Strict Liability For Manufacturers

A manufacturer is clearly subject to the law of strict products liability. There are three alternative tests to ascertain whether a product is defective: (1) the consumer expectation test (established by Ontai v. Straub Clinic and Hospital, Inc., 66 Haw. 237 at 240-241, 659 P.2d 734 at 739 (1983)); see, Akee v. Dow Chemical Co., 272 F.Supp. 2d 1112 at 1131 (D.Haw. 2003), (2) the risk-utility test (established by Ontai v. Straub Clinic and Hospital, Inc., 66 Haw. 237 at 242, 659 P.2d 734 at 740 (1983)); see, Akee, supra, 272 F.Supp. 2d at 1131-1132, and (3) the latent danger test (see Tabieros v. Clark Equip. Co., 85 Hawai'i 336, 370, 944 P.2d 1279, 1313 (1997); Acoba v. General Tire, Inc., 92 Haw. 1, 17, 986 P.2d 288 (1999)).

(1) Under the consumer expectation test, the plaintiff must show that a product failed to perform as safely as an ordinary consumer would expect it to when used in its intended or a reasonably foreseeable manner. Ontai, supra; Akee, supra.

(2) Under the risk-utility test, once the plaintiff proves a product's design caused the injury complained of, the defendant must prove that the benefits of a product’s design outweigh the risk of danger inherent in that design.

"Under the risk-utility test, a product is defective in design if the product's design proximately caused the plaintiff's injury and the manufacturer fails to establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risks inherent in the design. See, Ontai, 659 P.2d at 741. The factors to be balanced include: (1) the usefulness and desirability of the product; (2) the safety aspects of the product; (3) the availability of a substitute product which would meet the same need and not be as unsafe; (4) the manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility; (5) the user's ability to avoid danger by the exercise of care in the use of the product; (6) the user's anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions; and (7) the feasability, on the part of the manufacturer, of spreading the loss by setting the prices of the product or carrying liability insurance. See Tabieros, 85 Hawaii at 366, 944 P.2d 1279 (citing Larsen v. Pacesetter Sys., Inc., 74 Haw. 1, 837 P.2d 1273 (1992)); see also Wagatsuma v. Patch, 10 Haw.App. 547, 566-67, 879 P.2d 572 (1994), cert. denied, 77 Hawaii 373, 884 P.2d 1149 (1994)." Akee v. Dow Chemical Co., supra, 272 F.Supp.2d 1112 at 1131-1132.

(3) Under the latent danger test, the plaintiff must prove the following four elements:

1) even if faultlessly made, the use of the product in a manner that is intended or reasonably foreseeable, including reasonably foreseeable misuse, involves a substantial danger, and

2) the manufacturer knew or should have known about the danger, and

3) the danger would not be readily recognized by the ordinary user or consumer of the product, and

4) the manufacturer failed to give adequate warnings of the danger or adequate instructions for safe use.

Hawai'i Civil Jury Instruction No. 11.15, 1999 edition.

In Barker v. Lull Engineering, 20 Cal. 3d 413, 430, 143 Cal. Rptr. 225, 236, 573 P.2d 443, 454 (1978), the Supreme Court of California stated: “[A] product may be found defective in design, even if it satisfies ordinary consumer expectations, if through hindsight the jury determines that the product's design embodies 'excessive preventable danger'." The principles enunciated in Barker were adopted by the Supreme Court of the State of Hawaii in Ontai v. Straub Clinic and Hospital, 66 Haw. 237, 243, 659 P.2d 734, 740 (1983).

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