Strict Products Liability Restored: The Florida Supreme Court Definitively Rules that the Second Restatement is Still the Law in Florida
Newsome Melton, P.A.
Florida consumers won a major victory when the Florida Supreme Court adopted the Second Restatement’s doctrine of strict products liability in 1976. This victory was in peril over the last several years, however, as the Third District Court of Appeal unilaterally adopted the Third Restatement’s radically different version of “strict” products liability—a version designed for the specific purpose of shifting the costs of injuries away from manufacturers and back onto consumers.
The Florida Supreme Court set the record straight in its October 29, 2015 decision in Aubin v. Union Carbide Corp., definitively ruling that the Second Restatement remains the law in Florida. This article will provide a brief overview of the history of strict products liability in Florida, highlight the key differences between the Second and Third Restatements, and analyze the significant impact Aubin will have for consumers and practitioners.
West v. Caterpillar and the Second Restatement of Torts
The Florida Supreme Court originally adopted the Second Restatement’s doctrine of strict products liability in the seminal 1976 West v. Caterpillar Tractor Co. decision, proclaiming: “The cost of injuries or damages, either to persons or property, resulting from defective products, should be borne by the makers of the products who put them into the channels of trade, rather than by the injured or damaged persons who are ordinarily powerless to protect themselves.”[1]
The definition of the term “defect” plays a pivotal role in how a plaintiff establishes a claim for strict products liability. Significantly, the Second Restatement defines the term “defect” to refer to a product sold “in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.”[2] This definition of defect has come to be known as the “consumer expectations test.”[3]
In the nearly four decades that have transpired since the West decision was issued, the Florida Supreme Court has never receded from its adoption of the Second Restatement’s doctrine of strict products liability. Instead, the Court has consistently expanded the doctrine, extending the reach of strict products liability to different types of businesses, and rejecting arguments and defenses which would have conflicted with the policy goals described in West.[4]
The Third Restatement and the Third District Court of Appeal
In the 1990s, the American Law Institute published the Third Restatement of Torts. The drafters of the Third Restatement presented a radically altered version of products liability, claiming that “various trade-offs need to be considered in determining whether accident costs are more fairly and efficiently borne by accident victims.”[5] In order to achieve their desired balancing of “trade-offs,” the Third Restatement’s authors eliminated the consumer expectations test altogether. In its place, they added a new definition of “design defect,” which is commonly referred to as the “risk-utility test.”[6]
The Third Restatement’s definition of design defect “materially increases the plaintiff’s burden by requiring that the plaintiff show not only that the product fails a risk-utility test, but also that an alternative feasible design existed at the time of manufacture and that the manufacturer should have used that alternative design.”[7] Scholars have found the Third Restatement’s change to the risk-utility test to be reflective of a pro-manufacturer tilt in the Third Restatement.[8] In fact, one author went so far as to describe the Third Restatement’s brand of products liability as being “a wish list from manufacturing America.”[9]
The Florida Supreme Court never adopted the Third Restatement. As such, West and the Second Restatement have been the law of this state for approximately four decades. Unsurprisingly, then, Florida’s Fourth and Fifth District Courts of Appeal specifically rejected attempts to apply the Third Restatement’s risk-utility test instead of the Second Restatement’s consumer expectations test.[10] However, the Third District Court of Appeal relied upon the Third Restatement in overturning a verdict against a manufacturer in its 2005 decision in Kohler Co. v. Marcotte.[11] Notably, the Kohler court offered no explanation for its reliance upon the Third Restatement.[12]
Subsequently, in 2010, the Third District Court of Appeal once again overturned a products liability verdict in Agrofollajes, S.A. v. E.I. Du Pont De Nemours & Co., Inc., holding that the trial court committed reversible error by instructing the jury that it could find the product was “defective using either the ‘consumer expectation’ or the ‘risk-utility/risk-benefit’ tests.”[13] In support of its holding, the Third District simply stated that it had previously “applied the Third Restatement in [Kohler],” and that the Third Restatement “rejects the ‘consumer expectations test as an independent basis for finding a design defect.”[14]
Remarkably, the instruction given by the trial court in Agrofollajes perfectly followed the pattern jury instructions, which to this very day allow for a jury to find a product defective pursuant to either the consumer expectations test or the risk-utility test.[15] This fact was noted by Justice Pariente in her 2012 concurrence to the Florida Supreme Court’s opinion preliminarily approving the revised products liability jury instructions.[16] In her concurrence, she lamented the Court’s decision not to accept jurisdiction over Agrofollajes, stating:
I hope that we will have the opportunity in the near future to clarify the law regarding the proper definition of design defect and whether the definition varies depending on the type of product involved. I would urge the appellate courts to bring this issue to our attention by way of a certified question of great public importance in the appropriate case.[17]
The Florida Supreme Court did not have to wait long to clarify the law on design defect. Later that same year, the Third District overturned a $6.6 million verdict in favor of William Aubin, a laborer who developed mesothelioma several decades after being exposed to Union Carbide’s asbestos products.[18] Citing to its decisions in Kohler and Agrofollajes, the Third District held that the trial court committed reversible error by instructing the jury in accordance with the consumer expectations test.[19]
The Florida Supreme Court Sets the Record Straight
On October 29, 2015, the Florida Supreme Court issued its Aubin v. Union Carbide Corp. decision authored by Justice Pariente, overturning the Third District Court of Appeal and re-affirming Florida’s status as a Second Restatement state.[20] In coming to this result, the Court observed:
The important aspect of strict products liability that led to our adoption in West remains true today: the burden of compensating victims of unreasonably dangerous products is placed on the manufacturers, who are most able to protect against the risk of harm, and not on the consumer injured by the product. Increasing the burden for injured consumers to prove their strict liability claims for unreasonably dangerous products that were placed into the stream of commerce is contrary to the policy reason behind the adoption of strict liability in West.[21]
In addition, the Court also noted that the consumer expectations test fairly reflects the reality that the “manufacturer plays a pivotal role in crafting the image of a product and establishing the consumers’ expectations for that product, a portrayal which in turn motivates consumers to purchase that particular product.”[22] Accordingly, the Court continued, “the consumer expectations tests thus rightly focuses on the expectations that a manufacturer creates,” whereas “[t]he Third Restatement’s risk utility test shifts away from this focus and, in fact, imposes a higher burden on consumers to prove a design defect than exists in negligence cases—the exact opposite of the purposes of adopting strict products liability in the first place.”[23]
Of course, evidence pertaining to the existence or availability of reasonable alternative designs may prove helpful to the finder of fact in certain cases. Aubin recognizes the possible relevance of such evidence, holding that the parties may still present evidence regarding the risks and utility of the product, as well as the existence and availability of reasonable alternative designs.[24] However, in doing so, the court was careful to specify “that the plaintiff is not required, but is permitted, to demonstrate the feasibility of an alternative safer design,” explaining that “allowing evidence of a reasonable alternative design is different than mandating evidence of a reasonable alternative design as part of the plaintiff’s burden of proof . . . .”[25]
What Aubin Means for Florida’s Consumers and Practitioners
Aubin will have an immediate practical impact in active cases. Before October 29, 2015, plaintiffs litigating products liability claims in cases falling under the jurisdiction of the Third District Court of Appeal were forced to prove their cases under a significantly heightened burden of proof when compared to plaintiffs everywhere else in the state. Aubin levels the playing field by ensuring that all products liability plaintiffs share the same burden of proof.
Moreover, the Florida Supreme Court adopted new products liability jury instructions in March 2015. The revised instructions retained both the consumer expectations and risk-utility tests as alternative, independent bases for finding a product defective.[26] Of course, Aubin was still pending before the Florida Supreme Court when the instructions were being drafted. As a result, the Committee noted that, “pending further development in the law,” it took “no position” as to whether the risk-utility test should be included as a basis for finding a product to be defective, or instead as an affirmative defense.[27] The Committee further noted that it took “no position on whether both the consumer expectations and risk/benefit tests should be given alternatively or together.”[28]
Aubin references the revised instructions, noting that they retain the consumer expectations test and risk-utility test as “alternative” definitions for defect.[29] The Court goes on to state that it “does not direct, at this point, whether the standard jury instructions should be modified in light of this opinion.”[30] However, the Court immediately clarifies that: “The parties may, in proving or defending against such claims, present evidence that a reasonable alternative design existed and argue whether the benefit of the product’s design outweighed any risks of injury or death caused by the design.”[31] This critical clarification is consistent with the remainder of the Aubin opinion, which makes it clear that: (1) the consumer expectations test is the proper standard for determining whether a product is defective; and (2) evidence of alternative designs and the risks and benefits of a product may be presented in support or in defense of a claim governed by the consumer expectations test.
It is important to note that Aubin did not limit the applicability of the consumer expectations test in any manner. In the past, products liability defendants had advanced arguments that, even assuming the consumer expectations test is proper in cases involving relatively “simple” products, it could not be applied in cases involving “complex” products. According to these defense arguments, consumers are simply unable to form reasonable expectations regarding the performance characteristics of “complex” products, and as such, the plaintiff must demonstrate that a “complex” product’s risks outweigh its utility. In fact, this was the exact argument advanced by the defendant in Agrofollajes, as the Third District Court of Appeal noted that the trial court had given a consumer expectations instruction “over Du Pont’s objection that the ‘consumer expectation test’ could not be used as an independent basis for finding a product defective, especially in the case of a complex product like Benlate.”[32]
The argument that some products are “too complex” for the consumer expectations test is now dead in the water in Florida. Aubin overruled the Third District Court of Appeal’s decision in Agrofollajes, in which the defendant made this exact same argument. Additionally, Aubin rejected the Third Restatement in large part because it “blurs the distinction between strict products liability claims and negligence claims” by “departing from the consumer expectations test . . . instead focusing on the foreseeability of the risk of harm, including a cost-benefit analysis.”[33] In doing so, Aubin determined that the consumer expectations test is the “linchpin of the Second Restatement,” explaining that the test “intrinsically recognizes a manufacturer’s central role in crafting the image of a product and establishing the consumers’ expectations for that product—a portrayal which in turn motivates consumers to purchase that particular product.”[34] As a result, Aubin has firmly and correctly equated the doctrine of strict products liability with the consumer expectations test, shutting the door on any argument that the standard should not be applied in a strict products liability case.
Ultimately, Aubin reflects a proper degree of trust and respect for Florida’s juries to come to the right determinations and to carry out the public policy goals described in West. Both plaintiffs and defendants will be able to present evidence concerning alternative designs or a product’s risks and benefits, to the extent such evidence is probative and admissible. The presentation of such evidence will not, however, change the question posed to the jury. Instead, juries deciding products liability cases throughout the state will now be focused on the correct question—whether the product was sold in an unreasonably dangerous condition which was not contemplated by the consumer.
Conclusion
By re-affirming the applicability of the consumer expectations test and the Second Restatement, the Florida Supreme Court wisely ensured a consistent and fair application of products liability law throughout the state. Before October 29, 2015, products liability plaintiffs in cases falling under the jurisdiction of the Third District Court of Appeal were forced to litigate under a far more onerous burden than those located elsewhere in the state. Likewise, litigants throughout the state were previously faced with the prospect that defendants may convince the trial judge that the product at issue in their case was simply “too complex” for the application of the consumer expectations test. Aubin sets the record straight: the consumer expectations test governs products liability cases in the state of Florida. This outcome levels the playing field, and ultimately reflects a proper degree of trust and respect for Florida’s juries to make the right decision and to effectuate the public policy goals adopted by the Florida Supreme Court four decades ago in West.
[1] West v. Caterpillar Tractor Co., Inc., 336 So. 2d 80, 92 (Fla. 1976).
[2] Restatement (Second) of Torts § 402A, cmt. c (1965).
[3] Aubin v. Union Carbide Corp., SC12-2075, 2015 WL 6513924, at *1 (Fla. 2015).
[4] Aubin v. Union Carbide Corp., SC12-2075, 2015 WL 6513924, at *10 (Fla. 2015).
[5] Restatement (Third) of Torts: Prods. Liab. § 2 (b) cmt. a (1998).
[6] Restatement (Third) of Torts: Prods. Liab. § 2 (b) (1998).
[7] Ellen Wertheimer, The Smoke Gets in Their Eyes: Product Category Liability and Alternative Feasible Designs in the Third Restatement, 61 Tenn. L. Rev. 1429, 1430 (1994). Although this article was written while the Third Restatement was still a “tentative draft,” the definition of design defect in that draft was substantively the same as the definition in the final version. Compare Id. at 1430 n. 2 with Restatement (Third) of Torts: Prods. Liab. § 2 (b) (1998).
[8] See, e.g., Ellen Wertheimer, The Biter Bit: Unknowable Dangers, The Third Restatement, and the Reinstatement of Liability Without Fault, 70 Brooklyn L. Rev. 889, 927 (2005); Frank J. Vandall, Constructing a Roof before the Foundation is Prepared: The Restatement (Third) of Torts: Products Liability Section 2(b) Design Defect, 30 U. Mich. J.L. Reform 261 (1997).
[9]Id.
[10] Force v. Ford Motor Co., 879 So. 2d 103, 106 (Fla. 5th DCA 2004); McConnell v. Union Carbide Corp., 937 So. 2d 148, 152 (Fla. 4th DCA 2006) disapproved of on other grounds by Aubin v. Union Carbide Corp., SC12-2075, 2015 WL 6513924 (Fla. 2015).
[11] 907 So. 2d 596, 599 (Fla. 3d DCA 2005) disapproved of by Aubin v. Union Carbide Corp., SC12-2075, 2015 WL 6513924 (Fla. 2015)
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] In re Standard Jury Instructions in Civil Cases–Report No. 09-10 (Products Liab.), 91 So. 3d 785, 789 (Fla. 2012)
[17]Id.
[18] Union Carbide Corp. v. Aubin, 97 So. 3d 886, 893 (Fla. 3d DCA 2012) decision quashed, SC12-2075, 2015 WL 6513924 (Fla. 2015).
[19] Union Carbide Corp. v. Aubin, 97 So. 3d 886, 893 (Fla. 3d DCA 2012) decision quashed, SC12-2075, 2015 WL 6513924 (Fla. 2015).
[20] Id.
[21] Aubin v. Union Carbide Corp., SC12-2075, 2015 WL 6513924, at *17 (Fla. 2015).
[22] Id.
[23] Id.
[24] Id. at * 18.
[25] Id. at *18-19.
[26] In re Standard Jury Instructions in Civil Cases–Report No. 13-01 (Products Liab.), 160 So. 3d 869, 874 (Fla. 2015).
[27] Id.
[28] In re Standard Jury Instructions in Civil Cases–Report No. 13-01 (Products Liab.), 160 So. 3d 869, 874 (Fla. 2015).
[29] Aubin v. Union Carbide Corp., SC12-2075, 2015 WL 6513924, at *19 (Fla. 2015).
[30] Aubin v. Union Carbide Corp., SC12-2075, 2015 WL 6513924, at *19 (Fla. 2015)
[31] Id.
[32] Agrofollajes, S.A. v. E.I. Du Pont De Nemours & Co., Inc., 48 So. 3d 976, 997 (Fla. 3d DCA 2010) (emphasis added).
[33] Aubin v. Union Carbide Corp., SC12-2075, 2015 WL 6513924, at *13 (Fla. 2015)
[34] Id.