consumer expectations test in Washington

2021Relevant considerations under the consumer expectations test include “ ‘[t]he relative cost of the product, the gravity of the potential harm from the claimed defect and the cost and feasibility of eliminating or minimizing the risk.’ ” Falk, 113 Wn.2d at 649 (quoting Seattle-First Nat’l Bank v. Tabert, 86 Wn.2d 145, 154 , 542 P.2d 774 (1975)).

2021Relevant considerations under the consumer expectations test include “ ‘[t]he relative cost of the product, the gravity of the potential harm from the claimed defect and the cost and feasibility of eliminating or minimizing the risk.’ ” Falk, 113 Wn.2d at 649 (quoting Seattle-First Nat’l Bank v. Tabert, 86 Wn.2d 145, 154 , 542 P.2d 774 (1975)).

2003Anderson, 79 Wn.

2003Anderson, 79 Wash.App. at 838 , 906 P.2d 336 .

2003Id. at 209, 890 P.2d 469 . [1] Under the risk-utility test, liability can be established by showing that, "at the time of manufacture, the likelihood the product *218 would cause the plaintiff's harm or similar harms, and the seriousness of those harms, outweighed the manufacturer's burden to design a product that would have prevented those harms and any adverse effect a practical, feasible alternative would have on the product's usefulness." Lecy v. Bayliner Marine Corp., 94 Wash. App. 949, 959-60 , 973 P.2d 1110 (1999) (quoting Soproni v. Polygon Apartment Partners, 137 Wash.2d 319, 326 , 97

2002Soproni v. Polygon Apartment Partners, 137 Wn.2d 319, 327 , 971 P.2d 500 (1999).

2003Id. at 209, 890 P.2d 469 . [1] Under the risk-utility test, liability can be established by showing that, "at the time of manufacture, the likelihood the product *218 would cause the plaintiff's harm or similar harms, and the seriousness of those harms, outweighed the manufacturer's burden to design a product that would have prevented those harms and any adverse effect a practical, feasible alternative would have on the product's usefulness." Lecy v. Bayliner Marine Corp., 94 Wash. App. 949, 959-60 , 973 P.2d 1110 (1999) (quoting Soproni v. Polygon Apartment Partners, 137 Wash.2d 319, 326 , 97

2002Soproni v. Polygon Apartment Partners, 137 Wn.2d 319, 327 , 971 P.2d 500 (1999).

2003Id. at 209. 1 Under the risk-utility test, liability can be established by showing that, “at time of manufacture, the likelihood that the product would cause the plaintiff’s harm or similar harms, and the seriousness of those harms, outweighed the manufacturer’s burden to design a product that would have prevented those harms and any adverse effect a practical, feasible alternative would have on the product’s usefulness.” Lecy v. Bayliner Marine Corp., 94 Wn.

2003Id. at 209, 890 P.2d 469 . [1] Under the risk-utility test, liability can be established by showing that, "at the time of manufacture, the likelihood the product *218 would cause the plaintiff's harm or similar harms, and the seriousness of those harms, outweighed the manufacturer's burden to design a product that would have prevented those harms and any adverse effect a practical, feasible alternative would have on the product's usefulness." Lecy v. Bayliner Marine Corp., 94 Wash. App. 949, 959-60 , 973 P.2d 1110 (1999) (quoting Soproni v. Polygon Apartment Partners, 137 Wash.2d 319, 326 , 97

2002Division Two found that while a genuine issue of material fact existed regarding the risk-utility test, no such issue existed related to the consumer expectations test. *495 The court stated that the consumer expectations test could not be met, "where, as here, a manufacturer has adequately warned consumers of the risks associated with using a product." Id. at 583 , 953 P.2d 117 .

2002The court stated that the consumer expectations test could not be met, “where, as here, a manufacturer has adequately warned consumers of the risks associated with using a product.” Id. at 583 .

2000This was in keeping with an earlier common law holding that “[a] plaintiff may . . . establish that a product is unreasonably dangerous by means of factors other than the existence of alternative design.” Connor v. Skagit Corp., 99 Wn.2d 709, 715 , 664 P.2d 1208 (1983) (emphasis added). 7 We did note in Couch, however, that in cases where a plaintiff seeks to prove liability through the use of only one factor, such as the risk-utility test instead of the consumer expectations test, that factor must be established by a preponderance of the evidence.

2000This was in keeping with an earlier common law holding that “[a] plaintiff may . . . establish that a product is unreasonably dangerous by means of factors other than the existence of alternative design.” Connor v. Skagit Corp., 99 Wn.2d 709, 715 , 664 P.2d 1208 (1983) (emphasis added). 7 We did note in Couch, however, that in cases where a plaintiff seeks to prove liability through the use of only one factor, such as the risk-utility test instead of the consumer expectations test, that factor must be established by a preponderance of the evidence.

2000In Couch v. Mine Safety Appliances Co., 107 Wn.2d 232 , 728 P.2d 585 , 78 A.L.R. 4th 139 (1986), we held that “the availability of an alternative, reasonably safe design is not a necessary element of a plaintiffs burden of proof in a product liability action based on defective design.” Id. at 234 (emphasis added).

2000In Couch v. Mine Safety Appliances Co., 107 Wn.2d 232 , 728 P.2d 585 , 78 A.L.R. 4th 139 (1986), we held that “the availability of an alternative, reasonably safe design is not a necessary element of a plaintiffs burden of proof in a product liability action based on defective design.” Id. at 234 (emphasis added).

2000Couch and Connor demonstrate that Washington strict liability analysis is not a one-dimensional, risk-utility test that requires proof of a specific design “defect.” Baughn v. Honda Motor Co., 107 Wn.2d 127, 136 , 727 P.2d 655 (1986) (noting that we do not “deem it necessary to apply the type of risk-utility analysis . . . that specifically requires preliminary proof of ‘something wrong’.”) (quoting Perkins v. F.I.E.

2000Couch and Connor demonstrate that Washington strict liability analysis is not a one-dimensional, risk-utility test that requires proof of a specific design “defect.” Baughn v. Honda Motor Co., 107 Wn.2d 127, 136 , 727 P.2d 655 (1986) (noting that we do not “deem it necessary to apply the type of risk-utility analysis . . . that specifically requires preliminary proof of ‘something wrong’.”) (quoting Perkins v. F.I.E.

2021RTDI disagrees and argues, relying on Heaton v. Ford Motor Co., 248 Or. 467 , 435 P.2d 806 (1967), 8 that expert testimony was required because “[t]he susceptibility of failure of an axle housing that was remanufactured 60 years after its original manufacture and then installed on an amphibious-tour vehicle and used heavily for another 10-plus years simply is not within common knowledge or experience.” But RTDI’s argument fails because RTDI did not manufacture the original axle housing.

2021RTDI disagrees and argues, relying on Heaton v. Ford Motor Co., 248 Or. 467 , 435 P.2d 806 (1967), 8 that expert testimony was required because “[t]he susceptibility of failure of an axle housing that was remanufactured 60 years after its original manufacture and then installed on an amphibious-tour vehicle and used heavily for another 10-plus years simply is not within common knowledge or experience.” But RTDI’s argument fails because RTDI did not manufacture the original axle housing.

2019WE CONCUR: c/...„ 9, 28 For the first time at oral argument, Strout cited Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743 , 389 P.3d 517 (2017), to argue Ply Gem breached the duty to warn the purchaser of the window about the danger of installing the window on the second floor with a low sill.

2019WE CONCUR: c/...„ 9, 28 For the first time at oral argument, Strout cited Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743 , 389 P.3d 517 (2017), to argue Ply Gem breached the duty to warn the purchaser of the window about the danger of installing the window on the second floor with a low sill.

2003Id. at 209, 890 P.2d 469 . [1] Under the risk-utility test, liability can be established by showing that, "at the time of manufacture, the likelihood the product *218 would cause the plaintiff's harm or similar harms, and the seriousness of those harms, outweighed the manufacturer's burden to design a product that would have prevented those harms and any adverse effect a practical, feasible alternative would have on the product's usefulness." Lecy v. Bayliner Marine Corp., 94 Wash. App. 949, 959-60 , 973 P.2d 1110 (1999) (quoting Soproni v. Polygon Apartment Partners, 137 Wash.2d 319, 326 , 97

1986Most jurisdictions that employ the risk-utility approach require that there be something wrong with the product before a risk-utility analysis is permitted. 11 Baughn, however, urges us to adopt the pure form of risk-utility analysis employed by the New Jersey Supreme Court in O'Brien v. Muskin Corp., 94 N.J. 169 , 463 A.2d 298 (1983).

1986Most jurisdictions that employ the risk-utility approach require that there be something wrong with the product before a risk-utility analysis is permitted. 11 Baughn, however, urges us to adopt the pure form of risk-utility analysis employed by the New Jersey Supreme Court in O'Brien v. Muskin Corp., 94 N.J. 169 , 463 A.2d 298 (1983).