13-1407. Strict products liability; unreasonable risk of injury.
An unreasonable risk of injury is a risk which a reasonably prudent person having full knowledge of the risk would find unacceptable. This means that a product does not present an unreasonable risk of injury simply because it is possible to be harmed by it.
[The design of a product need not necessarily adopt features which represent the ultimate in safety. You should consider the ability to eliminate the risk without seriously impairing the usefulness of the product or making it unduly expensive.]
Under products liability law, you are not to consider the reasonableness of acts or omissions of the supplier. You are to look at the product itself and consider only the risks of harm from its condition or from the manner of its use at the time of the injury. [The question for you is whether the product was defective, even though the supplier could not have known of such risks at the time of supplying the product.]
DIRECTIONS FOR USE
This is the basic instruction defining "unreasonable risk of injury" and, except where misrepresentation is the only theory of recovery, must be used in every set of strict products liability instructions in lieu of "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it with the ordinary knowledge common to the community as to its characteristics".
The bracketed paragraph two shall be given only if plaintiff contends that the product's design presents an unreasonable risk of injury.
The bracketed sentence in paragraph three shall always be given if plaintiff contends that the product when supplied, contained a production flaw which was a cause of injury. As discussed under the last paragraph of the committee comment below, the trial judge will determine, based upon developing law, whether the final sentence of this instruction is also applicable to products cases alleging inadequate design or warning.
COMMITTEE COMMENT
Criteria for determining whether a risk of injury is unreasonable have not been provided in the instruction because the committee feels this falls within the unique domain of advocacy under the circumstances of proof in each case. Design, formulation, warning, safety device and unavoidably unsafe product cases present greater latitude for argument than does the production flaw which the reasonably prudent person would generally be expected to find unacceptable when known. In his article, "The Nature of Strict Tort Liability for Products", 44 Miss. L.J. 825, 837-38 (1973), Professor Wade suggests seven risk-benefit criteria: (1) the usefulness and desirability of the product (see UJI 13-1419); (2) the availability of other and safer products to meet the same need (see UJI 13-1408); (3) the likelihood of injury and its probable seriousness, i.e., "risk" (see UJI 13-1407); (4) the obviousness of the danger (see UJI 13-1412 and 13-1415); (5) common knowledge and normal public expectation of the danger (particularly for established products) (see UJI 13-1403, 13-1406 and 13-1418); (6) the avoidability of injury by care in use of the product (including the effect of instructions or warnings) (see UJI 13-1403, 13-1415 and 13-1418) and (7) the ability to eliminate the danger without seriously impairing the usefulness of the product or making it unduly expensive (see UJI 13-1407). Reyes v. Wyeth Labs., 498 F.2d 1264, 1274 (5th Cir.), cert. denied, 419 U.S. 1096, 95 S. Ct. 687, 42 L. Ed. 2d 688 (1974).
The "unreasonably dangerous" test and other negligence vestiges of strict products liability have come under attack. In Glass v. Ford Motor Co., 123 N.J. Super. 599, 304 A.2d 562 (1973), following Cronin v. J.B.E. Olson Corp., 8 Cal. 3d 121, 104 Cal. Rptr. 433, 501 P.2d 1153 (1972), the court held that the additional element of "unreasonable danger" is not a valid part of the concept of strict liability in tort. The Supreme Court of New Mexico has noted that a single definitional concept should be used and separate proof of defectiveness and unreasonable danger is not required. Rudisaile v. Hawk Aviation, Inc., 92 N.M. 575, 577, 592 P.2d 175, 177 (1979). The New Jersey superior court would instruct that the supplier is liable if the product was unsafe and the plaintiff was a reasonably foreseeable user. California would instruct that the supplier is liable to a person injured while using a product in an intended way as a result of a "defect" in the product.
The committee, however, is in sympathy with the approach that "[a] product is defective if it is unreasonably dangerous as marketed. It is unreasonably dangerous if a reasonable person would conclude that the magnitude of the scientifically perceivable danger as it is proved to be at the time of the trial outweighed the benefit of the way the product was so designed and marketed". P. Keeton, Product Liability and the Meaning of a Defect, 5 St. Mary's L.J. 30, 37-8 (1973) (original emphasis). Dean Keeton maintains there is no way to avoid a risk-benefit calculation in products liability cases. Id. at 39. The way to remedy the problem inherent in foreseeability is to supply knowledge as a matter of law, even if the defect was scientifically unknowable at the time of manufacture, and to allow the jury to decide if the ordinary person would have put the product on the market as designed. 48 Tex. L. Rev. 398, 403-4 (1970).
Keyed to the rationale of the Supreme Court of Oregon, the committee chose a prudent person standard of "unreasonable risk of injury" rather than the user-oriented language of Restatement (Second) of Torts § 402A, comment i (1966), discussed in Rudisaile v. Hawk Aviation, Inc., supra.
"To elucidate this point further, we feel that the two standards are the same because a seller acting reasonably would be selling the same product which a reasonable consumer believes he is purchasing". That is to say, a manufacturer who would be negligent in marketing a given product, considering its risks, would necessarily be marketing a product which fell below the reasonable expectations of consumers who purchase it. The foreseeable uses to which a product could be put would be the same in the minds of both the seller and the buyer unless one of the parties was not acting reasonably. The advantage of describing a dangerous defect in the manner of Wade and Keeton is that it preserves the use of familiar terms and thought processes with which courts, lawyers and jurors customarily deal.
"While apparently judging the seller's conduct, the test set out above would actually be a characterization of the product by a jury. If the manufacturer was not acting reasonably in selling the product, knowing of the risks involved, then the product would be dangerously defective when sold and the manufacturer would be subject to liability". Phillips v. Kimwood Mach. Co., 269 Or. 485, 525 P.2d 1033, 1037 (1974).
The supplier of a product which is defective by reason of a latent production flaw is universally held liable under strict products liability notwithstanding the fact that by inspection, testing, X-ray or any other means known to science at the time the product was placed on the market, it was not possible to know of the unreasonable risk of injury. Stang v. Hertz Corp., 83 N.M. 730, 497 P.2d 732 (1972) (rented tire defective because of impact damage which was not discoverable by normal inspection procedures). While it may be an illogical inconsistency to hold that an unreasonably dangerous design or inadequate warning can give rise to strict products liability based only on what the supplier could reasonably know at the time the product was placed on the market, the New Mexico Supreme Court has not yet addressed this issue in a design or warning case. The last bracketed sentence of this instruction will always be applicable to the production flaw case. In design and warning cases the trial judge will have to decide this issue applying the principles of Stang v. Hertz Corp., supra, until a decision is made by the Supreme Court.