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Survey of product liability design defect requirements

In products liability cases, plaintiffs often allege that the product was defectively designed and inherently dangerous. Knowledge of the applicable state law for design defect is critical. The test for whether a product is inherently dangerous has evolved in recent years from the "consumer expectations test" to the "risk-utility test." Although products liability scholars have advocated for the explicit use of the risk-utility test, many states have yet to adopt the new standard.

Under the traditional consumer expectations test, the seller of a product is liable if the product is in a defective condition such that it renders the product unreasonably dangerous to the consumer. This standard allows a jury to infer the existence of a defect if the product fails to meet reasonable expectations of consumers.

The consumer expectations test prevailed as the standard for design defect claims until the 1980s. At that time, a view arose among products liability scholars that the consumer expectations test was both indefensible in theory and unworkable in practice. The scholars advocated instead for a newly emerged theory that balanced the benefits of using a product as designed with the risks of harm associated with the design, known as the risk-utility test.

This article surveys the current state of law across the fifty states to demonstrate which states have adopted the risk-utility test and which states remain committed to the consumer expectations test. The survey includes whether the state requires a plaintiff to demonstrate that a feasible alternative product design would have prevented plaintiff's harm at a reasonable cost.