Design defectiveness is generally defined in terms of a risk-utility balance, the form of liability test adopted by the Restatement (Third) of Torts: Products Liability. However, confusion abounds in how courts formulate such balancing tests. A national survey of recent appellate court decisions reveals that courts generally define the balance in terms of the product's risks and utility, a formulation which appears to call for weighing the product's global costs against the product's global benefits. So defined, the design defect test is incorrect. What appellate courts mean for juries to decide, and what juries ordinarily do in fact decide, is the much more narrow 'microbalance" of the costs and benefits of the particular design feature that the plaintiff claims the manufacturer ought to have adopted. If courts reformulate the test of design defectiveness in this more precise and focused manner, design defect litigation should be improved.
David G. Owen,
Risk-Utility Balancing in Design Defect Cases,
U. Mich. J. L. Reform
Available at: https://repository.law.umich.edu/mjlr/vol30/iss2/5