In the world of products liability, design defect claims arise when the product is inherently dangerous in its design. The test for whether a product is inherently dangerous has evolved in modern years from the “consumer expectations test” to the “risk-utility test.”

Under the traditional consumer expectations test, the seller of a product is liable if the product is in a defective condition such that it renders the product unreasonably dangerous to the consumer. This standard allows a jury to infer the existence of a defect if the product fails to meet reasonable expectations of consumers.

The risk-utility analysis, on the other hand, allows the fact finder to consider consumer expectations in the risk-utility balancing, but the Third Restatement makes clear that “consumer expectations do not play a determinative role in determining defectiveness.” Restatement (Third) of Torts: Prod. Liab. § 2 (1998), comment g. Additionally, the risk-utility analysis typically requires plaintiff to put on proof of a feasible alternative design. Id. at (b).

The modern trend by state supreme courts had been an adoption of some form of risk-utility analysis. See Branham v. Ford Motor Co., 390 S.C. 203, n. 11, 701 S.E.2d 5, n. 11 (S.C. 2010) (“By our count 35 of the 46 states that recognize strict products liability utilize some form of risk-utility analysis in their approach to determine whether a product is defectively designed.”). Despite this overwhelming trend, three states (Florida, Nevada, and South Dakota) have recently declined to adopt the risk-utility analysis, suggesting the trend could be changing.

This article surveys the current state of law across the 50 states to demonstrate which states have adopted the risk-utility test and which states remain committed to the consumer expectations test. The survey includes whether the state requires a plaintiff to demonstrate that a feasible alternative product design would have prevented plaintiff’s harm at a reasonable cost.

ALABAMA

Current Law: Alabama follows its own unique test under the “Alabama Extended Manufacturer’s Liability Doctrine,” which incorporates both the consumer expectations test and risk-utility test. Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala. 1976) and Atkins v. American Motors Corp., 335 So. 2d 134 (Ala. 1976); see also Ala. Code § 6-5-521 (2018) (defining “product liability action”).

Is Proof Required? Yes. Beech Through Beech v. Outboard Marine Corp., 584 So. 2d 447, 450 (Ala. 1991); Hosford v. BRK Brands, Inc., 223 So. 3d 199, 203 (Ala. 2016).

ALASKA

Current Law: Courts can apply either the consumer expectations test or risk-utility analysis. General Motors Corp. v. Farnsworth, 965 P.2d 1209, 1220 (Alaska 1998).

Is Proof Required? No. Maines v. Kenworth Alaska, Inc., 155 P.3d 318, 331, n. 35 (Alaska 2007) (“Alaska does not require the proof of a reasonable alternative design to be an absolute requirement.”).

ARIZONA

Current Law: Courts can apply either the consumer expectations test or risk-utility analysis. See Long v. TRW Safety Systems, Inc., 796 F. Supp. 2d 1005, 1011 (D. Ariz. 2011) (“In Arizona, two models may be used to determine whether the product was defectively designed: the consumer expectation test and risk/benefit analysis.”) (citing Golonka v. GM Corp., 204 Ariz. 575, 65 P.3d 956, 962 (Ariz. Ct. App. 2003)).

Is Proof Required? It is unclear. Compare Long v. TRW Safety Systems, Inc., 796 F. Supp. 2d 1005, 1011 (D. Ariz. 2011) (holding that defendant had shown no legal authority providing that plaintiffs were required to prove, inter alia, an alternative design) with Welch v. Wright Medical Technology, Inc., 2012 WL 4711899, *2 (D. Ariz. 2012) (noting that Arizona’s standard is analogous to the standard proposed by the Third Restatement of Torts, which provides that a design is defective “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design.”).

ARKANSAS

Current Law: Consumer expectations. Ark. Code § 16-116-202(7)(A).

Is Proof Required? No. Boerner v. Brown & Williamson Tobacco Corp., 260 F.3d 837, 846 (8th Cir. 2001) (“[O]ur case law makes clear that a defective design can be established under Arkansas law without proof of a safer alternative design.”

CALIFORNIA

Current Law: Courts can apply either the consumer expectations test or risk-utility analysis. Ramirez v. ITW Food Equipment Group, LLC, 686 F. App’x 435, 437 (9th Cir. 2017) (“The consumer-expectations and risk-benefit tests ‘provide alternative means for a plaintiff to prove design defect and do not serve as defenses to one another,’ meaning that [plaintiffs] can succeed under one test even if they fail under another.”) (citing Chavez v. Glock, Inc., 207 Cal. App. 4th 1283, 144 Cal.Rptr.3d 326, 343 (2012)).

Is Proof Required? No. Perez v. VAS S.p.A., 188 Cal. App. 4th 658, 685, 115 Cal.Rptr.3d 590, 611 (Cal. App. 2d Dist. 2010).

COLORADO

Current Law: Risk-utility. Barton v. Adams Rental, Inc., 938 P.2d 532, 537 (Colo. 1997).

Is Proof Required? No. See Armentrout v. FMC Corporation, 842 P.2d 175, 185 n. 11 (Colo. 1992); see also Walker v. Ford Motor company, 406 P.3d 845, 850 (Colo. 2017).

CONNECTICUT

Current Law: Consumer expectations, except in complex product designs in which a “modified consumer expectations” applies. See Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 219-220, 694 A.2d 1319, 1330 (Conn. 1997).

Is Proof Required? No. Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 221, 694 A.2d 1319, 1330, 1332-33 (Conn. 1997).

DELAWARE

Current Law: It is unclear. Delaware has never adopted strict liability, declaring it to be “impermissible judicial legislation.” Cline v. Prowler Industries, Inc., 418 A.2d 968, 974 (Del. 1980).

Is Proof Required? No. Barba v. Carlson, No. N11C- 08-050 MMJ, 2014 WL 1678246, *5 (Del. Super. Apr. 8, 2014) (“It is legally possible for a plaintiff to prove defective design even if no alternative design has been identified.”).

FLORIDA

Current Law: Consumer expectations. Aubin v. Union Carbide Corp., 177 So. 3d 489, 510 (Fla. 2015) (“[I]n approaching design defect claims, we adhere to the consumer expectations test[.]”).

Is Proof Required? No. Aubin v. Union Carbide Corp., 177 So. 3d 489, 510 (Fla. 2015) (“[I]n approaching design defect claims, we . . . reject the categorical adoption of the Third Restatement and its reasonable alternative design requirement.”).

GEORGIA

Current Law: Risk-utility. Banks v. ICI Americas, Inc., 264 Ga. 732, 734, 450 S.E. 2d 671, 673 (Ga. 1994) (“[W]e hereby adopt the risk-utility analysis.”).

Is Proof Required? Yes. Jones v. NordicTrack, Inc., 550 S.E.2d 101, 103-04 (Ga. 2001).

HAWAII

Current Law: (i) Consumer expectations; (ii) riskutility; and (iii) the latent danger test. See Acoba v. General Tire, Inc., 92 Haw. 1, 17, 986 P.2d 288, 304 (Haw. 1999) (“A plaintiff may establish a defect for purposes of either strict liability or negligence under three approaches: (1) the ‘consumer expectation’ test; (2) the ‘risk utility’ test; and (3) the ‘latent danger’ test.”).

Is Proof Required? It has not been directly addressed, but appears no. See Masaki v. General Motors Corp., 71 Haw. 1, at 22-23 n. 10, 780 P.2d 566 at 578 n. 10 (Haw. 1989) (finding a jury instruction, which provided, inter alia as follows, to be consistent with Hawaii law: “In determining whether or not the benefits outweigh such risk, you may consider . . . the mechanical feasibility of a safer alternative design at the time the product was manufactured, the financial cost of an improved design, and the adverse consequences, if any, to the product and the consumer that would result from an alternative design.”) (emphasis added).

IDAHO

Current Law: Risk-utility. Toner v. Lederle Labs., 732 P.2d 297, 306 (Idaho 1987).

Is Proof Required? Yes. Puckett v. Oakfabco, Inc., 979 P.2d 1174, 1181 (Idaho 1999).

ILLINOIS

Current Law: Either is acceptable. Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 253-54 (2007).

Is Proof Required? No. Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 560 (Ill. 2008).

INDIANA

Current Law: Consumer expectations. See Ind. Code Ann. § 34-20-4-1.

Is Proof Required? Yes. Burt v. Makita USA, Inc., 212 F. Supp. 2d 893, 900 (N.D. Ind. 2002).

IOWA

Current Law: Risk-utility. Wright v. Brooke Group Ltd., 652 N.W.2d 159, 169-170 (Iowa 2002).

Is Proof Required? Yes. Wright v. Brooke Group Ltd., 652 N.W.2d 159, 169-170 (Iowa 2002).

KANSAS

Current Law: Consumer expectations. Delaney v. Deere & Co., 999 P.2d 930, 945-47 (Kan. 2000) (While also recognizing that the “validity of riskutility analysis as a guide in determining the expectations of consumers in complex cases.”).

Is Proof Required? No. Delaney v. Deere & Co., 999 P.2d 930, 945-47 (Kan. 2000).

KENTUCKY

Current Law: Risk-utility analysis. Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 42 (Ky. 2004).

Is Proof Required? Yes. Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 42 (Ky. 2004).

LOUISIANA

Current Law: Risk-utility. See LSA-R.S. § 9:2800.56.

Is Proof Required? Yes. See LSA-R.S. § 9:2800.56.

MAINE

Current Law: Danger-utility test. Guiggey v. Bombardier, 615 A.2d 1169, 1172 (Me. 1992).

Is Proof Required? Yes. Stanley v. Schiavi Mobile Homes, Inc., 462 A.2d 1144, 1148 (Me. 1983).

MARYLAND

Current Law: Consumer expectations, except when a product malfunctions, in which case risk-utility applies. Halliday v. Sturm, Ruger & Company, Inc., 792 A.2d 1145, 1152-1153 (Md. 2002).

Is Proof Required? No, if consumer expectations. Yes, if risk-utility. See Halliday, 792 A.2d at 1153; Lloyd v. Gen. Motors Corp., 275 F.R.D. 224, 228-231 (D. Md. 2011).

MASSACHUSETTS

Current Law: Risk-utility. Evans v. Lorillard Tobacco Co., 465 Mass. 411, 423-428 (Mass. 2013).

Is Proof Required? Yes. Evans v. Lorillard Tobacco Co., 465 Mass. 411, 428-429 (Mass. 2013).

MICHIGAN

Current Law: Risk-utility. Gregory v. Cincinnati Inc., 538 N.W.2d 325, 333 (Mich. 1995).

Is Proof Required? Yes. Croskey v. BMW, Inc., 532 F.3d 511, 516 (6th Cir. 2008).

MINNESOTA

Current Law: Consumer expectations. Bilotta v. Kelley Co., Inc., 346 N.W.2d 616, 622 (Minn. 1984).

Is Proof Required? Yes, except in “rare cases.” See Kallio v. Ford Motor Co., 407 N.W.2d 92, 96 (Minns. 1987) (“to establish a prima facie case that [the product] was unreasonably dangerous normally requires production of evidence of the existence of a feasible, alternative safer design.). (emphasis added); see also Wagner v. Hesston Corp., 450 F.3d 756, 760 (8th Cir. 2006).

MISSISSIPPI

Current Law: Both consumer expectations and risk-utility. Smith v. Mack Trucks, Inc., 819 So. 2d 1258, 1266 (Miss. 2002).

Is Proof Required? Yes. See Miss. Code Ann. § 11-1-63(f)(ii).

MISSOURI

Current Law: Neither. See Sappington v. Skyjack, Inc., 512 F.3d 440 (8th Cir. 2008) (“Missouri courts have consistently refused to impose any ‘judicial definition [of unreasonably dangerous] whether derived from consumer expectations, risk-utility, or otherwise.’”).

Is Proof Required? No. Moore v. Ford Motor Co., 332 S.W.3d 749, 760 (Mo. 2011).

MONTANA

Current Law: “A design defect is one which ‘presents an unreasonable risk of harm, notwithstanding that it was meticulously made according to [the] detailed plans and specifications’ of the manufacturer.’” Rix v. General Motors Corp., 723 P.2d 195, 200 (Mont. 1986); see also Krueger v. General Motors Corp., 783 P.3d 1340, 1345 (Mont. 1989); see also Speaks v. Mazda Motor Corp., 118 F. Supp. 3d 1212, 1226 (D. Mont. 2015) (“As has been consistently reiterated by the Montana Supreme Court, ‘the focus in design defect cases shines on the condition of the product, rather than the manufacturer’s conduct or knowledge.’”).

Is Proof Required? Yes. Krueger v. General Motors Corp., 240 Mont. 266, 783 P.3d 1340 (1989).

NEBRASKA

Current Law: Consumer expectations. Freeman v. Hoffman-La Roche, Inc., 260 Neb. 552, 557-558, 618 N.W.2d 827, 834 (2000).

Is Proof Required? No. Rahming v. Mosley Machinery Co., 226 Neb. 423, 412, 412 N.W.2d 56 (Neb. 1987).

NEVADA

Current Law: Consumer expectations. Ford Motor Co. v. Trejo, 402 P.3d 649, 655 (Nev. 2017).

Is Proof Required? No. Ford Motor Co. v. Trejo, 402 P.3d 649, 655 (Nev. 2017).

NEW HAMPSHIRE

Current Law: Risk-utility. Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813, 831, 891 A.2d 477, 492 (N.H. 2005) (“The jury determines whether a product is unreasonably dangerous by using riskutility balancing test.”).

Is Proof Required? No. Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813, 831, 891 A.2d 477, 492 (N.H. 2005) (“Proof of an alternative design is neither a controlling factor nor an essential element that must be proved in every case.”).

NEW JERSEY

Current Law: Risk-utility. Lewis v. American Cyanamid Co., 155 N.J. 544, 560, 715 A.2d 967, 975 (1998).

Is Proof Required? Not necessarily. N.J. Stat. § 2A:58C-3(a)(1) (providing that a plaintiff may succeed on a design defect claim if the plaintiff shows either that the product’s risks outweighed its utility or that a practical and feasible, safer, alternative design existed that would have reduced or prevented the harm.).

NEW MEXICO

Current Law: Risk-utility, at least to some degree. See Bustos v. Hyundai Motor Co., 149 N.M. 1, 13, 243 P.3d 440, 452 (N.M. Ct. App. 2010)(“New Mexico’s existing law, at least to some degree, applies the risk-utility considerations[.]”).

Is Proof Required? No. Bustos v. Hyundai Motor Co., 149 N.M. 1, 13, 243 P.3d 440, 452 (N.M. Ct. App. 2010) (“to the extent that evidence of an alternative design is required, New Mexico courts do not require a ‘rigid showing in the plaintiff’s prima facie case.’”).

NEW YORK

Current Law: Risk-utility. Reis v. Volvo Cars of N. Am., 24 N.Y.3d 35, 42, 18 N.E.3d 383, 387-88 (2014).

Is Proof Required? Yes. Scarangella v. Thomas Built Buses, Inc., 717 N.E.2d 679, 681-82 (N.Y. 1999).

NORTH CAROLINA

Current Law: Risk-utility, except in firearms cases. N.C. Gen. Stat. § 99B-6(a)-(b); N.C. Gen. Stat. § 99B-11.

Is Proof Required? Yes. N.C. Gen. Stat. § 99B-6(a).

NORTH DAKOTA

Current Law: Consumer expectations. N.D. Cent. Code § 28-01.3-01(4).

Is Proof Required? Yes. Erling v. American Allsafe Co., 230 F.3d 1362 (8th Cir. 2000).

OHIO

Current Law: Risk-utility. Ohio Rev. Code Ann. § 2307.75.

Is Proof Required? Yes. Ohio Rev. Code Ann. § 2307.75(F).

OKLAHOMA

Current Law: Consumer expectations. Woods v. Fruehauff Trailer Corp., 765 P.2d 770, 774-76 (Okla. 1988).

Is Proof Required? No. Graves v. Mazda Motor Corp., 2010 WL 5094286, *1 (10th Cir. 2010).

OREGON

Current Law: Consumer expectations. McCathern v. Toyota Motor Corp., 23 P.3d 320, 331 n.15 (2001).

Is Proof Required? No. McCathern v. Toyota Motor Corp., 23 P.3d 320, 331 (2001).

PENNSYLVANIA

Current Law: Either consumer expectations or risk-utility. Tincher v. Omega Flex, Inc., 628 Pa. 296 (Penn. 2014).

Is Proof Required? Yes, if applying risk-utility. Capece v. Hess Maschinenfabrik GmbH & Co. KG, 2015 U.S. Dist. LEXIS 35145 (M.D. Pa. Mar. 20, 2015).

RHODE ISLAND

Current Law: Consumer expectations. Austin v. Lincoln Equip. Assoc., Inc., 888 F.2d 934, 936 (1st Cir. 1989).

Is Proof Required? No. Guilbeault v. R.J. Reynolds Tobacco Co., 84 F. Supp. 2d 263 (D.R.I. 2000) (“Although practically, a plaintiff may well have to prove that a safer feasible alternative design exists to convince a factfinder that the product is ‘defective’ in a way that would render it unreasonably dangerous, there is no indication that this type of proof is required as a matter of law in Rhode Island.”).

SOUTH CAROLINA

Current Law: Risk-utility. Branham v. Ford Motor Co., 701 S.E.2d 5, 14 (S.C. 2010).

Is Proof Required? Yes. Branham v. Ford Motor Co., 701 S.E.2d 5, 14-16 (S.C. 2010).

SOUTH DAKOTA

Current Law: It is unclear. Robinson v. S.D. Brandtjen & Kluge, Inc., 500 F.3d 691, 698 n.2 (8th Cir. 2007) (“It is unclear whether South Dakota has adopted, or would adopt, the socalled ‘risk-utility test,’ in addition to the consumer expectations test of section 402A, for determining the existence of a defective condition.”); see also Karst v. Shur-Co., 878 N.W.2d 604, 622-623 (S.D. 2016) (dissent) (“Because the majority opinion has declined to adopt the risk-utility test . . . as its exclusive test in strict products-liability claims for design defect, this discussion must wait for another day. In the interim, South Dakota law requires the plaintiff to prove that a product is both defective and unreasonably dangerous. An instruction that substantially complies with the consumer-expectation test must be given to meet the required ‘unreasonably dangerous’ element. Although Kolfraft purports to allow an election between the risk-utility test or the consumer expectations . . . instructions on both the risk-utility test and consumer-expectations test must be given to correctly instruct the jury.”).

Is Proof Required? It has never been directly decided. But see Karst v. Shur-Co., 878 N.W.2d 604 (S.D. 2016) (Kern, J. dissenting) (Suggesting that if risk-utility applied then an alternative design would

be required.).

TENNESSEE

Current Law: Consumer expectations. See Tenn. Code Ann. § 29-28-102(8).

Is Proof Required? No. Potter v. Ford Motor Co., 213 S.W.3d 264 (Tenn. Ct. App. 2006).

TEXAS

Current Law: Risk-utility. Uniroyal Goodrich Tire Co. v. Martinez, 977 SW 2d 328 (Tex. 1998).

Is Proof Required? Yes. Tex. Civ. Prac. & Rem. Code Ann. § 82.005(a)(1).

UTAH

Current Law: Consumer expectations. Utah Code § 78B-6-702; Brown v. Sears, Roebuck & Co., 328 F.3d 1274, 1278-79 (10th Cir. 2003).

Is Proof Required? Yes. Allen v. Minnstar, Inc., 8 F.3d 1470, 1479 (10th Cir. 1993).

VERMONT

Current Law: Consumer expectations. See Zaleske v. Joyce, 133 Vt. 150, 155, 333 A.2d 110, 113-114 (1975) (Adopting 402A); See also Farnham v. Bombardier, Inc., 161 Vt. 619, 620, 640 A.2d 47, 48 (1994).

Is Proof Required? It is undetermined. See Manning v. Goodyear Tire & Rubber Co., 2005 Vt. Super. LEXIS 126, fn. 6 (July 20, 2005) (“The adoption of a reasonable alternative design standard based on risk-utility analysis has moved this area of the law away from § 402A’s strict liability standard toward negligence. The Vermont Supreme Court has considered this view but has not necessarily adopted it.”) (internal citations omitted).

VIRGINIA

Current Law: Product is defective if it “fails to satisfy applicable industry standards, applicable government standards, or reasonable consumer expectations.” See Redman v. John D. Brush & Co., 111 F.3d 1174, 1177 (4th Cir. 1997).

Is Proof Required? Yes. See Tunnell v. Ford Motor Co., 385 F. Supp. 2d 582, 583 (W.D. Va. 2005).

WASHINGTON

Current Law: Either is acceptable. See Soproni v. Polygon Apartment Partners, 137 Wash. 2d 319, 326-27, 971 P.2d 500, 504-05 (1999).

Is Proof Required? Yes, under risk-utility. See Ruiz-Guzman v. Amvac Chemical Corp., 141 Wash. 2d 493, 503, 7 P.3d 795, 800 (2000); No, under consumer expectations. See Couch v. Mine Safety Appliances Co., 107 Wash. 2d 232, 237, 241, 728 P.2d 585, 588, 590 (1986).

WEST VIRGINIA

Current Law: Unique version of risk-utility. Phillip Combs and Andrew Cooke, Modern Products Liability Law in West Virginia 113 W. Va. L. Rev. 417, 425 (2011); See also Betty v. Ford Motor Co., 574 S.E.2d 803 (W. Va. 2002).

Is Proof Required? It has not been directly addressed. See Keffer v. Wyeth, 791 F. Supp. 2d 539, 547-548 (S.D W. Va. 2011) (“To be sure, the West Virginia Supreme Court has not stated one way or the other whether a design defect claim requires proof of a safer alternative design of the allegedly defective product. . . Nevertheless, even if it is not required, offering evidence of a safer alternative design is at least one method of showing that a product is ‘not reasonably safe for its intended use’ for the purposes of a design defect claim.”); see also Phillip Combs and Andrew Cooke, 113 W. Va. L. Rev. 417, 427 (2011) (noting lack of case law on the issue).

WISCONSIN

Current Law: Consumer expectations. Green v. Smith & Nephew AHP, Inc., 629 N.W.2d 727, 739 – 741 (Wis. 2001).

Is Proof Required? No. Green v. Smith & Nephew AHP, Inc., 629 N.W.2d 727, 739 – 741 (Wis. 2001).

WYOMING

Current Law: Consumer expectations. Sims v. General Motors Corp., 751 P.2d 357, 364-65 (Wyo. 1988) (emphasis added).

Is Proof Required? Yes, but the Wyoming Supreme Court has suggested it would be inclined to consider arguments that an alternative design is not required. See Campbell err el. Campbell v. Studer, Inc., 970 P.2d 389, 392 n. 1 (Wyo. 1998) (“The requirement that plaintiff show the existence of a reasonable alternative design as an element of her claim has been the subject of extensive debate. Comments b and e to this section, however, suggest an alternative design may not be necessary in every design defect case. We need not enter the debate at this time because [Plaintiff’s] allegations clearly rest on her contention that a feasible alternative design was available.”).

Finis