Connecticut Supreme Court  succinctly stated that  “in order to recover under the doctrine of strict liability in tort the plaintiff must prove that: (1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition.” Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 234, 429 A.2d 486 (1980). In order to recover under a design defect theory, the plaintiff must establish that the product was unreasonably dangerous; the definition of which has been adopted from comment (i) to § 402A, which states that “the article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” 2 Restatement (Second), supra, § 402A, comment (i); see Giglio, supra, 234; Slepski v. Williams Ford, Inc., 170 Conn. 18, 23, 364 A.2d 175 (1976); Watchtel v. Rosol, 159 Conn. 496, 500, 271 A.2d 84 (1970); Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 562, 227 A.2d 418 (1967).

In Potter v. Chicago Pneumatic Tool Co., the Supreme Court “adhered to [the] long-standing rule that a product’s defectiveness is to be determined by the expectations of an ordinary consumer, [but] nevertheless recognize[d] that there may be instances involving complex product designs in which an ordinary consumer may not be able to form expectations of safety.” Potter, 241 Conn. 199, 219, 694 A.2d 1319 (1997). The Court held that, in those cases, the modified consumer expectation test should apply, which considers consumer’s expectations based on a balancing test that analyzes the utility of the product’s design with the magnitude of its risks, and then inquires whether a reasonable consumer would consider the product unreasonably defective. Id., 220. The Potter Court went on to detail, “[i]n our view, the relevant factors that a jury may consider include, but are not limited to, the usefulness of the product, the likelihood and severity of the danger posed by the design, the feasibility of an alternative design, the financial cost of an improved design, the ability to reduce the product’s danger without impairing its usefulness or making it too expensive, and the feasibility of spreading the loss by increasing the product’s price.” Id., 221. The Court also held that the ordinary consumer expectation test remained applicable in those situations where “the everyday experience of the particular product’s user permits the inference that the product did not meet minimum safety expectations.” Id., 222.

In 2016, upon certification from the Federal District of Connecticut, the Connecticut Supreme Court analyzed the principles relevant to design defect cases premised on theories of negligence and strict liability. In Izzarelli v. R.J. Reynolds Tobacco Company, the Supreme Court clarified the standards applicable to strict liability design defect cases. Izzarelli, 321 Conn. 172, 136 A.3d 1232 (2016). The Court considered the Potter decision noting that “[u]nder Potter, the modified consumer expectation test is our primary test. The ordinary consumer expectation test is reserved for cases in which the product failed to meet the ordinary consumer’s minimum safety expectations, such as res ipsa type cases.” Id., 194. The Court elected to uphold the Potter decision maintaining the modified consumer expectation test as the default test and reserving the ordinary consumer expectation test for only those cases where a product fails to meet a consumer’s legitimate, commonly accepted minimum safety expectations. Id., 202. The Court reasoned that the ordinary consumer expectation test sets the floor for liability under strict liability principles while the modified consumer expectation test sets the ceiling. Id. “In other words, a product might meet the consumer’s minimum safety expectations because the product’s dangers are known or obvious but nonetheless be defective because it could have been designed to be less dangerous without unreasonably compromising cost or utility.” Id. Thus, a defendant’s verdict under the ordinary test and a plaintiff’s verdict on the modified test are not inconsistent. Id.

Later in 2016, the Connecticut Supreme Court issued its decision in Bifolck v. Philip Morris Inc. wherein the Court refined the standard applicable to strict liability claims to further clarify the requirements thereto. Bifolk, 324 Conn. 402, 431-32, 152 A.3d 1183 (2016). First, “to distinguish the tests in a manner more reflective of their application,” the tests were renamed the consumer expectation test and the risk-utility test. Id., 432. Second, the Court held that plaintiffs are now required “to allege, and thereby put the defendant on notice, whether the product is claimed to be unreasonably dangerous because (a) a reasonable alternative design could have reduced or avoided the danger, or (b) the design of the product marketed is manifestly unreasonable in that the risk of harm from the product so clearly exceeds its utility that a reasonable, informed consumer would not purchase the product, or (c) both.” Id. The Court clarified that a jury may properly weigh the product’s risks and utility under either theory, but a jury may only consider the availability of an alternative design when considering a claim brought pursuant to (a). Id. A jury’s considerations under (b) are to be focused exclusively on the risks and utility of the product sold – “the greater the utility, the greater the risk must be to render the product unreasonably dangerous.” Id. Third, the Court held that in order to set forth a prima facie case on the theory that the product is unreasonably dangerous because it lacked some feature that would have reduced or avoided the injury, the plaintiff must simply prove that the alternative design was feasible (technically and economically) and that the alternative would have reduced or avoided the harm. Id., 433. Other factors may be considered by a jury, but are not necessary for the case to be submitted to the jury and a case should not be precluded from jury consideration due to lack of other evidence. Id. In that regard, the Court also clarified that “as to economic feasibility, the plaintiff need not prove the precise cost of the alternative design. The plaintiff only need proffer sufficient evidence from which a jury could reasonably conclude that any increase in cost would not materially affect the desirability of the product in light of the benefit derived.” Id. Fourth, the Court held that proof of the product’s noncompliance with safety statutes or regulations or a product seller’s express representations would establish the product’s failure to meet consumers’ legitimate, commonly accepted, minimum safety expectations and, thus, would establish a defect under the consumer expectation test. Id. Notably, the utility of the product would not excuse such noncompliance. Id.

The Bifolk Court also considered the application of Potter, supra, and Izzarelli, supra, to design defect actions brought based in negligence rather than strict liability. Id., 408. With regard to liability in such actions, the Court ultimately held that the elements of a defective design claim proffered by the Restatement (Third) of Torts would not be adopted. Id., 408. It further held that the consumer expectations test put forward in the comment section of the Restatement (Second) and adopted in Garthwait, supra, does not apply to a product liability claim premised on negligence although the claim requires proof of a “defective condition unreasonably dangerous” to the user or consumer. Id., 445.

Most notably, the Bifolk Court did not opine as to the appropriateness or inappropriateness of the substance of the relevant sections of the Restatement (Third) of Torts. Id., 431. Rather, the Court decided the legislature was the appropriate entity to make such changes. Id. (“We also observe that if we defer further consideration of the Restatement (Third) until such time as we have a case in which our current standards have demonstrated themselves to be unworkable or result in a manifest injustice, not only might we make a better informed decision, but the legislature might, in the interim, initiate its own reforms. The parties on each side of this issue have raised legitimate policy arguments in support of their respective positions. Public hearings on this issue and further study might yield the best result. We underscore that we do not conclude that this court cannot adopt the Restatement (Third), but simply that we should not do so at the present juncture.”) Whether further changes from the legislature are forthcoming is unclear, but the Court certainly encouraged consideration of these issues by the legislature.