Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 9. Liability without Fault?
virtues and vices than the plaintiff. Barker, 573 P.2d at 452. Few courts, if any, followed Barker
in this. See, e.g., Ray v. BIC Corp., 925 S.W.2d 527, 532-33 (Tenn. 1996).
2. Risk-utility and consumer expectations. Other features of Barker have produced
controversy, too. Barker offers the two answers we discussed above to the puzzle of how to
understand when a product is defective for purposes of strict liability determinations under the
Second Restatement’s section 402A. The first is the risk-utility balancing test that compares the
costs and benefits of the challenged design feature. On first glance, this approach might seem to
reproduce the basic cost-benefit reasoning of Learned Hand’s approach to the negligence
standard. But look closely at the end of the Barker opinion: the question, as the Barker court puts
it, is whether in “hindsight” the product’s costs outweigh its benefits. This, as we noted, is an ex
post Learned Hand test, one that asks about the risks and utility of the product in question not
knowing what a reasonable manufacturer would have known at the time of the product’s design,
but knowing what we know now. In this sense, it is not a negligence approach at all, or at least
not a fault-based approach at all, because one can hardly fault a manufacturer for failing to act on
the basis of information that was not reasonably available to it at the time of design and
manufacture. The insight of Barker’s ex post cost-benefit analysis is that the absence of
information at the time of product design may not be sufficient reason to relieve manufacturers of
the costs of their product design decisions. If the manufacturer or designer of the product is in a
better position to generate the kinds of information required to make products safe for consumer
use, perhaps we should adopt the ex post rather than the ex ante view. See, for example, Halphen
v. Johns-Manville Sales Corp., 484 So. 2d 110 (La. 1986), where the Louisiana Supreme Court
deemed a product design defective because “the danger-in-fact of the product, whether
foreseeable or not, outweigh[ed] the utility of the product.” Id. at 114.
The second approach in Barker to determining defectiveness is the consumer expectations
approach that we noted above. If a reasonable consumer would have expected the product to be
safer than it is, then the product is defective for purposes of the strict liability of 402A. This
approach has the virtue of not reproducing the cost-benefit test of the negligence standard (even as
modified in Barker). But its difficulty is that using consumer expectations as the touchstone of an
analysis designed around the premise of consumers’ relative ignorance in the marketplace seems
perverse. If there are product designs that could have made a product safer, why should we
expect consumers to know about them rather than a manufacturers’ expert engineers and
designers?
What have the courts done? Some courts have refused to take up the cost-benefit test’s
invitation to “open-ended balancing” of risk and utility. The Montana Supreme Court, for
instance, rejected the cost-benefit analysis and held that if a design fails the consumer expectation
test, then “strict liability may be imposed even if the seller has ‘exercised all possible care,’ and
even though the product was faultlessly manufactured.” Malcolm v. Evenflo Co., 217 P.3d 514,
520 (Mont. 2009).
A number of courts have stuck with a test “centered on the reasonable expectations of the
ordinary consumer.” Connor v. Skagit Corp., 638 P.2d 115 (Wash. 1981); Massey v. Conagra
Foods, Inc., 328 P.3d 456 (Idaho 2014). But even here, some courts insist that we have not
completely left costs and benefits behind. These courts insist that consumer expectations are the
critical question, but regard risk and utility as “a guide in determining the expectations of
consumers in complex cases.” Delaney v. Deere & Co., 999 P.2d 930, 944 (Kan. 2000). How
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