On September 13, 2016, the Connecticut Supreme Court listened to arguments regarding Bifolck v. Philip Morris, Inc. The main question proposed to the court was the following: When claims are based on design defects, should the state abandon their current expectation test and establish a utility risk test that will require proof that there is a safer alternative design?
The case, which was highlighted by The National Law Review, has significant implications on how product liability claims may be handled in the future for the state. It will not only change the burden of proof for the plaintiff, but it will influence how manufacturers create products, distribute them, and sell their products in the state. Twelve organizations have already filed amici briefs.
Currently, Connecticut uses standards for design defects that were originally established in 1965. It was part of the state’s Restatement (Second) of Torts. In the standard, manufacturers are strictly liable for any injuries and damages caused by a defective product if the product is “unreasonably dangerous” to the consumer.
Determining if the product is unreasonably dangerous is determined by the consumer expectation test. This assesses if the product is dangerous beyond what the standard consumer would expect it to be, and if it exceeds the ordinary expectations of the public in terms of safety.
The consumer expectation test does not always apply to design defects or failures to warn. Because of this, other states have implemented a risk utility test in its place. This test specifically assesses nonexclusive factors, such as if the manufacturer could determine safer alternatives or offer fixes that would not alter the product’s usefulness or cost.
Under a risk assessment, the manufacturer is not liable for designs that focus on safety when used as intended – even if the product’s design did not eliminate all risks for injury.
In 1997, the state of Connecticut had already adopted the revised product liability law by imposing the modified consumer expectation test. This is used for more complex product concepts where someone cannot form an expectation of safety.
The current case explores the option of modifying the law entirely. The plaintiff is urging the courts to continue their use of the consumer expectation test. They state that any law changes at this point would be too severe, and eliminating strict liability with a foreseeability standard was unfair.
The defendant has requested that the courts abandon the current expectation test and adopt the new approach. They state that the risk assessment test is important, because it establishes that a product is not inheritably dangerous and that liability should only be present when harm is preventable.
If the Court does adopt this change, Connecticut would have a clearer product liability law and better guidance when handling product liability claims in the future. The defense also states that the risk utility test addresses the need for a single standard to determine if a product was dangerous, and if the manufacturer could have prevented injury prior to its release.
The case is still ongoing; therefore, no changes have been made yet to product liability claims.
While this case is ongoing, the current standards are in play for product liability claims. If you have been injured, the manufacturer faces strict liability. However, you must contact an attorney first to explore your options and determine if you have a case against that manufacturer. Contact Berkowitz and Hanna LLC today to schedule a no-obligation case evaluation. Call 866-479-7909 or contact us online to get started.