We’re talking about the Restatement (Third) of Torts, Products Liability §2, to be precise. Being in Pennsylvania, for quite some time we’ve had more than a passing interest in this section of the Third Restatement and its essentially negligence (“reasonableness”)-based theory of product liability. For decades, Pennsylvania followed a “ne’er the twain shall meet” rule that strictly separated strict liability from “negligence concepts.” That approach was exemplified by Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978). But in Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003), three justices of the Pennsylvania Supreme Court opined that a quarter century had proven wanting the “strict liability” of the Azzarello sort, and that Pennsylvania law should move to the negligence-based standard of §2. 841 A.2d at 1015-16. Full disclosure – Bexis filed a brief for PLAC in Phillips on the Restatement Third issue.
While three justices aren’t a majority of Pennsylvania’s seven-member Supreme Court, in Phillips they outnumbered the court’s Azzarello supporters 3-2 (there was a vacancy and an obscure concurrence in the result). In almost seven intervening years, the court has failed to address the issue squarely, although not for want of trying. The court thought it was going to decide the issue in Straub v. Cherne Industries, 880 A.2d 561 (Pa. 2005), but instead found there had been a waiver. The court tried again in Bugosh v. I.U. North America, Inc., 971 A.2d 1228 (Pa. 2009), but dismissed the appeal as improvidently granted after it turned out that the defendant was an intermediate seller, not a true manufacturer (that makes a difference in the Third Restatement, but it’s not important here).
Finally, the Third Circuit got fed up with the issue remaining undecided, and after trying unsuccessfully to get the Pennsylvania Supreme Court to accept a certified question, took the metaphorical bull by the horns and predicted that the court would eventually adopt the Third Restatement in Berrier v. Simplicity Manufacturing, 563 F.3d 38, 57 (3d Cir. 2009). As we discussed in an earlier post, that’s led to still more squabbling among the federal district courts.
Full disclosure – Bexis filed amicus briefs for PLAC in all of those other cases on the Third Restatement issue.
So the Third Restatement question has vexed Pennsylvania product liability law for quite a few years. Well, not too long ago we (well, Bexis, obviously) was expressing his frustration with this indeterminate state of affairs with regular blog reader whom we ‘re not sure wants to be publicly identified, so we won’t, and said reader mentioned that his/her home state of Wisconsin was in somewhat of the same boat.
We didn’t know that.
Intrigued, we took a look and sure enough, just like in Pennsylvania, there’s (at least) a three-justice faction in the Wisconsin Supreme Court that’s ready to ditch that state’s outdated “consumer expectation” formulation of strict liability and move to the current Restatement. See Horst v. Deere & Co., 769 N.W.2d 536 (Wis. 2009) (Gableman, Prosser & Rogensack, JJ. concurring); Godoy v. E.I. du Pont de Nemours, 768 N.W.2d 674 (Wis. 2009) (Prosser, Gableman, & Ziegler, JJ., concurring).
We didn’t know squat about the state of play in Wisconsin, and our reader didn’t know what was going on in Pennsylvania. Well, eliminating that kind of mutual ignorance is one of the things that this blog’s all about, so we thought we’d take a look at how §2 of the Third Restatement is faring these days.
We see three important issues wrapped up in the Third Restatement – these being, (1) risk/utility balancing as the basic means of assessing liability, (2) the requirement of a feasible alternative design, and (3) employment of negligence-based “reasonableness” as the test. The third’s a little hard to research, so we’ll use a proxy for the allowing of negligence concerns in strict liability, which is whether a plaintiff’s comparative fault/negligence reduces the verdict or at some level becomes a complete defense.
Here’s what we’ve found:
Alabama follows its own peculiar form of strict liability called the “Alabama Extended Manufacturer’s Liability Doctrine.” The state has never adopted the Third Restatement §2, although its supreme Court has cited parts of §2 with approval. See Ex parte Chevron Chemical Co., 720 So.2d 922, 928 n.6 (Ala. 1998). Alabama’s doctrine is somewhat distinct, in that it seems to combine a tough alternative design requirement with a consumer expectation test. Beech v. Outboard Marine Corp., 584 So.2d 447, 450 (Ala. 1991); Elliott v. Brunswick Corp., 903 F.2d 1505, 1507-08 (11th Cir. 1990). A plaintiff’s comparative negligence is a defense. General Motors Corp. v. Saint, 646 So.2d 564, 568 (Ala. 1994). Thus, a fair amount of what’s in the Third Restatement is already part of Alabama law.
The Alaska Supreme Court has never discussed Restatement Third §2, although it has followed other, more specialized sections of the Third Restatement. See Bell v. Precision Airmotive Corp., 42 P.3d 1071, 1071 (Alaska 2002) (§20); Savage Arms, Inc. v. Western Auto Supply Co., 18 P.3d 49, 56-58 (Alaska 2001) (§12); Smith v. Ingersoll-Rand Co., 14 P.3d 990, 995 (Alaska 2000) (§17); see also Munhoven v. Northwind Marine, Inc., 353 F. Supp.2d 1072, 1074 (D. Alaska 2005) (following §19). Historically, Alaska has allowed both consumer expectation and risk/utility. General Motors Corp. v. Farnsworth, 965 P.2d 1209, 1220 (Alaska 1998), has not imposed an alternative design element, Maines v. Kenworth Alaska, Inc., 155 P.3d 318, 328, n.35 (Alaska 2007), and has deducted a plaintiff’s comparative negligence from verdicts. Alaska Stat. §09.17.080(a). Alternative design is a “factor” – particularly in prescription drug cases. Shanks v. Upjohn Co., 835 P.2d 1189, 1196-97 (Alaska 1992). Restatement Third §2 would be a significant revision of Alaska law – sort of like what just happened in South Carolina.
Lower Arizona courts have followed the Restatement Third §2 on the rationale that, in general, Arizona law has adopted the principles of the Restatement of Torts. Powers v. Taser International, Inc., 174 P.3d 777, 781-82 (Ariz. App. 2007) (adopting Restatement Third §2(c) regarding warnings; “[a]bsent controlling Arizona law to the contrary, we generally follow the Restatement”); Southwest Pet Products, Inc. v. Koch Industries, Inc., 273 F. Supp.2d 1041, 1052 (D. Ariz. 2003) (“reliance on Restatement (Third) of Torts is in keeping with Arizona’s longstanding policy to look to the Restatement absent contrary precedent”); see also Golonka v. General Motors Corp., 65 P.3d 956, 965 n.3 (Ariz. App. 2003) (following §2’s risk/utility and unitary negligence-based theory for design defect).
The Arizona Supreme Court has adopted another portion of the Third Restatement. Flagstaff Affordable Housing Ltd. Partnership v. Design Alliance, 223 P.3d 664, 670 (Ariz. 2010) (§21).
With this background, the Third Restatement seems well matched for Arizona.
Arkansas product liability is primarily statutory, thus limiting the applicability of common-law doctrines. Contrary to the Restatement, the Arkansas statute codifies consumer expectations. Ark. Code §16-116-102(7)(A). The Arkansas Supreme Court has never considered Restatement Third §2, but has followed another section of the Third Restatement. Wagner v. General Motors Corp., 258 S.W.3d 749, 755-56 (Ark.2007) (§5). Arkansas allows comparative fault/negligence in strict liability. Ark. Code §16-64-122; W.M. Bashlin Co. v. Smith, 643 S.W.2d 526, 529 (Ark. 1982).
Even with the consumer expectations test, federal courts applying Arkansas law have required alternative designs. Anderson v. Raymond Corp., 340 F.3d 520, 524-25 (8th Cir. 2003); Dancy v. Hyster Co., 127 F.3d 649, 653-54 (8th Cir. 1997).
Parts of the Third Restatement could apply in Arkansas, but there’s a statute, and we don’t like courts playing games with product liability statutes.
Once upon a time, California invented strict liability, and it hasn’t adopted either the Second or Third Restatement formulations. Product liability in California has been double barreled, allowing recovery either on consumer expectation or risk/utility. Soule v. General Motors Corp., 882 P.2d 298, 308-09 (Cal. 1994); Barker v. Lull Engineering Co., 20 Cal.3d 413, 573 P.2d 443, 455-56 (Cal. 1978). Soule limited consumer expectations to “cases in which the everyday experience of the product’s users permits a conclusion that the product’s design violated minimum safety assumptions.” 882 P.2d at 308. Alternative design is a “factor” in the risk/utility test, id. at 305, but we haven’t seen a case where the California Supreme Court has declared it an essential element.
California allows comparison of a plaintiff’s negligence and a defendant’s strict liability. Daly v. General Motors Corp., 575 P.2d 1162, 1168-69 (Cal. 1978); see State Dept. of Health Services v. Superior Court, 79 P.3d 556, 563 (Cal. 2003).
Lower California courts, but not the California Supreme Court, have cited Restatement Third §2 with approval. Bell v. Bayerische Motoren Werke Aktiengesellschaft, 105 Cal.Rptr.3d 485, 504 (Cal. App. 2010); Morson v. Superior Court, 109 Cal. Rptr.2d 343, 351-52 (Cal. App. 2001). See also In re: Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation, 341 F. Supp.2d 386, 402 n.78 (S.D.N.Y. 2004) (finding alternative design test of Restatement Third §2 compatible with California law).
While the California courts might have to swallow a little pride to adopt the Third Restatement, it doesn’t seem all that different from strict liability under the Soule risk/utility prong.
Colorado appellate courts have recently followed other parts of the Third Restatement. Boles v. Sun Ergoline, Inc., 223 P.3d 724, 727 (Colo. 2010) (§§1 & 18); O’Connell v. Biomet, Inc., ___ P.3d ___, 2010 WL 963234, at *3 (Colo. App. March 18, 2010) (§6). There is no Colorado decision addressing Restatement Third §2.
Like the Restatement, Colorado follows a risk/utility defect test. E.g., Barton v. Adams Rental, Inc., 938 P.2d 532, 537 (Colo. 1997); Fibreboard Corp. v. Fenton, 845 P.2d 1168, 1173-74 (Colo. 1993). An alternative design is an important factor, but not always essential. Armentrout v. FMC Corp., 842 P.2d 175, 185 & n.11 (Colo. 1992). By statute, a plaintiff’s negligence can be compared against a defendant’s strict liability. Colo. Rev. Stat. §4-2-318.
Restatement Third §2 would be a change, but not a huge one, for Colorado.
The Connecticut Supreme Court has rejected Restatement Third §2, largely because of the Restatement’s alternative design requirement and risk/utility test. Potter v. Chicago Pneumatic Tool Co., 694 A.2d 1319, 1331-33 (Conn. 1997). Connecticut only requires risk/utility balancing in “complex” design cases. Id. at 1334. A plaintiff’s negligence can be compared against a defendant’s strict liability. Champagne v. Raybestos-Manhattan, Inc., 562, A.2d 1100, 1117 (Conn. 1989). Since Connecticut has already spoken, we won’t speculate.
Delaware has never adopted strict liability, declaring it to be “impermissible judicial legislation.” Cline v. Prowler Industries, Inc., 418 A.2d 968, 974 (Del. 1980). In that context Restatement Third §2 is basically irrelevant. In the non-strict liability context alternative designs have been required in Delaware. Nacci v. Volkswagen of America, Inc., 325 A.2d 617, 620 (Del. Super. 1974). We wouldn’t advocate Restatement Third §2 in Delaware.
Federal courts applying DC law have applied Restatement Third §2. Mills v. Giant of Maryland, LLC, 508 F.3d 11, 13-14 (D.C. Cir. 2007); Rogers v. Ingersoll-Rand Co., 144 F.3d 841, 844-45 (D.C. Cir. 1999). The DC Court of Appeals (the high court) has followed another broadly applicable part of the Third Restatement, but has yet to consider §2. Weakley v. Burnham Corp., 871 A.2d 1167, 1177 (D.C. 2005) (§1).
Like the Restatement, DC follows risk/utility balancing. E.g., Warner Fruehauf Trailer Co., Inc. v. Boston, 654 A.2d 1272, 1276 (D.C. 1995). “[T]he plaintiff must show . . . alternative designs.” Id. The District does not recognize comparative fault/comparative negligence at all, M. Pierre Equipment Co., Inc. v. Griffith Consumers Co., 831 A.2d 1036, 1038 & n.1 (D.C. 2003), and contributory negligence does not bar strict liability. East Penn Manufacturing Co. v. Pineda, 578 A.2d 1113, 1118-19 (D.C. 1990).
DC seems ripe for the Restatement Third §2.
A bunch of Florida intermediate appellate decisions apply various aspects of the Restatement Third §2. Agrofollajes, S.A. v. E.I. Du Pont De Nemours & Co., ___ So.3d ___, 2009 WL 4828975, at *21-22 (Fla. App. Dec. 16, 2009) (risk/utility) (we’re not sure what’s up with this case’s reported status); Kohler Co. v. Marcotte, 907 So.2d 596, 598-601 (Fla. App. 2005) (risk/utility; negligence standard); Scheman-Gonzalez v. Saber Manufacturing Co., 816 So.2d 1133, 1139-40 (Fla. App. 2002) (risk/utility and alternative design); Warren v. K-Mart Corp., 765 So. 2d 235, 238 (Fla. App. 2000) (lack of distinction between negligence and strict liability). Florida’s jury instructions also reference §2. Standard Jury Instructions – Civil Cases, 872 So.2d 893, 893 (2004). However, the matter cannot be considered settled until the Florida Supreme Court has passed on the issue, which it has not.
Florida has always allowed a plaintiff’s comparative negligence to be compared to a defendant’s strict liability. West v. Caterpillar Tractor Co., 336 So.2d 80, 92 (Fla. 1976).
Florida law looks congruent with the Third Restatement on all major points, which is what the District Courts of Appeal seem to be telling us.
The Georgia Supreme Court followed Restatement Third §2 in Jones v. NordicTrack, Inc., 550 S.E.2d 101, 103-04 (Ga. 2001), expressly affirming its alternative design requirement. See also Ogletree v. Navistar International Transportation Corp., 500 S.E.2d 570, 572 (Ga. 1998) (applying §2 as to warning defects).
Hawaii state courts have never mentioned the Third Restatement. Hawaii federal courts have followed it. Burlington Insurance Co. v. United Coatings Manufacturing Co., 518 F. Supp.2d 1241, 1252 n.9 (D. Haw. 2007) (§2 specifically); Isham v. Padi Worldwide Corp., 2007 WL 2460776, at *6 (D. Haw. Aug. 23, 2007) (Third Restatement generally).
Except in cases of obvious defects (where consumer expectation is prohibited), product defects may be evaluated under either consumer expectation or risk/utility. Tabieros v. Clark Equipment Co., 944 P.2d 1279, 1310-13 (Haw. 1997). Hawaii compares a plaintiff’s negligence to a defendant’s strict liability. Hao v. Owens-Illinois, Inc., 738 P.2d 416, 418-19 (Haw. 1987). That would seem to rank Hawaii about on par with states like Colorado for adoption of the Third Restatement.
No Idaho court has discussed any part of the Third Restatement. Idaho law is generally congruent with the Restatement. The state follows the risk/utility formulation of defect. Toner v. Lederle Laboratories, 732 P.2d 297, 306 (Idaho 1987) (about the only good thing we’ve ever had to say about the Toner decision). There’s an alternative design requirement. E.g., Puckett v. Oakfabco, Inc., 979 P.2d 1174, 1181 (Idaho 1999). By statute, comparative fault is applicable to all product liability actions. Idaho Code §6-1404. Idaho would seem a very good candidate for the Restatement Third §2.
Illinois has abandoned its prior adherence to a consumer expectations test and adopted Third Restatement §2. Calles v. Scripto-Tokai Corp., 864 N.E.2d 249, 260-61 (Ill. 2007). Good for it.
Indiana has a broad product liability statute, Ind. Code §§34-20-1-1 to 34-20-9-1, therefore the courts are not free to adopt the Third Restatement. The statute imposes a consumer expectation test, Ind. Code §34-20-4-1, and has also been interpreted as requiring an alternative design. Dow Chemical Co. v. Ebling, 723 N.E.2d 881, 911 (Ind. App. 2000), aff’d in pertinent part and rev’d on other grounds, 753 N.E.2d 633 (Ind. 2001) (summary affirmance); Whitted v. General Motors Corp., 58 F.3d 1200, 1206 (7th Cir. 1995); see also In re: Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation, 341 F. Supp.2d 386, 402 n.78 (S.D.N.Y. 2004) (concluding that the alternative design test of Restatement Third §2 is compatible with Indiana law). Comparative fault includes a plaintiff’s negligence. Bourne v. Marty Gilman, Inc., 452 F.3d 632, 635 (7th Cir. 2006).
The Iowa Supreme Court has adopted Restatement Third §2. Scott v. Dutton-Lainson Co., 774 N.W.2d 501, 504 (Iowa 2009); Parish v. Jumpking, Inc., 719 N.W.2d 540, 543-45 (Iowa 2006); Wright v. Brooke Group Ltd., 652 N.W.2d 159, 169 (Iowa 2002).
In Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 42 (Ky. 2004), the court agreed with the alternative design requirement in Restatement Third §2, but reserved whether to adopt the rest of the section. Gregory also confirmed that Kentucky was a risk/utility state. Id. Comparative fault in Kentucky includes a plaintiff’s negligence in strict liability cases. Caterpillar, Inc. v. Brock, 915 S.W.2d 751, 753 (Ky. 1996). The Third Restatement (at least §2) would make no significant changes to current Kentucky law.
The Louisiana Product Liability Act imposes risk/utility and alternative design requirements. La. Rev. Stat. §9:2800.54. Thus, federal courts applying Louisiana law have looked to Restatement Third §2 as analogous, which has the same elements. Krummel v. Bombardier Corp., 206 F.3d 548, 552 (5th Cir. 2000); Kampen v. American Isuzu Motors, 157 F.3d 306, 314-15 n.6 (5th Cir. 1998); In re: Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation, 341 F. Supp.2d 386, 402 n.78 (S.D.N.Y. 2004). The Louisiana Supreme Court, while never addressing §2, has cited another section of the Third Restatement with approval. David v. Our Lady of the Lake Hospital, Inc., 849 So.2d 38, 46 n.8 (La. 2003) (§19C). Another statute applies comparative negligence to strict liability. La. Rev. Stat. §2323. Since Louisiana law is overwhelmingly statutory, it’s unlikely that Restatement Third §2 will be more than the guide it already is.
Maine has a product liability statute, Me. Rev. Stat. tit. 14 §221, that is modeled on Restatement (Second) of Torts §402A (1965), which limits a court’s ability to move to the Restatement Third §2. Under the statute, Maine courts have applied the risk/utility test, St. Germain v. Husqvarna Corp., 544 A.2d 1283, 1285-86 (Me. 1988), required alternative designs, Stanley v. Schiavi Mobile Homes, Inc., 462 A.2d 1144, 1148 (Me. 1983); Espeaignnette v. Gene Tierney Co., Inc., 43 F.3d 1, 6 (1st Cir. 1994), and imposed comparative negligence. Austin v. Raybestos-Manhattan, Inc., 471 A.2d 280, 287-88 (Me. 1984).
Courts applying Maine law have adopted numerous other sections of the Third Restatement, and in Neibauer v. Shimano American Corp., 1999 WL 33117103, at *5 (D. Me. Jun. 28, 1999), indicated that §2, to the extent compatible with the statute, would also apply. There is plenty of room for overlap, as Maine law is broadly congruent with Restatement Third §2.
In Halliday v. Sturm, Ruger & Co., 792 A.2d 1145, 1159 (Md. 2002), Maryland’s highest court declined to move to the Restatement Third §2’s risk/utility formulation in the peculiar context of a gun case – where the effect would have been to allow liability where the gun worked properly. Whether that portends a wholesale rejection remains unclear. As stated in Halliday, Maryland has followed a consumer expectations theory except where a product malfunctions, in which case risk/utility is appropriate. 792 A.2d at 1152 (discussing Kelley v. R.G. Industries, Inc., 497 A.2d 1143 (Md. 1985)). When the risk/utility theory is appropriate, an alternative design is required. 792 A.2d at 1150; Nissan Motor Co. Ltd. v. Nave, 740 A.2d 102, 120 (Md. App. 1999).
Maryland does not allow contributory negligence as a defense in strict liability. Ellsworth v. Sherne Lingerie, Inc., 495 A.2d 348, 356-357 (Md. 1985), and the state does not recognize comparative negligence or fault. Harrison v. Montgomery County Bd. of Education, 456 A.2d 894, 905 (Md. 1983). The Restatement Third would mean significant legal change in Maryland.
Massachusetts never really adopted Restatement Second §402A, preferring for the longest time to label its brand of strict liability as implied warranty. That changed in Vassallo v. Baxter Healthcare Corp., 696 N.E.2d 909, 923-24 (Mass. 1998), in which the court abandoned the warranty theory and adopted the Third Restatement §2 and its “reasonableness” standard. While the Supreme Judicial Court has not discussed alternative designs in the context of the Third Restatement, it has generally required an alternative design and balanced risk/utility factors. Haglund v. Philip Morris, Inc., 847 N.E.2d 315, 323 (Mass. 2006); Back v. Wickes Corp., 378 N.E.2d 964, 970 (Mass. 1978); see Kotler v. American Tobacco Co., 926 F.2d 1217, 1225 (1st Cir. 1990), vacated on other grounds, 505 U.S. 1215 (1992). So adoption of the rest of Third Restatement §2 would not be much of a stretch.
Michigan doesn’t recognize strict liability at all, so it would have no reason to consider Restatement Third §2. Radeljak v. Daimler Chrysler Corp., 719 N.W.2d 40, 47 n.10 (Mich. 2006); Pelc v. Bendix Machine Tool Corp., 314 N.W.2d 614, 620 (Mich. App. 1981); Owens v. Allis-Chalmers Corp., 268 N.W.2d 291, 293 (Mich. App. 1978). Because we see pure negligence as better than even the most benign forms of “strict liability,” you won’t find us advocating §2 in Michigan.
While the Minnesota Supreme Court has not passed upon Restatement Third §2 directly, it has adopted other parts of the Restatement with the express recognition that “we have frequently relied on the Restatement of Torts to guide our development of tort law.” Larson v. Wasemiller, 738 N.W.2d 300, 306 (Minn. 2007); see Harrison v. Harrison, 733 N.W.2d 451, 455 (Minn. 2007) (§1); Schafer v. JLC Food Systems, Inc., 695 N.W.2d 570, 575 (Minn. 2005) (§7); see also Duxbury v. Spex Feeds, Inc., 681 N.W.2d 380, 387 (Minn. App. 2004) (“Since its publication, we have relied on Restatement (Third) of Torts when considering the law of products liability”).
It is likely that Minnesota would adopt Restatement Third §2 because that state’s law already follows reasonableness principles, risk/utility balancing, and requires alternative designs. Kallio v. Ford Motor Co., 407 N.W.2d 92, 96 (Minn. 1987) (alternative design); Holm v. Sponco, 324 N.W.2d 207, 212 (Minn. 1982) (reasonableness and risk/utility).
Mississippi’s product liability law is primarily statutory, see Miss. Code §11-1-63, which probably explains why the Third Restatement has hardly been discussed at all by courts applying Mississippi law. The statute mandates alternative designs and a risk/utility approach to them. Id. §11-1-63(f)(ii). A plaintiff’s negligence is also a defense to strict liability. Pickering v. Industria Masina I Traktora (IMT), 740 So.2d 836, 843-44 (Miss. 1999). While Restatement Third §2 would be a close fit for current Mississippi law, there’s probably no need.
Missouri has codified Restatement (Second) of Torts §402A (1965). See Mo. Rev. Stat. §537.760. Thus its courts are not in a position to adopt the Third Restatement, as the Missouri Supreme Court held in Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 64-65 (Mo. 1999). Under the statute, an alternative design has not been required. Id. at 65. Missouri doesn’t necessarily follow consumer expectations either, though. Instead counsel are allowed to argue risks, benefits, and consumer expectations to the jury and the jury is given no instructions at all on what “unreasonably dangerous” means. Id. (discussing Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 377-78 (Mo. 1986)). Another statute applies comparative fault to strict liability. Mo. Rev. Stat. §537.765(3).
Missouri needs tort reform more than the Third Restatement.
Montana has a product liability statute; however, that statute does not define “defective.” Mont. Code §27-1-719(2). The statute does mandate comparative fault in strict liability. Id. §27-1-719(6).
There’s no Montana law at all on Restatement Third §2, and very little on the Third Restatement. See Malcolm v. Evenflo Co., 217 P.3d 514 (Mont. 2009) (rejecting §4 concerning statutory compliance). As discussed in Malcolm, 217 P.3d at 521, Montana “draws ‘a bright line’ between cases asserting strict liability in tort and those grounded in negligence theory,” so unless and until that changes it’s unlikely that Montana would follow §2. Montana does seem to have an alternative design requirement, although it’s less than crystal clear. Preston v. Montana Eighteenth Judicial District Court, 936 P.2d 814, 818-20 (Mont. 1997); Rix v. General Motors Corp., 723 P.2d 195, 201 (Mont. 1986). Rix also mandated risk/utility balancing. 723 P.2d at 201-02.
Nebraska law considers the Third Restatement to be “a well-coordinated body of law governing liability” that applies “a consistent definition of defect.” Freeman v. Hoffman-La Roche, Inc., 618 N.W.2d 827, 843 (Neb. 2000). It thus adopts §2.
The Nevada Supreme Court followed one of the comments to Restatement Third §2 in Rivera v. Philip Morris, Inc., 209 P.3d 271, 277 (Nev. 2009), but did not have occasion to address §2 itself. Generally, Nevada law relies on the Restatements of Torts. Moore v. Medtronic, Inc., 2006 WL 1795861, at *2 n.2 (D. Nev. June 28, 2006).
Nevada law requires alternative designs. Robinson v. G.G.C., Inc., 808 P.2d 522, 525-26 (Nev. 1991); McCourt v. J.C. Penney Co., 734 P.2d 696, 698 (Nev. 1987). This involves a weighing of product risks and benefits. Robinson, 808 P.2d at 524. Nevada does not permit comparative fault in strict liability. General Motors Corp. v. Eighth Judicial District Court, 134 P.3d 111, 118 (Nev. 2006); Maduike v. Agency Rent-A-Car, 953 P.2d 24, 27-28 (Nev. 1998). With two out of three already present, Nevada is a decent candidate for Restatement Third §2.
The New Hampshire Supreme Court has rejected Restatement Third §2 because of the alternative design requirement. Vautour v. Body Masters Sports Industries, Inc., 784 A.2d 1178, 1182-84 (N.H. 2001). New Hampshire follows a peculiar amalgam of risk/utility and consumer expectation, whereby “whether a product is unreasonably dangerous to an extent beyond that which would be contemplated by the ordinary consumer is determined by the jury using a risk-utility balancing test.” Id. at 1182 (discussing Price v. BIC Corp., 702 A.2d 330, 332-33 (N.H. 1997)). Plaintiff negligence is also a defense/verdict reduction in strict liability. Thibault v. Sears, Roebuck & Co., 395 A.2d 843, 848 (N.H. 1978). As we’ve said before, we’re not speculating (except in the special case of Wisconsin) in states where the highest court is already on record against Restatement Third §2.
New Jersey has a large statutory component to its product liability law, which precludes wholesale adoption of common-law doctrines such as the Third Restatement. The statute imposes both risk/utility balancing and an alternative design requirement. N.J. Stat. §2A:58C-3(a)(1-2). Thus, to extent possible, New Jersey law follows Restatement Third §2. Cavanaugh v. Skil Corp., 751 A.2d 564, 580 (N.J. Super. 1999) (as to risk/utility test), aff’d, 751 A.2d 518, 519 (N.J. 2000) (affirming “for the reasons expressed in the opinion below”).
Another statute applies comparative negligence in strict liability. N.J. Stat. §2A:15-5.1 to 5.3.
New Mexico follows Restatement Third §2. Brooks v. Beech Aircraft Corp., 902 P.2d 54, 62-63 (N.M. 1995) (adopting draft formulation of Restatement Third §2); Morales v. E.D. Etnyre & Co., 382 F. Supp.2d 1278, 1282-83 (D.N.M. 2005) (following final version of Restatement Third §2).
New York follows Restatement Third §2. Scarangella v. Thomas Built Buses, Inc., 717 N.E.2d 679, 681-82 (N.Y. 1999) (as to alternative designs and risk/utility); Tomasino v. American Tobacco Co., 807 N.Y.S.2d 603, 605 (N.Y.A.D. 2005); Miele v. American Tobacco Co., 770 N.Y.S.2d 386, 391 (N.Y.A.D. 2003). Long before the Restatement Third, New York applied “reasonableness” in strict liability and reduced verdicts for plaintiff negligence. Voss v. Black & Decker Manufacturing Co., 450 N.E.2d 204, 208 (N.Y. 1983).
North Carolina doesn’t recognize strict liability at all, so Restatement Third §2 isn’t an issue. N.C. Gen. Stat. §99B-1.1 (“There shall be no strict liability in tort in product liability actions.”). No need to bother in North Carolina.
North Dakota has a product liability statute codifying a consumer expectation definition of defect. N.D. Cent. Code §28-01.3-01(4). This statute would seem to preclude adoption of Restatement Third §2. An alternative design requirement has been recognized by federal courts applying North Dakota law, but state courts are silent. Erling v. American Allsafe Co., 2000 WL 1247863, at*1 (8th Cir. Sept. 5, 2000) (in table at 230 F.3d 1362). By statute, comparative negligence applies in strict liability. N.D. Cent. Code §32-03.2-02.
Common-law product liability is entirely superseded by statute in Ohio. Ohio R.C. §2307.71(B) (OPLA is “intended to abrogate all common law product liability claims or causes of action”). Thus, common-law adoption of Restatement Third §2 is currently impossible. The statute is just as good, though. It mandates multi-factor risk balancing and abolishes consumer expectation as the test for defect. Ohio R.C. §2307.75(B-C). It also imposes a “practical and technically feasible alternative design” requirement. Ohio R.C. §2307.75(E-F). And comparative fault is a defense. Ohio R.C. §2307.711(A).
There’s no discussion in Oklahoma decisions of Restatement Second §2. Current Oklahoma law applies the consumer expectation definition of defect. Kirkland v. General Motors Corp., 521 P.2d 1353, 1362-63 (Okla. 1974). Comparative fault is not recognized in strict liability. Id. at 1366. In our quick rush through the Oklahoma cases we could find no case definitively answering whether alternative designs were a required element or not. All this means that Oklahoma law is not very close to the Third Restatement. As far as we can tell, the recent Oklahoma tort reform bill made no changes to any of the above. Try again guys.
Oregon’s product liability statute expressly codifies Restatement (Second) of Torts §402A (1965). Or. Rev. Stat. §30.900(3) (stating legislative “intent” that act “be construed in accordance with” §402A). Thus, it is currently impossible for Oregon courts to adopt Restatement Third §2, although the legislature could change the statute. The Oregon Supreme Court has considered the act as mandating a consumer expectation test, and not requiring an alternative design. McCathern v. Toyota Motor Corp., 23 P.3d 320, 330-32 (Or. 2001). By statute, a plaintiff’s negligence is comparative fault in strict liability. Or. Rev. Stat. §13.600.
As we discussed above, the situation in Pennsylvania is fluid, with three justices of a 7-menber court on record as supporting Restatement Third §2, and the Third Circuit predicting its adoption in the absence of anything definitive from the Pennsylvania Supreme Court. Current Pennsylvania law also requires alternative designs and risk/utility balancing, although the latter is done by the court, not the jury. Duchess v. Langston Corp., 769 A.2d 1131, 1149 n.24 (Pa. 2001) (alternative design) (citing Restatement Third §3); Phatak v. United Chair Co., 756 A.2d 690, 695 (Pa. Super. 2000) (same); Surace v. Caterpillar, Inc., 111 F.3d 1039, 1044-48 (3d. Cir. 1997) (judge-made risk/utility decisions). Current Pennsylvania law does not allow a plaintiff’s negligence to reduce a strict liability verdict. Kimco Development Corp. v. Michael D’s Carpet Outlets, 637 A.2d 603, 606 (Pa. 1994). We’ll keep pushing for the Third Restatement.
No Puerto Rico case has discussed Restatement Third §2. Puerto Rico, however, generally follows the Restatement of Torts. Mendoza v. Cerveceria Corona, Inc., 97 P.R.R 487, 495-96 (P.R. 1969); Isla Nena Air Services, Inc. v. Cessna Aircraft Co., 380 F. Supp.2d 74, 83 (D.P.R. 2005).
Puerto Rico allows a defect to be proven by either risk/utility or consumer expectation. Rivera v. Superior Packaging., Inc., 132 D.P.R. 115 ¶7 (P.R. 1992); Collazo-Santiago v. Toyota Motor Corp., 149 F.3d 23, 25-26 (1st Cir. 1998). In “complex” design cases, an alternative design has been required. Fremaint v. Ford Motor Co., 258 F. Supp. 2d 24, 26, 29-30 (D.P.R. 2003). Under Puerto Rico law design defect claims have been dismissed where alternative designs are lacking. Ramos v. Philip Morris, Inc., 414 F. Supp.2d 115, 124 (D.P.R. 2005); Prado Alvarez v. R.J. Reynolds Tobacco Co., 313 F. Supp.2d 61, 75 (D.P.R. 2004).
A plaintiff’s negligence is comparative fault in strict liability in Puerto Rico. Montero Saldana v. American Motors Corp., 107 D.P.R. 452, 463-64 (P.R. 1978); Collazo-Santiago, 149 F.3d at 25 (1st Cir. 1998).
Puerto Rico and the Third Restatement would be a reasonably good fit.
In Buonanno v. Colmar Belting Co., 733 A.2d 712, 717-18 (R.I. 1999), the Rhode Island Supreme Court cited Restatement Third §2 and required an alternative design. There was no indication that the court was adopting the rest of §2, which would overrule Rhode Island’s prior adherence to consumer expectations as the test of defect. See Castrignano v. E.R. Squibb & Sons, Inc., 546 A.2d 775, 779 (R.I. 1988). Risk/utility, however, applies to all prescription drugs. Id. at 781.
Comparative negligence/fault applies in strict liability. Fiske v. MacGregor, Division of Brunswick, 464 A.2d 719727 (R.I. 1983). Here’s hoping that the Rhode Island Supreme Court goes the rest of the way and adopts Restatement Third §2.
Last month, in Branham v. Ford Motor Co., ___ S.E.2d ___, 2010 WL 3219499, at *8-10 (S.C. Aug. 16, 2010), the South Carolina Supreme Court adopted the Third Restatement §2, and abolished its consumer expectation test, moving entirely to risk/utility.
South Carolina dropped contributory negligence in favor of comparative negligence in Nelson v. Concrete Supply Co., 399 S.E.2d 783, 784 (S.C. 1991). We haven’t found any cases after that discussing its applicability to strict liability either way and we’re tired of looking.
South Dakota state courts have never mentioned the Third Restatement. In Robinson v. Brandtjen & Kluge, Inc., 500 F.3d 691, 697 (8th Cir. 2007), the court followed Restatement Second §2’s unitary negligence standard of liability.
In First Premier Bank v. Kolcraft Enterprises, Inc., 686 N.W.2d 430, 444-45 (S.D. 2004) (superseded on other grounds), the court approved the substance of jury instructions including an alternative design requirement and a risk/utility test. South Dakota has a comparative “negligence” statute, S.D. Cod. L. §20-9-2, but its applicability to strict liability is an open question. Before the statute, contributory negligence had been held not a defense to strict liability. First Premier, 686 N.W.2d at 453; see Smith v. Smith, 278 N.W.2d 155, 160 (S.D. 1979). South Dakota looks like a good fit for Restatement Second §2.
Tennessee has a product liability statute permitting use of either consumer expectation of risk/utility. Tenn. Code §29-28-102(8). Thus, courts are precluded from adopting Restatement Third §2 to the extent it would conflict with the statute.
Under this language, a Tennessee court rejected the argument that an alternative feasible design “is always required as an element of a plaintiff’s prima facie case.” Potter v. Ford Motor Co., 213 S.W.3d 264, 269 (Tenn. App. 2006) (disagreeing with Martin v. Michelin North America, Inc., 92 F. Supp.2d 745, 753 (E.D. Tenn. 2000), which cited Restatement Third §2 for the proposition). However, the consumer expectation test is “inapplicable, by definition, to certain products about which an ordinary consumer can have no expectation.” Ray v. BIC Corp., 925 S.W.2d 527, 533 (Tenn. 1996); see Brown v. Raymond Corp., 432 F.3d 640, 644 (6th Cir. 2005) (no consumer expectation in forklift design).
A plaintiff’s comparative fault is a defense to strict liability in Tennessee. Whitehead v. Toyota Motor Corp., 897 S.W.2d 684, 693 (Tenn. 1995).
The Texas Supreme Court has adopted Restatement Third §2, lock, stock & barrel. Hernandez v. Tokai Corp., 2 S.W.3d 251, 257-58 (Tex. 1999); General Motors Corp. v. Sanchez, 997 S.W.2d 584, 592 (Tex. 1999); Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 666-67 (Tex. 1999); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 335 (Tex. 1998). Oh, and by the way, a plaintiff’s negligence reduces a strict liability verdict. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 428-29 (Tex. 1984).
Utah has a product liability statute codifying consumer expectations. Utah Code §78B-6-702. Thus, judicial adoption of Third Restatement §2 would seem constrained. However, federal courts applying Utah law have cited §2 and applied an alternative design requirement under the statute. Brown v. Sears, Roebuck & Co., 328 F.3d 1274, 1278-79 (10th Cir. 2003). See Henrie v. Northrop Grumman Corp., 502 F.3d 1228, 1233 (10th Cir. 2007) (alternative design is “essential”); Allen v. Minnstar, Inc., 8 F.3d 1470, 1472 (10th Cir. 1993) (same result pre-statute and pre-Restatement). The Utah Supreme Court has yet to speak to the subject.
Another Utah statute, Utah Code §78B-5-817(2), mandates that all fault is to be compared. Egbert v. Nissan Motor Co., 228 P.3d 737, 746 (Utah 2010).
While the Vermont state courts have not spoken, the court in In re: Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation, 341 F. Supp.2d 386, 402 n.78 (S.D.N.Y. 2004), concluded that the alternative design test of Restatement Third §2 was compatible with Vermont law. No other Vermont state or federal case law appears to have addressed the alternative design question, although generally Vermont follows the consumer expectation defect test. Farnham v. Bombardier, Inc., 640 A.2d 47, 48 (Vt. 1994).
Comparative fault applies in strict liability. Webb v. Navistar International Transportation Corp., 692 A.2d 343, 343-44 (Vt. 1996) (agreeing on result, but not scope or rationale); Smith v. Goodyear Tire & Rubber Co., 600 F. Supp. 1561, 1568 (D. Vt. 1985). The Third Restatement would be something of a change for Vermont, but not extreme – South Carolina was less similar.
There’s no strict liability in Virginia, so the Restatement Third §2 question is basically moot. In non strict liability cases, Virginia requires alternative designs. Tunnell v. Ford Motor Co., 385 F. Supp. 2d 582, 584-85 (W.D. Va. 2005) (citing §2 by analogy); Blevins v. New Holland North America, Inc., 128 F. Supp.2d 952, 959-60 (W.D. Va. 2001) (same); see In re: Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation, 341 F. Supp.2d 386, 402 n.78 (S.D.N.Y. 2004) (finding alternative design test of Restatement Third §2 compatible with Virginia law). We won’t be advocating it, though.
Although a Virgin Islands statute specifically commands that ALI restatements are the law of that territory, V.I. Stat. tit. 1 §4, a couple of trial courts have declined to apply the Third Restatement. Banks v. International Rental & Leasing Corp., 2008 WL 501171, at *3 n.5 (D.V.I. Feb. 13, 2008); In re Manbodh Asbestos Litigation Series, 2005 WL 3487838, at *11 (V.I. Super. Nov. 28, 2005). No appellate court has addressed the issue. Follow the statute, guys; it’s not as hard as you think.
There’s no Virgin Islands law on whether alternative designs are required. Comparative negligence/fault applies in strict liability. Murray v. Fairbanks Morse, Beloit Power Systems, Inc., 610 F.2d 149, 162-63 (3d. Cir. 1979).
Washington has a product liability statute that’s explicitly phrased in terms of “reasonableness,” and contains an express alternative design requirement. Wash. Rev. Code. §7.72.030(1)(a). But the statute also provides for “consider[ation]” of consumer expectations. Id. §7.72.030(3). In Ruiz-Guzman v. Amvac Chemical Corp., 7 P.3d 795, 800 (Wash. 2000), the court cited the alternative design requirement of Restatement Third §2 as supportive of the statutory requirement. However, because of the consumer expectations provision, the Washington Supreme Court has held that alternative designs are not always required. Couch v. Mine Safety Appliances Co., 728 P.2d 585, 589-90 (Wash. 1986).
By statute, all “fault” is to be compared in all tort cases. Wash. Rev. Code. §4.22.070(1).
The Third Restatement is pretty close to the language of the Washington statute, if not necessarily to the statute’s judicial interpretations.
No West Virginia case has applied Restatement Third §2 or any other portion of the Third Restatement. Under West Virginia law, without an alternative design, a prima facie design defect case isn’t stated. Church v. Wesson, 385 S.E.2d 393, 396 (W. Va. 1989) (affirming directed verdict where supposed alternative design wasn’t feasible); Garlinger v. Hardee’s Food Systems, Inc., 16 Fed. Appx. 232, 236 (4th Cir. 2001) (same). West Virginia describes strict liability in terms of “reasonableness” and allows a plaintiff’s negligence to be offset against strict liability. Morningstar v. Black & Decker Manufacturing Co., 253 S.E.2d 666, 683 (W. Va. 1979).
All in all, we’d have to say that Restatement Third §2 is pretty close to the historical contours of West Virginia law, but we’re not holding our breath.
As we discussed above, the situation in Wisconsin seems every bit as fluid as in Pennsylvania. Current Wisconsin law rejects Restatement Third §2 and the risk/utility test in favor of a consumer expectation test initially adopted long ago. Green v. Smith & Nephew AHP, Inc., 629 N.W.2d 727, 739-41 (Wis. 2001) – however, there are those two 2009 concurrences (joined in by four different justices) to consider. Keep trying, guys, and who knows?
As best we can tell, a plaintiff’s comparative fault may be considered in strict liability in Wisconsin. Austin v. Ford Motor Co., 273 N.W.2d 233, 239 (Wis. 1979); Dippel v. Sciano, 155 N.W.2d 55 (Wis. 1967).
Wyoming follows the consumer expectation defect test. Sims v. General Motors Corp., 751 P.2d 357, 364-65 (Wyo. 1988). However, the Wyoming Supreme Court has twice relied upon Restatement Third §2 in enforcing an alternative design requirement. Loredo v. Solvay America, Inc., 212 P.3d 614, 630 (Wyo. 2009); Campbell v. Studer, Inc., 970 P.2d 389, 392 & n.1 (Wyo. 1998). By statute, all culpable conduct “fault” and can be compared in strict liability cases. Wyo. Stat. §1-1-109; Board of County Commissioners v. Bassett, 8 P.3d 1079, 1083-84 (Wyo. 2000). Wyoming’s law is not as far away from the Third Restatement as we might have thought.
Anyway, that’s where we think the states are generally on Restatement Third §2. Being cautious about it (that is, requiring state high court precedent), we count eight takers so far (Georgia, Illinois, Iowa, Nebraska, New Mexico, New York, South Carolina, Texas); five partial takers (Kentucky, Massachusetts, New Jersey, Rhode Island, Wyoming), and six saying “no thanks” (Connecticut, Kansas, Maryland, Missouri, New Hampshire, Wisconsin – although the last may change).
Let us know if you think we screwed up your state.