consumer expectations test in Florida

2016Du Pont De Nemours & Co., 48 So.3d 976 (Fla. 3d DCA 2010), 1 this Court had rejected the Second Restatement’s consumer expectations test and determined that after Kohler Co. v. Marcotte, 907 So.2d 596 (Fla. 3d DCA 2005), 2 the appropriate standard was the risk utility test articulated in the Third Restatement.

2015Restatement (Third) of Torts: Products Liability § 2 cmt. g. (“Under Subsection (b), consumer expectations do not constitute an independent standard for judging the defectiveness of product designs.”); Agrofollajes, 48 So.3d at 996-97 (rejecting the consumer expectations test as an independent basis for finding a design defect in light of this Court’s adoption of the Third Restatement in Kohler).

2020See, e.g., Force v. Ford Motor Co., 879 So. 2d 103 , 109– 10 (Fla. 5th DCA 2004) (concluding that while “there may indeed be products that are too complex for a logical application of the consumer-expectation standard[,]” the consumer expectation standard nonetheless applied to seat belts, which were “on the cusp” of being “too complex for an ordinary consumer to have any expectations concerning their proper operation”); Tillman v. C.R.

2020See McConnell v. Union Carbide Corp., 937 So. 2d 148 , 151 n.4 (Fla. 4th DCA 2006); Force v. Ford Motor Co., 879 So. 2d 103, 107 (Fla. 5th DCA 2004); Adams v. G.

2016Notably, the Supreme Court stressed that this Court’s holding in Aubin I expressly and directly conflicted with its holding in West v. Caterpillar Tractor, Co., 336 So.2d 80 (Fla.1976), and with the Fourth District’s decision in McConnell v. Union Carbide Corp., 937 So.2d 148 (Fla. 4th DCA 2006), disapproved of on other grounds by Aubin v. Union Carbide Corp., 177 So.3d 489 (Fla.2015), both of which applied the consumer expectations test set forth in the Second Restatement as an alternative , theory for design defect under strict products liability.

2015Whether the Third District Erred in Failing to Apply Our Precedent in West We first consider the Third District’s decision to apply the Third Restatement, which expressly and directly conflicts with our holding in West, 336 So.2d 80 , and with the Fourth District’s decision in McConnell, 937 So.2d 148 , both of which applied the consumer expectations test set forth in the Second Restatement as the test for design defect under strict products liability.

2020In Aubin, the Florida Supreme Court declared that “in approaching design defect claims, we adhere to the consumer expectations test, as set forth in the Second Restatement [of Torts], and reject the categorical adoption of the Third Restatement and its reasonable alternative design requirement.” Id. at 510 .

2020Analysis A. The Trial Court Did Not Err in Refusing to Instruct the Jury on the Consumer Expectations Test On appeal, the Plaintiff argues that the trial court was required to instruct the jury on the consumer expectations test under the Florida Supreme Court’s decision in Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015).

2016Cases —Report No. 13-01, 160 So.3d 869, 871 (Fla.2015) (employing both the consumer expectations test and the risk utility test as alternative definitions of design defect).

2015Cases — Report No. 13-01, 160 So.3d 869, 871 (Fla.2015) (approving jury instructions on the consumer expectations test). .

2016On August 21, 2013, this Court affirmed the jury’s verdict in favor of Union Carbide with citation to both Agrofollajes and Union Carbide Corp. v. Aubin, 97 So.3d 886 (Fla. 3d DCA 2012), (“Aubin I”).

2015Id. at 893-94.

2025The Prentice Court agreed with the First District. 338 So. 3d at 842. 11 that the findings were relevant for the consumer expectations test.

2020Motors Corp., 60 S.W.3d 800, 806 (Tenn. 2001). 9 B.

2020See Porter v. Rosenberg, 650 So. 2d 79, 82 (Fla. 4th DCA 1995) (“In many cases the health care provider is in fact more akin to the consumer or user of the product, especially where the product is not transferred to the patient but utilized incidental to the provision of medical services.”); see also Moss v. Wyeth Inc., 872 F. Supp. 2d 162 , 170-71 (D.

2020See Porter v. Rosenberg, 650 So. 2d 79, 82 (Fla. 4th DCA 1995) (“In many cases the health care provider is in fact more akin to the consumer or user of the product, especially where the product is not transferred to the patient but utilized incidental to the provision of medical services.”); see also Moss v. Wyeth Inc., 872 F. Supp. 2d 162 , 170-71 (D.

2020See Middelveen v. Sibson Realty, Inc., 417 So. 2d 275, 277 (Fla. 5th DCA 1982) (“[I]f a party submits a written request for a jury instruction, and it is rejected by the trial court, the issue is preserved for appellate review without more.”). 6 After a four-week trial, the reconstituted jury returned a defense verdict.

2004Their argument is summed up by the following passage from the appellees' answer brief: Perhaps the most significant problem with the consumer-expectations test is *109 that an ordinary consumer of a complex product like an automobile "simply has `no idea' how it should perform in all foreseeable situations, or how safe it should be made against all foreseeable hazards." Soule v. General Motors, 8 Cal.4th 548 , 34 Cal.Rptr.2d 607 , 882 P.2d 298, 308 (1994).

2004Their argument is summed up by the following passage from the appellees' answer brief: Perhaps the most significant problem with the consumer-expectations test is *109 that an ordinary consumer of a complex product like an automobile "simply has `no idea' how it should perform in all foreseeable situations, or how safe it should be made against all foreseeable hazards." Soule v. General Motors, 8 Cal.4th 548 , 34 Cal.Rptr.2d 607 , 882 P.2d 298, 308 (1994).