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.