§63.2 Application of the Consumer Expectation Test to All Products

The Case: Jackson v. General Motors Corporation , 60 S.W.3d 800 (Tenn. 2001).

The Basic Facts: Plaintiff was a injured in an automobile accident. Plaintiff subsequently brought a products liability action against Defendant car manufacturer based on the consumer expectation test provided in the Tennessee Products Liability Act of 1978, alleging that the car's seatbelt was unreasonably dangerous.

The Bottom Line:

• "Pursuant to Rule 23 of the Rules of the Supreme Court of Tennessee, this Court accepted certification of the following question from the United States Court of Appeals for the Sixth Circuit:

  In a products liability action under Tennessee law, may the plaintiff use the 'consumer expectation test' to prove that his seatbelt/restraint system was unreasonably dangerous because it failed to conform to the safety standards expected by an ordinary consumer under the circumstances?

  We conclude that the consumer expectation test as defined by Tenn. Code Ann. § 29-28-102(8) is applicable to any products liability claim where the plaintiff intends to show that a manufacturer is liable for plaintiff's injuries as a result of an unreasonably dangerous product."
  60 S.W.3d at 800 (footnote omitted).
• "To answer this certified question of law, we must construe the Tennessee Products Liability Act of 1978. See Tenn. Code Ann. §§ 29-28-101 to -108. Section 29-18-105 of the statute provides:

  (a) A manufacturer or seller of a product shall not be liable for any injury to a person or property caused by the product unless the product is determined to be in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller.
  
  (d) A product is not unreasonably dangerous because of a failure to adequately warn of a danger or hazard that is apparent to the ordinary user.

  'Unreasonably dangerous' is defined in section 29-28-102(8) as

  dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics, or that the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller, assuming that the manufacturer or seller knew of its dangerous condition."

  Id . at 803.
• "We previously considered this statute and the consumer expectation test in Ray ex rel. Holman v. BIC Corp., 925 S.W.2d 527 (Tenn. 1996). In BIC, this Court, answering a Rule 23 certified question of law from the Sixth Circuit, examined the Tennessee Products Liability Act of 1978 to determine whether, in addition to the consumer expectation test, section 29-28-102(8) provided for a 'risk-utility' test. We held that the statute provided for two tests: the consumer expectation test and the prudent manufacturer test (which involves risk-utility balancing). The plaintiff in BIC asserted that a disposable cigarette lighter was unreasonably dangerous on the basis of the prudent manufacturer test. In resolving this issue, the Court examined both tests under the definition of unreasonably dangerous, and concluded that '[o]ur statute does not limit the application of either test to only certain types of actions. Nonetheless, the consumer expectation test will be inapplicable, by definition, to certain products about which an ordinary consumer can have no expectation.' 925 S.W.2d at 533." Id.
• "The defendant contends that seat belts are complex products about which the ordinary consumer cannot possibly formulate expectations regarding their safety and performance in automobile crashes. Defendant suggests that Tennessee's prudent manufacturer test is the appropriate test to be applied when the product at issue is complex beyond the knowledge of the ordinary consumer. As support for this argument, the defendant points to other language in BIC stating that the consumer expectation test is ill-suited for application to complex products:

  For example, ordinary consumers would have a basis for expectations about the safety of a can opener or coffee pot, but, perhaps, not about the safety of a fuel-injection engine or an air bag. . . . While the statute does not limit applicability of the tests, the prudent manufacturer test will often be the only appropriate means for establishing the unreasonable dangerousness of a complex product about which an ordinary consumer has no reasonable expectation."

  Id . at 804.
• "Section 29-28-102(8) of Tennessee Code Annotated is silent as to any limitation on the application of the consumer expectation test in products liability cases. Absent contrary indication in the statute, we read Tennessee products liability law to permit application of the consumer expectation test in all products liability cases in which a party intends to establish that a product is unreasonably dangerous. It does not follow that, because the consumer expectation test may be applied in all such product liability cases, the manufacturer will be subject to absolute liability. Whether a plaintiff is successful on a products liability claim under the consumer expectation test will depend on whether the trier of fact agrees that the plaintiff's expectation of product performance constituted the reasonable expectation of the ordinary consumer having ordinary knowledge of the product's characteristics." Id.
• "We are unwilling to accept the defendant's argument that ordinary consumers cannot form expectations about the safety and performance of seat belts. The language in BIC upon which the defendant relies merely explains that it may be difficult for a plaintiff to establish that the product is 'dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics,' if the community has no ordinary knowledge about the product's characteristics. See Tenn. Code Ann. § 29-28-102(8). Our intent in BIC was not to limit the application of either test, but to hold that, in order to be successful under the consumer expectation test, the plaintiff must present evidence that the ordinary consumer has an expectation regarding the safety of the product. 'What is determinative is what an ordinary purchaser would have expected.' 925 S.W.2d at 531. The opinion in BIC clearly states that either the consumer expectation test or the prudent manufacturer test, or both, may be applied in all cases where the product is alleged to be unreasonably dangerous." Id.
• "The ability to go forward on a claim that a product is unreasonably dangerous based on the consumer expectation test requires that the plaintiff provide sufficient evidence to create a question of fact that the product was 'dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.' See Tenn. Code Ann. § 29-28-102(8). Once this question of fact is established, however, '[t]he general rule in Tennessee is that the issue of whether a product is defective or unreasonably dangerous is one for the jury,' Curtis v. Universal Match Corp., Inc., 778 F. Supp. 1421, 1427 (E.D. Tenn. 1991). Under the consumer expectation test, 'a plaintiff is required to produce evidence of the objective conditions of the product as to which the jury is to employ its own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence.' Arnold v. Dow Chemical Co., 110 Cal. Rptr. 2d 722, 737 (Cal. Ct. App. 2001)." Id. at 805-06.
• "The issue of whether the consumer expectation test applies to seat belts was addressed in Cunningham v. Mitsubishi Motors Corp., No. C-3-88-582, 1993 WL 1367436, at *1 (S.D. Ohio June 16, 1993). In Cunningham, the United States District Court for the Southern District of Ohio, Western Division, held that the consumer expectation test was applicable in a wrongful death/products liability action where the seatbelt was determined to have killed the driver in a twenty-to-thirty miles per hour automobile crash. In its decision, the Cunningham court held:

  [S]eat belts generally are familiar products for which consumers' expectations of safety have had an opportunity to develop, and the function which they were designed to perform is well known. In recent years, consumers have been bombarded with information regarding the importance of wearing seat belts because of the protection which they provide.
  
  [T]his Court is simply not willing to . . . preclud[e] the use of the consumer expectation test in a situation involving a familiar consumer product which is technically complex or uses a new process to accomplish a familiar function. Many familiar consumer products involve complex technology. In addition, manufacturers are constantly altering the methods in which products perform familiar functions. Thus, to conclude that the consumer expectation test cannot be used because a product is technologically complex or because a new process is used to achieve a familiar result would be to significantly reduce the use of that test. . . . Because of their long usage and consumer familiarity with the measure of safety which seat belts provide, consumer expectations do provide useful guidance.

  Id . at *3-*4. The above statement in the Cunningham decision is significant because it recognizes that the consumer expectation test does not depend necessarily on a product's complexity in technology or use. Instead, Cunningham recognizes that successful application of the consumer expectation test by a plaintiff simply requires a showing that the product's performance was below reasonable minimum safety expectations of the ordinary consumer having ordinary, 'common' knowledge as to its characteristics. This entails a showing by the plaintiff that prolonged use, knowledge, or familiarity of the product's performance by consumers is sufficient to allow consumers to form reasonable expectations of the product's safety." Id. at 806.
• "In response to the certified question, we conclude that the consumer expectation test is applicable to any products liability case in which a party seeks to establish that a product is unreasonably dangerous under Tennessee law. We affirm our decision in Ray ex rel Holman v. BIC Corp. that the consumer expectation test and the prudent manufacturer test are not exclusive of one another and therefore either or both of these tests are applicable to cases where the product is alleged to be unreasonably dangerous. However, we recognize here, as we did in BIC, that it may be difficult for plaintiffs in cases involving highly complex products to establish that the product is dangerous to an extent beyond that which would be contemplated by an ordinary consumer, even though the consumer expectation test may, technically, apply." Id.

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