Basic Concepts: Plaintiff argued that the didn't have to prove product was unreasonably dangerous,

only that it was defective, that he was injured and that the defect was the proximate cause of his
injuries.

Defendant argued that Plaintiff had to prove the product was unreasonably dangerous.

The California Courts had followed the unreasonably dangerous standard for several years and had
adopted the Restatement of Torts 402A which had this standard.

COURT REJECTS UNREASONABLY DANGEROUS STANDARD UNDER THE RESTATEMENT

in 1972, the Court ruled in Cronin that the plaintiff no longer had to prove that the product was
"unreasonably dangerous" in order to recover in strict products liability, and that that the plaintiff's
burden of proof in strict products liability was based on three elements: (1) defect; (2) proximate
causation; and (3) injury. The court Ie flatly rejected the suggestion that recovery in a products liability
action should be permitted only if a product is more dangerous than contemplated by the average
consumer, refusing to permit the low esteem in which the public might hold a dangerous product to
diminish the manufacturer's responsibility for injuries caused by that product. As we pointedly noted in
Cronin, even if the "ordinary consumer" may have contemplated that Shopsmith lathes posed a risk of
loosening their grip and letting a piece of wood strike the operator, "another Greenman" should not be
denied recovery

Ray Barker filed suit against Lull engineering on the theory of strict liability for alleged defective
design for injuries he sustained when he jumped from the loader that was manufactured by Lull. Barker
had operated the loader on only a few occasions, and was instructed to fill in for a more experienced
operator who call out of work. He was attempting to lift a load of lumber onto the second story of a
building on a steep terrain. His coworkers who were guiding him thought they saw the load beginning
to tip and warned him to jump. While scrambling away from the loader, Barker was struck by a piece
of falling lumber.

Barker claimed that his injuries were caused by one or more design defects of the loader including the
lack of outriggers which would have stabilized the loader on uneven terrain; the absence of a roll bar
or seat belts which would have protected himf if the loader rolled over, the placement of the leveling
mechanism of the loader in a position in which it was likely to be inadvertently bumped; and the
absence of a "park" position on the transmission of the loader, which would have precluded the
possibility of movement during the lift .

Lull denied that the loader was defective designed and claimed that the injuries resulted from either
Barker's lack of skill or his misuse of the loader. Evidence introduced at trial on the alleged design
defects sharply conflicted, and the jury returned a verdict in defendant's favor. Barker argued on appeal
that the trial court erred in instructing the jury that "strict liability for the defect in design of a product
is based on a finding that the product was unreasonably dangerous for its intended use . . . He argued
that this instruction directly conflicted with the decision of the court in Cronin, therefore mandating
reversal of the judgment. The plaintiff alleged that in Cronin, the California Supreme Court held that
the plaintiff does not have to prove that the product is "unreasonably dangerous" in order to recover in
strict products liability."

Up until Cronin, the "unreasonably dangerous" was required to prove a product was defective in
several California decisions and is part of Restatement section 402A which was adopted by the
California courts. The reasons given by the Cronin court for not requiring proof that the product is

1. because the term unreasonably dangerous "rings of negligence."' and that one of the purposes of
the strict products liability action is to avoid burdening the plaintiff with the necessity of proving
negligence.
2. the court objected to a requirement that burdened the plaintiff with proving that the product was both
defective and unreasonably dangerous.

The Defendants argued that Cronin decision applied only to manufacturing defects and not to design
defects. The court rejected the defendant's theory and reaffirmed that its holding applied to both
manufacturing and design defects.

The court concluded that the jury instruction was erroneous because it required the plaintiff to prove
that the design made the product unreasonably dangerous, contrary to the holding in Cronin. The court
stated that their rejection of the use of the "unreasonably dangerous" terminology in the Restatement
rested in part on a concern that a jury might interpret such an instruction, as the Restatement draftsman
had indeed intended, as shielding a defendant from liability so long as the product did not fall below
the ordinary consumer's expectations as to the product's safety.

And that as the Luque decision demonstrates, the dangers posed by such a misconception by the jury
extend to cases involving design defects as well as to actions involving manufacturing defects: indeed,
the danger of confusion is perhaps more pronounced in design cases in which the manufacturer could
frequently argue that its product satisfied ordinary consumer expectations since it was identical to other
items of the same product line with which the consumer may well have been familiar.

The court stated that a design defect cannot be identified simply by comparing the injury-producing
product with the manufacturer's plans because all such units will reflect the same design. Rather than
applying any sort of deviation-from-the-norm test in determining whether a product is defective in
design for strict liability purposes, theirr cases have employed two alternative criteria in ascertaining,
whether there is something "wrong, in the manufacturer's product."

The court then articulated two standards under which the design of a product may be found defective

First: A product may be found defective in design if the plaintiff demonstrates that the product failed to
perform as safely as an ordinary consumer would expect when used in an intended or reasonably
foreseeable manner (Consumer Expectations Test)

Or
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," or, in other words, if the jury finds that the risk of danger inherent in the challenged design
outweighs the benefits of such design. (Risk-benefit or now known as the Risk-Utility Test).

In other words this would now be a two-prong test,

Burden on Plaintiff:
Under the first prong: the plaintiff would have to prove that the product failed as an ordinary consumer
would expect when used in an intended or reasonably foreseeable manner
Burden on Defendant:
Under the second prong: the plaintiff only had to make a prima facie showing that an injury was
proximately caused by the defective design of the product. Once the plaintiff made that showing the
burden would shift to the defendant to prove that the product was not defective.

The court stated that the relevant criteria to be considered by the jury under this prong is the gravity of
the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical
feasibility of a safer alternative

Under the first standard, the plaintiff need only prove that the ordinary consumer would expect the
product to be safer. Under the second standard, the defendant must prove that the benefits of the
challenged design outweigh the inherent risk of danger.

The primary goal of this decision was to ensure that the seller or manufacturer-not the injured
consumer-would bear the cost of injury resulting from a defective product. In order to achieve this goal,
the court followed its decision in Cronin to confine the plaintiff's burden of proof in strict products
liability to three elements: (1) defect; (2) proximate causation; and (3) injury. The Barker decision, read
as establishing a single test for design defects, keeps the number of hurdles between the plaintiff and
recovery to a minimum; if the plaintiff does not prevail under the first prong, he may still prevail under
the second if the defendant fails to exculpate himself.

STRICT LIABILITY PROGRESSION IN CALIFORNIA

The origins of strict products liability in California may be traced to the 1944 case of Escola v. Coca
Cola Bottling Co. Justice Traynor urged the court to do away with negligence and the fictions of
warranty theory, both characteristic of existing products liability decisions. He suggested that the court
instead adopt a theory of absolute liability.It was not until 1963 that Justice Traynor, writing for a
unanimous court, pronounced the rule of strict products liability in Greenman v. Yuba Power Products,
Inc . that a " manufacturer is strictly liable in tort when an article he places on the market, knowing that
it is to be used without inspection for defects, proves to have a defect that causes injury to a human
being." This oft-quoted phrase is sometimes referred to as the "Greenman rule".

1944 Escola v. Coca Cola Bottling Co: California Supreme Court Justice Traynor urged the court to
do away with negligence and the warranty theory, both which were characteristic of existing products
liability decisions. He suggested that the court instead adopt a theory of absolute liability. Court did
not adopt the theory, stuck with negligence and warranty theories.

1963 Greenman rule: a manufacturer is strictly liable in tort when an article he places on the market,
knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to
a human being. Greenman v Yuba Power Products (product is defective if not properly inspected
before sale and turns out to be unsafe for intended use)(this is the case where the plaintiff bought a
lathe attachment for a multi-tool that broke off the tool after a few uses)

"implicit in product's presence on the market ... [is] a representation that it [will] safely do the jobs for
which it was built." When a product fails to satisfy such ordinary consumer expectations as to safety in
its intended or reasonably foreseeable operation, a manufacturer is strictly liable for resulting injuries."(
Greenman Rationale: "The purpose of such liability is to insure that the costs of injuries resulting from
defective products are borne by the manufacturers that put such products on the market rather than by
injured persons who are powerless to protect themselves.

1965 Restatement (Second) of Torts section 402A was published in its final form. This section states in
part: "One who sells any product in a defective condition unreasonably dangerous . ..is subject to
liability for physical harm thereby caused .

Strict products liability is not the absolute liability urged by Justice Traynor in Escola. The requirement
of a defect, imposed by both the Greenman rule and the Restatement, distinguishes strict products
liability from absolute liability. Under the theory of absolute liability, a manufacturer or seller would be
subject to liability whenever an injury was caused by a product, irrespective of the presence of a defect.
The defectiveness requirement in strict products liability limits liability so that a manufacturer or seller
does not become an unlimited insurer of the product." Although initially the Greenman rule and the
Restatement were often thought to be interchangeable, a subsequent California decision (Cronin) drew
a significant distinction between the two.

1972 Cronin v. J.B.E. Olson Corp., the California Supreme Court held that the plaintiff does not have
to prove that the product is "unreasonably dangerous" in order to recover in strict products liability."
Up until Cronin, the "unreasonably dangerous" was required to prove a product was defective in
several California decisions and is part of Restatement section 402A. The reasons given by the Cronin
court for not requiring proof that the product is

1. because the term unreasonably dangerous "rings of negligence."' and that one of the purposes of
the strict products liability action is to avoid burdening the plaintiff with the necessity of proving
negligence.
2. the court objected to a requirement that burdened the plaintiff with proving that the product was both
defective and unreasonably dangerous.

Takeaway: Plaintiff does not have to prove that the product is unreasonably dangerous.

1 In order to understand the two standards for design defects set forth by the court in Barker, it is
necessary to discuss the tests for strict products liability espoused by Deans Keeton and Wade and to
compare these tests with an action for negligence. Dean Keeton proposed the following test to identify
a defect:
A product is defective if it is unreasonably dangerous as marketed. It is unreasonably dangerous if a
reasonable person would conclude that the magnitude of the scientifically perceivable danger as it is
proved to be at the time of trial outweighed the benefits of the way the product was so designed and
marketed.

Under the heading of benefits one would include anything that gives utility of some kind to the
product; one would also include the infeasibility and additional cost of making a safer product.

Dean Wade's test to identify a defect in a product is similar: Assume that the defendant knew of the
dangerous condition of the product and ask whether he was then negligent in putting it on the market or
supplying it to someone else .. . .Once given this notice of the dangerous condition of the chattel, the
question then becomes whether the defendant was negligent to people who might be harmed by that
condition .. . .Another way of saying this is to ask whether the magnitude of the risk created by the
dangerous condition of the product was outweighed by the social utility attained by putting it out in this
fashion." Under both tests the defendant is assumed to know of the dangerous condition of the product.

The question then becomes whether the defendant acted unreasonably in so marketing the product. The
issue is "whether the magnitude of the risk created by the dangerous condition of the product so
outweighed the social utility attained by putting it out in this fashion that a reasonable seller would not
have marketed it."'

The primary difference between the approach advocated by Deans Keeton and Wade, often called the
risk/utility analysis, and common-law negligence is that under their approach, the plaintiff need not
prove that the defendant knew or should have known of the dangerous condition of the product at the
time of manufacture or sale.

As long as the product is shown to be defective when sold,the plaintiff need not prove that the
defendant knew or should have known of the defect. The plaintiff didn't have to prove that the defect
could have been discovered, nor the specific act or omission that caused the defect.5 ' Thus, the focus
of analysis in strict products liability is on the condition of the product and not on the conduct of the
defendant.

Takeaway: Strict liability still rings in negligence but plaintiff no longer had to prove that the
manufacturer knew or should have known of the dangerous condition of the product at the time of
manufacture or sale. Focus is on the condition of the product, not the conduct of the manufacturer.