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Practice Tip: Trying the Design Defect Case

By Lawrence Goldhirsch

A properly pleaded Complaint in a design defect case will permit the plaintiff to try his case on several different theories: negligence, strict liability and breach of warranty. Nevertheless, certain cases would be most efficiently tried only as a breach of warranty.

Trying a negligence case requires the jury to find that the defendant failed to act reasonably in designing the product. To make out a prima facie case of negligence for a design defect, the plaintiff must show there was a feasible design alternative that would have made the product safer. Product liability law evolved to provide a recovery for persons injured by defective products without the need of proving negligence. This, the courts thought, would lessen the plaintiff's burden at trial and shift the risks and costs from the injured party to the manufacturer. Despite the good intentions, however, over the past 20 or 30 years, courts have said that actions in strict liability for defective design are really negligence cases. Thus, what started out as an attempt to make manufacturers strictly liable for product design defects, ended up requiring the same proof as a claim in a negligence case.

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