risk-utility analysis in New Jersey

2000As one court observed: Although there are seven listed factors in the classical statement of the risk-utility analysis, see Cepeda v. Cumberland Eng’g Co., 76 N.J. 152, 174 , 386 A.2d 816 (1978) and its progeny, the prevalent view is that, unless one or more of the other factors might be relevant in a particular’ case, the issue upon which most claims will turn is the proof by plaintiff of a “reasonable alternative design ... the omission ... [of which] renders the product not reasonably safe.” [Green v. General Motors Corp., 310 N.J.Super. 507, 517-18 , 709 A.2d 205 (App.Div.1998) (quoting th

2000As one court observed: Although there are seven listed factors in the classical statement of the risk-utility analysis, see Cepeda v. Cumberland Eng’g Co., 76 N.J. 152, 174 , 386 A.2d 816 (1978) and its progeny, the prevalent view is that, unless one or more of the other factors might be relevant in a particular’ case, the issue upon which most claims will turn is the proof by plaintiff of a “reasonable alternative design ... the omission ... [of which] renders the product not reasonably safe.” [Green v. General Motors Corp., 310 N.J.Super. 507, 517-18 , 709 A.2d 205 (App.Div.1998) (quoting th

2017The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance. [Ibid.] A risk-utility analysis ordinarily involves "the consideration of available alternatives." Id. at 184 ; see also Restatement (Third) of Torts: Products Liability § 2(b) (1998).

2017The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance. [Ibid.] A risk-utility analysis ordinarily involves "the consideration of available alternatives." Id. at 184 ; see also Restatement (Third) of Torts: Products Liability § 2(b) (1998).

1998See Freund v. Cellofilm Properties, Inc., 87 N.J. 229 , 238 n. 1, 432 A.2d 925 (1981) (explaining the risk-utility analysis).

1998See Freund v. Cellofilm Properties, Inc., 87 N.J. 229 , 238 n. 1, 432 A.2d 925 (1981) (explaining the risk-utility analysis).

2017Super. 533, 546 (App. Div.), certif. denied, 145 N.J. 374 (1996)). 1 An evaluation of the seven factors identified in O'Brien "may justify a conclusion that even though there is presently no alternative design which would make a product safer, the product is 'so dangerous and of such little use that under the risk-utility analysis [the] manufacturer [should] bear the cost of liability of harm to others.'" Smith v. Keller Ladder Co., 275 N.J.

2017Super. 533, 546 (App. Div.), certif. denied, 145 N.J. 374 (1996)). 1 An evaluation of the seven factors identified in O'Brien "may justify a conclusion that even though there is presently no alternative design which would make a product safer, the product is 'so dangerous and of such little use that under the risk-utility analysis [the] manufacturer [should] bear the cost of liability of harm to others.'" Smith v. Keller Ladder Co., 275 N.J.

1998This burden includes the duty to prove under a risk-utility analysis "the existence of an alternative design that is both practical and feasible." Id. at 571 , 715 A. 2d 967 ; see also Macri v. Ames McDonough Co., 211 N.J.Super. 636, 641 , 512 A. 2d 548 (App.Div.1986); N.J.S.A. 2A:58C-3(a)(1) (instructing that a manufacturer may not be held liable "if ... [a]t the time the product left the control of the manufacturer there was not a practical and feasible alternative design" that would have prevented the harm).

1998This burden includes the duty to prove under a risk-utility analysis "the existence of an alternative design that is both practical and feasible." Id. at 571 , 715 A. 2d 967 ; see also Macri v. Ames McDonough Co., 211 N.J.Super. 636, 641 , 512 A. 2d 548 (App.Div.1986); N.J.S.A. 2A:58C-3(a)(1) (instructing that a manufacturer may not be held liable "if ... [a]t the time the product left the control of the manufacturer there was not a practical and feasible alternative design" that would have prevented the harm).

2014Indisputably, a warning would have lessened exposure and avoided countless injuries. [Ibid. (quoting Campolongo v. Celotex Corp., 681 F. Supp. 261, 264 (D.N.J. 1988)).] Mindful that the purpose of a warning is to reduce the risk of a product "to the greatest extent possible without hindering its utility," Beshada, supra, 90 N.J. at 201 , we also assume that the cost of including a warning when the pump is originally marketed would have "but a slight impact on the risk-utility analysis, since such cost would generally have little, if any, effect on a product's utility," Campos, supra, 98 N.J. a

2014Indisputably, a warning would have lessened exposure and avoided countless injuries. [Ibid. (quoting Campolongo v. Celotex Corp., 681 F.Supp. 261, 264 (D.N.J.1988)).] Mindful that the purpose of a warning is to reduce the risk of a product “to the greatest extent possible without hindering its utility,” Beshada, supra, 90 N.J. at 201 , 447 A.2d 539 , we also assume that the cost of including a warning when the pump is originally marketed would have “but a slight impact on the risk-utility analysis, since such cost would generally have little, if any, effect on a product’s utility,” Campos, sup

2002A plaintiff who asserts a design defect products liability claim “must prove under a risk-utility analysis the existence of an alternative design that is both practical and feasible.” Lewis v. American Cyanamid Co., 155 N.J. 544, 571 , 715 A.2d 967 (1998); see also id. at 560 , 715 A.2d 967 ; Cavanaugh v. Skil Corp., 164 N.J. 1, 8-9 , 751 A.2d 518 (2000); Fiorino v. Sears Roebuck & Co., 309 N.J.Super. 556 , 565 n. 3, 707 A.2d 1053 (App.Div.1998).

2002A plaintiff who asserts a design defect products liability claim “must prove under a risk-utility analysis the existence of an alternative design that is both practical and feasible.” Lewis v. American Cyanamid Co., 155 N.J. 544, 571 , 715 A.2d 967 (1998); see also id. at 560 , 715 A.2d 967 ; Cavanaugh v. Skil Corp., 164 N.J. 1, 8-9 , 751 A.2d 518 (2000); Fiorino v. Sears Roebuck & Co., 309 N.J.Super. 556 , 565 n. 3, 707 A.2d 1053 (App.Div.1998).

1999See, e.g., Johansen v. Makita USA, Inc., 128 N.J. 86, 101 , 607 A. 2d 637 (1992) (noting that "[b]ecause the risk-utility analysis is based on the premise that a product is defective if it is dangerous when marketed, the post-marketing conduct of one plaintiff cannot inform that determination").

1999See, e.g., Johansen v. Makita USA, Inc., 128 N.J. 86, 101 , 607 A. 2d 637 (1992) (noting that "[b]ecause the risk-utility analysis is based on the premise that a product is defective if it is dangerous when marketed, the post-marketing conduct of one plaintiff cannot inform that determination").

1998Jurado, supra, 131 N.J. at 375 , 619 A.2d 1312 ; Johnson v. Salem Corp., 97 N.J. 78, 88 , 477 A.2d 1246 (1984); O’Brien v. Muskin Corp., 94 N.J. 169, 181-82 , 463 A.2d 298 (1983).

1994Corp., 98 N.J. 137, 153-54 , 484 A.2d 1225 (1984) (“[I]t is the jury that must * * * determine whether th[e] duty [to manufacture a product that is suitably safe for its intended or anticipated purposes under the risk-utility standard] has been breached.”); Johnson v. Salem Corp., 97 N.J. at 78, 89 , 477 A.2d 1246 (“Ordinarily the jury should be permitted to determine whether ‘the risks of injury so outweighed the utility of the product as to constitute a defect.’ ” (quoting O’Brien, supra, 94 N.J. at 184 , 463 A.2d 298 )).

2014Indisputably, a warning would have lessened exposure and avoided countless injuries. [Ibid. (quoting Campolongo v. Celotex Corp., 681 F.Supp. 261, 264 (D.N.J.1988)).] Mindful that the purpose of a warning is to reduce the risk of a product “to the greatest extent possible without hindering its utility,” Beshada, supra, 90 N.J. at 201 , 447 A.2d 539 , we also assume that the cost of including a warning when the pump is originally marketed would have “but a slight impact on the risk-utility analysis, since such cost would generally have little, if any, effect on a product’s utility,” Campos, sup

2014Indisputably, a warning would have lessened exposure and avoided countless injuries. [Ibid. (quoting Campolongo v. Celotex Corp., 681 F.Supp. 261, 264 (D.N.J.1988)).] Mindful that the purpose of a warning is to reduce the risk of a product “to the greatest extent possible without hindering its utility,” Beshada, supra, 90 N.J. at 201 , 447 A.2d 539 , we also assume that the cost of including a warning when the pump is originally marketed would have “but a slight impact on the risk-utility analysis, since such cost would generally have little, if any, effect on a product’s utility,” Campos, sup

2020Gear Works, 131 N.J. 375, 385-86 (1993) (emphasis added) (citations omitted).] We recognize the Notes to the Model Jury Charges advise that in a design defect case, generally the court should provide the jury with either the charge on "reasonably safe design" or "risk utility," but not both.

2020However, the Notes go on to say the trial court may issue the reasonably safer charge but may also "use the additional risk-utility factors only if the case is unusual in that it requires one or more of these additional elements." Ibid.

2000We concluded that under a risk-utility analysis, “[e]videnee of prior similar accidents is relevant and should be admissible as evidence of the risk, or lack thereof, of a product.” Ibid.

1996Information compiled and used by members of the swimming-pool industry, including the safety boards for that trade, concerning frequency of serious injuries resulting from diving accidents is precisely the kind of information that might assist a jury in determining the safety of the product. [Id. at 290, 579 A.2d 1241 .] The Court also discussed the foundation required for the admission of survey information regarding accident history and frequency.

1996I am instructing you regarding this statute only insofar as it may assist you in applying this risk utility test that I’ve referred to in determining whether there was a design defect in the motor vehicle. [Id. at 492, 630 A.2d 308 .] We reversed.

1996I am instructing you regarding this statute only insofar as it may assist you in applying this risk utility test that I've referred to in determining whether there was a design defect in the motor vehicle. [ Id. at 492 , 630 A. 2d 308 .] We reversed.

2022In its ruling, the trial court noted first that both parties relied on Becker v. Baron Bros., 138 N.J. 145, 159 (1994), wherein the Supreme Court ruled that trial courts had to perform a risk utility analysis as to the specific product that was alleged to be defective.

2020Transit Rail Operations, Inc., 330 N.J.

2020Rocco, 330 N.J.

1994Corp., 98 N.J. 137, 153-54 , 484 A.2d 1225 (1984) (“[I]t is the jury that must * * * determine whether th[e] duty [to manufacture a product that is suitably safe for its intended or anticipated purposes under the risk-utility standard] has been breached.”); Johnson v. Salem Corp., 97 N.J. at 78, 89 , 477 A.2d 1246 (“Ordinarily the jury should be permitted to determine whether ‘the risks of injury so outweighed the utility of the product as to constitute a defect.’ ” (quoting O’Brien, supra, 94 N.J. at 184 , 463 A.2d 298 )).

1994Corp., 98 N.J. 137, 153-54 , 484 A.2d 1225 (1984) (“[I]t is the jury that must * * * determine whether th[e] duty [to manufacture a product that is suitably safe for its intended or anticipated purposes under the risk-utility standard] has been breached.”); Johnson v. Salem Corp., 97 N.J. at 78, 89 , 477 A.2d 1246 (“Ordinarily the jury should be permitted to determine whether ‘the risks of injury so outweighed the utility of the product as to constitute a defect.’ ” (quoting O’Brien, supra, 94 N.J. at 184 , 463 A.2d 298 )).

1994Corp., 98 N.J. 137, 153-54 , 484 A.2d 1225 (1984) (“[I]t is the jury that must * * * determine whether th[e] duty [to manufacture a product that is suitably safe for its intended or anticipated purposes under the risk-utility standard] has been breached.”); Johnson v. Salem Corp., 97 N.J. at 78, 89 , 477 A.2d 1246 (“Ordinarily the jury should be permitted to determine whether ‘the risks of injury so outweighed the utility of the product as to constitute a defect.’ ” (quoting O’Brien, supra, 94 N.J. at 184 , 463 A.2d 298 )).

1994See, e.g., Feldman, supra, 97 N.J. at 447, 479 A.2d 374 (stating that whether product “is unsafe should be decided on a case-by-case basis”); O’Brien, supra, 94 N.J. at 183 , 463 A.2d 298 . (“Where a particular product falls on the risk-utility continuum will depend on the facts of each case.”).