Ruiz-Guzman v. Amvac Chemical Corp.

Talmadge, J.

(concurring/dissenting) — I agree with the majority’s answer to the first of the certified questions here, but not its answer to the second question. I write separately to express my concern about the reach of the majority’s analysis, and to reiterate my belief we have ignored the plain language of the Washington product liability act (WPLA), chapter 7.72 RCW.

The majority answers the first question posed to us by the United States Court of Appeals for the Ninth Circuit by indicating a plaintiff may establish a prima facie case that a product’s design is defective for purposes of RCW 7.72.030(l)(a) by proving the existence of an alternate product to the product manufactured by the defendant. The majority holds “a plaintiff may satisfy the requirement of showing an adequate alternative design by showing that other products can more safely serve the same function as the challenged product.” Majority op. at 504-05. I agree.

The majority also notes in footnote 8 the statutory requirement that an adequate alternate design must be shown to be practical and feasible. Again, I agree. “The plaintiff thus bears the burden of demonstrating an alternative design that was practical and feasible.” Philip A. Talmadge, Washington’s Product Liability Act, 5 U. Puget Sound L. Rev. 1 , 9 (1981). 12

My larger concern with the majority’s answers to both questions in this case, however, is that the majority perpetuates and further confuses our law on defective design *513 in product liability law. See, e.g., Soproni v. Polygon Apartment Partners, 137 Wn.2d 319, 333-39 , 971 P.2d 500 (1999) (Talmadge, J., concurring and dissenting).

Ironically, the majority’s analysis of a design defect case employs the traditional risk-utility test that is the essence of the negligence analysis famously set out by Judge Learned Hand in United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) (“if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B < [is less than] PL.”). Yet, the majority continues to adhere to the fiction we first espoused in Falk v. Keene Corp., 113 Wn.2d 645 , 782 P.2d 974 (1989), that the Legislature really did not mean negligence when it used that word in RCW 7.72.030(1) and instead we should employ a strict liability analysis to design defect cases that focuses only on the reasonable safety of the product. Falk, 113 Wn.2d at 651 .

We perpetuate analytical mush when we say on the one hand, as the majority does here, we must analyze the manufacturer’s conduct by balancing the utility and risk of the manufacturer’s design and, on the other hand, say the manufacturer is strictly liable and we must look only to the manufacturer’s product.

The better analysis remains in adherence to the language of RCW 7.72.030(1) on product design. RCW 7.72.030(l)(a) articulates a negligence standard for product design cases. This standard mandates a balancing of the product’s risk and utility. In enacting the WPLA, the Legislature was expressly guided by the principles of the United States Department of Commerce’s Model Uniform Product Liability Act (UPLA):

The Committee has utilized the UPLA as a focal point for its consideration of product liability tort reform, and, to a great extent, the final proposal of the Committee closely adheres to its substance, if not its precise language, in four key areas.

1 Senate Journal, 47th Leg., Reg. Sess. 624 (Wash. 1981). One of those areas was design defect.

*514 The comments to section 104 of the UPLA reveal a negligence standard was appropriate in a design defect case:

The trier of fact is instructed to impose liability if it finds that the product was unreasonably unsafe in design. The trier of fact is also given a formula to assist it in making this determination. The approach has its roots in the law of negligence and has been put into modern and appropriate product liability terminology by some courts in their attempt to resolve the defective design dilemma.

44 Fed. Reg. 62,723 (1979).

The UPLA contained an express provision, section 106, on unavoidably dangerous products. 44 Fed. Reg. 62,727 -28 (1979). The Legislature chose not to incorporate this section into the WPLA undoubtedly because it believed this section to be redundant in light of the formula for design defect articulated in RCW 7.72.030(l)(a). The cases the majority cites for the adoption of comment k to the Restatement (Second) of Torts § 402A (1965) either predate the Legislature’s enactment of the WPLA or neglect to discuss this critical aspect of the WPLA’s history.

I would decline to incorporate comment k to the Restatement (Second) of Torts § 402A into the WPLA when the Legislature expressly declined to do so. I note, moreover, adherence to the analysis of the Restatement (Second) of Torts seems unusual in light of the ferment associated with the advent of the Restatement (Third) of Torts. The law has progressed and our understanding of product liability law has changed and become more explicit.

For instance, section 2 of the Restatement (Third) of Torts (1998) states:

Categories of Product Defect

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:

(a) contains a manufacturing defect when the product de *515 parts from its intended design even though all possible care was exercised in the preparation and marketing of the product;

(b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;

(c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

Subsection (b) concerns design defects. Comment a to section 2 states:

In contrast to manufacturing defects, design defects and defects based on inadequate instructions or warnings are predicated on a different concept of responsibility. In the first place, such defects cannot be determined by reference to the manufacturer’s own design or marketing standards because those standards are the very ones that plaintiffs attack as unreasonable. Some sort of independent assessment of advantages and disadvantages, to which some attach the label “risk-utility balancing,” is necessary. Products are not generically defective merely because they are dangerous. Many product-related accident costs can be eliminated only by excessively sacrificing product features that make products useful and desirable. Thus, the various trade-offs need to be considered in determining whether accident costs are more fairly and efficiently borne by accident victims, on the one hand, or, on the other hand, by consumers generally through the mechanism of higher product prices attributable to liability costs imposed by courts on product sellers.

Subsections (b) and (c), which impose liability for products that are defectively designed or sold without adequate warnings or instructions and are thus not reasonably safe, achieve the same general objectives as does liability predicated on negligence. . . .

*516 In general, the rationale for imposing strict liability on manufacturers for harm caused by manufacturing defects does not apply in the context of imposing liability for defective design and defects based on inadequate instruction or warning. Consumer expectations as to proper product design or warning are typically more difficult to discern than in the case of a manufacturing defect. Moreover, the element of deliberation in setting appropriate levels of design safety is not directly analogous to the setting of levels of quality control by the manufacturer. When a manufacturer sets its quality control at a certain level* it is aware that a given number of products may leave the assembly line in a defective condition and cause injury to innocent victims who can generally do nothing to avoid injury. The implications of deliberately drawing lines with respect to product design safety are different. A reasonably designed product still carries with it elements of risk that must be protected against by the user or consumer since some risks cannot be designed out of the product at reasonable cost.

Most courts agree that, for the liability system to be fair and efficient, the balancing of risks and benefits in judging product design and marketing must be done in light of the knowledge of risks and risk-avoidance techniques reasonably attainable at the time of distribution. To hold a manufacturer liable for a risk that was not foreseeable when the product was marketed might foster increased manufacturer investment in safety. But such investment by definition would be a matter of guesswork. Furthermore, manufacturers may persuasively ask to be judged by a normative behavior standard to which it is reasonably possible for manufacturers to conform. For these reasons, Subsections (b) and (c) speak of products being defective only when risks are reasonably foreseeable.

Comment f to section 2 states, in part:

In sum, the requirement of Subsection (b) that a product is defective in design if the foreseeable risks of harm could have been reduced by a reasonable alternative design is based on the commonsense notion that liability for harm caused by product designs should attach only when harm is reasonably preventable. For justice to be achieved, Subsection (b) should not be construed to create artificial and unreasonable barriers to recovery.

*517 Unmistakably and indisputably, the Restatement (Third) of Torts applies a negligence analysis to design defects, as did the WPLA in 1981, and we should do the same in our decisional law. We should no longer ignore the explicit language of the WPLA and developments in the common law of product liability.

I believe a product manufacturer may argue a product is unavoidably unsafe within the context of the risk/utility balancing of RCW 7.72.030(l)(a). Thus, I would answer the second of the certified questions with a “no.”

Sanders, J., concurs with Talmadge, J.

This is not an academic question in the real world of product liability litigation. Arguably, a bicycle can more safely serve the transportation function of an automobile and an abacus can more safely serve the function of a calculator, but neither serves as a reasonable alternative to the product in question, and neither would enable a plaintiff to establish a prima facie case under RCW 7.72.030(l)(a). A plaintiff establishes a prima facie case under RCW 7.72.030(l)(a) only if the plaintiff sustains the burden of demonstrating the alternate product was a practical alternative to the defendant’s product in the relevant market, and the alternative produce was economically feasible, that is, it could actually be manufactured at a competitive price to the defendant’s product.