5.40D-1 DESIGN DEFECT — GENERALLY
A product falling within the Consumer Expectations Test category was a food slicing machine which was not equipped with an interlocked safety device to stop the blade from running after the guard was removed to wipe clean the blade. Mettinger, supra, note 1. The existence of a defect can be proven by circumstantial evidence. Myrlak v. Port Authority of New York and New Jersey et al., 157 N.J. 84 (1999) [adopting “Indeterminate Product Test” of section 3 of the Restatement (Third) of Torts: Products Liability].
Another method of proving the existence of a design defect is the Risk- Utility Analysis. There the defect is established by proof that the product’s risks or dangers outweigh its usefulness and therefore, a reasonably careful manufacturer or seller would not have sold the product at all in the form in which it was sold. This involves a balancing or weighing of a number of factors known as risk/utility factors. Cepeda v. Cumberland Engineering Co.,76 N.J. 152 (1978); O’Brien v. Muskin Corp., supra; Brown v. U.S. Stove, 98 N.J. 155, 173 (1984); Michalko v. Cooke Color & Chemical Co., 91 N.J. 386 (1982); N.J.S.A. 2A:58C-2.
In many or perhaps most cases the core issue is whether or not aReasonable Safer Design would have reduced the risk or dangers of the product to the greatest extent possible consistent with the product’s continued utility, i.e., without impairing its usefulness and without making it too expensive for it to be reasonably marketable. In such cases, only the charge on reasonable safer design need be given. There, the plaintiff has only to show the existence of a safe and reasonably feasible alternative to the defendant’s product and that, in light of the omitted safer alternative, the product was not reasonably safe as manufactured or sold. Lewis v. American Cyanamid Co., supra; Smith v. Keller Ladder Co., 275 N.J. Super. 280 (App. Div. 1994). The Restatement (Third) of Torts: Products Liability is fundamentally consistent with New Jersey’s products liability case law and statute regarding product defect.
There are three affirmative statutory defenses to certain design defect claims. They are: 1) there was not a practical and technically feasible alternative design, 2) the harm was caused by an unsafe aspect of the product that is an inherent characteristic of the product, and 3) the harm was caused by an unavoidably unsafe aspect of the product and the product was accompanied by an adequate warning or instruction.
