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American Society of Legal Advocates - Top 100 - 2013
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
2) the manufacturer knew or should have known about the
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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Recent Personal Injury and Car Accident News
An important victory in the fight for individual rights (as opposed to insurer rights) is the case of Yukumoto and HMSA v. Tawahara. In that case on May 26, 2017, the Hawaii Supreme Court rejected the efforts of a health insurer who tried to convert its insurance coverage into a 'loan agreement' and recover its medical expense payments from Mr. Yukumoto when he had a 3rd party claim - in spite of the fact that he was not being fully compensated for his losses. This insidious insurance practice has been damaging the citizens and members of the Hawaii community for many years. For more info, see the decision here: Yukumoto and HMSA v. Tawahara, Hawaii Sup. Ct. No. SCAP-15-0000460 (May 26, 2017).