Case Study:
Higgins v. Intex Recreation Corp., 99 P.3d 421 (Wash. Ct. App. 2004)
This is a suit for personal injury damages based on product liability. To make a case, the plaintiffs had to show that the product was not reasonably safe as designed. Ultimately our disposition here turns on whether the plaintiffs’ showing at trial was sufficient to send the question of the product’s (a snow tube) safety to the jury. The plaintiffs submit that the snow tube went too fast, had no means for the rider to control it, and turned the rider into a fixed backward position. The product distributor responds essentially that this is what the tube was designed to do and therefore the product performed as designed and was not defective, as a matter of law. We conclude that the plaintiffs’ showing was sufficient to submit the question whether the snow tube was not reasonably safe as designed to the jury. And we therefore affirm the judgment for the plaintiffs. Facts Intex Recreation Corporation distributes a vinyl, inflatable tube called Extreme Sno-Tube II. Dan Falkner bought one and used it sledding that same day. He described his first run with the tube as fast. And the tube took him farther than other sliding devices he had used. During Mr. Falkner’s second run, the tube rotated him backward about one-quarter to one-third of the way down the hill. A group of parents, including Tom Higgins, stood near the bottom of the hill. Mr. Higgins heard a noise, looked, and saw seven-year-old Kyle Potter walking in the path of Mr. Falkner’s speeding Sno-Tube: The size of the person on the sled and the little boy walking, I could see that their heads were going to hit so I took off as fast as I could and I grabbed him and, as I grabbed him to lift him, the tube, I misjudged the speed of the tube. It was going a lot faster than I thought, and it clipped me in the ankle, and I threw Kyle and my feet went straight up into the air and I landed on my forehead and snapped my head back. The impact severed Mr. Higgins’s spinal cord and left him a quadriplegic. Mr. Higgins and his family sued Intex Recreation Corporation for damages based on negligence and strict liability. He also sued Dan Falkner, Curt Potter, and Kyle Potter for negligence. Curt Potter is Kyle’s father; he was present at the hill at the time of the accident. Much of the testimony at trial focused on the design of the Sno-Tube and specifically its speed and the lack of any way to direct it. Before Mr. Higgins’s accident, Intex had prepared a hazard inventory. It evaluated hazards for each Intex product, and classified them by likelihood of the hazard and severity of any injury. Intex ranked the Sno-Tube 1-A, that is, most likely to involve collisions with severe injuries resulting. Intex recognized that a problem with the Sno-Tube is that “[u]sers may believe that these products have a steering mechanism and [may] misjudge their ability to control them.” Speed is a function of the Sno-Tube. Intex’s Sno-Boggan goes just as fast but does not rotate. The only way to stop the Sno-Tube is to bail out. Competitors sell inflatable sledding devices with ridges that assist the rider in directing them. But the general position of Intex was that if the Sno-Tube did not go fast and rotate it would not be a Sno-Tube. The plaintiffs put on ample expert testimony that Sno-Tubes in general carry a higher risk of injury because the rider can easily wind up going over 30 miles per hour downhill backwards with no way to direct or stop the tube. Those same experts concluded that ridges on the bottom of the Sno-Tube would have stopped the rotation and assisted the rider in directing it. Intex moved for directed verdict at the close of the plaintiffs’ case and for judgment as a matter of law following the jury’s verdict. It predicated both motions on its view that the plaintiffs had not presented sufficient evidence of a design defect—essentially the SnoTube performed as designed. The court denied both motions. A jury found Dan Falkner not negligent. It found Curt Potter negligent and responsible for 60 percent of the plaintiffs’ damages. It found Kyle Potter negligent and responsible for 5 percent. And it found the Sno-Tube was not reasonably safe as designed and held Intex strictly liable for 35 percent of the damages. Intex appeals. Discussion Product Liability—Design Defect Washington’s Product Liability Act—RCW 7.72.030 (a) A product is not reasonably safe as designed if, at the time of manufacture, the likelihood that the product would cause the claimant’s harm or similar harms, and the seriousness of those harms, outweighed the burden on the manufacturer to design a product that would have prevented those harms and the adverse effect that an alternative design that was practical and feasible would have on the usefulness of the product .… .… (3) In determining whether a product was not reasonably safe under this section, the trier of fact shall consider whether the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer. RCW 7.72.030(1)(a), (3) (emphasis added). There are two tests then for determining whether a product is defective. The risk-utility test requires a showing that the likelihood and seriousness of a harm outweigh the burden on the manufacturer to design a product that would have prevented that harm and would not have impaired the product’s usefulness. RCW 7.72.030(1)(a). The consumer-expectation test requires a showing that the product is more dangerous than the ordinary consumer would expect. RCW 7.72.030(3). This test focuses on the reasonable expectation of the consumer. A number of factors influence this determination including the intrinsic nature of the product, its relative cost, the severity of the potential harm from the claimed defect, and the cost and feasibility of minimizing the risk. Intex argues that the Sno-Tube did exactly what it was designed to do and exactly what consumers expected it to do—go fast and rotate. So any design that eliminated the tube’s ability to rotate and go fast eliminated the characteristics that differentiate the Sno-Tube from other sledding products. Intex also argues that sledding—on any device—carries the risk of severe injury. And the reasonable consumer understands or should understand this. We are passing upon the court’s denial of a directed verdict and its refusal to grant judgment as a matter of law. Both decisions turn on whether we find substantial evidence in this record to support the jury’s finding that this product is unreasonably dangerous under the two tests set out in the statute. Risk-Utility Test We look first at the arguments Intex advances under the risk-utility test. Intex argues that under the riskutility test, the Sno-Tube, as a matter of law, was reasonably safe as designed. In its view, there is no feasible alternative design with this function—a function sought by the consumer. A plaintiff can satisfy its burden of proving an alternative design by showing that another product “more safely serve[s] the same function as the challenged product.” There is evidence in this record from which a jury could conclude that the placement of ribs or ridges on the bottom of the Sno-Tube, like those used on Intex’s Sno-Boggan, would keep the rider facing downhill. The rider could then see obstacles and direct the tube. All this could be done without significantly sacrificing speed. This is enough … to prove an alternative safer design. Intex argues essentially that some products are unavoidably and inherently unsafe. And while that may be true, [a previous case] suggests some guidelines for evaluating when that is an excuse: “[T]he … manufacturer of a challenged product would have to demonstrate that an inherently dangerous product is also ‘necessary regardless of the risks involved to the user.’” The focus is on the product and its relative value to society. Now, the ride down a snow-covered hill backward at 30 miles per hour may be a thrill. But it has very little social value when compared to the risk of severe injury. We do not think the Sno-Tube is a product that is “‘necessary regardless of the risks involved to the user.’” Intex relies on our case of Thongchoom v. Graco Children’s Products, Inc., 71 P.3d 214 (2003), for the proposition that a design change would result in a product that does not do what this one does and, therefore, it would be a fundamentally different product. Thongchoom is distinguishable. The function of the product there (a baby walker) was baby mobility. And the only proposed alternative eliminated that essential function—mobility. The product could not be described as inherently unsafe. It simply enabled a baby to move about. The evidence here was of the obvious—speeding backward at 30 miles per hour down a crowded snow-covered hill is not safe, at least according to this jury. Again, reasonable inferences here are that the user cannot watch for others in his or her path. And, bystanders cannot always move fast enough to avoid the tube. There was ample evidence that an alternative design would permit the user to see what is in his or her path and avoid collisions by either bailing out or by using some minimal steering. We find ample evidence to support this verdict, applying the risk-utility test. Consumer-Expectation Test We next take up Intex’s assertion that the tube was not “unsafe to an extent beyond that which would be contemplated by the ordinary consumer.” RCW 7.72.030(3). Again, we find ample evidence in this record to support the plaintiffs’ assertion to the contrary. Intex’s Vice President, William Frank Smith, testified that Sno-Tube users “may believe that these products have a steering mechanism and [may] misjudge their ability to control them.” And a reasonable jury could easily infer that the average consumer may expect the Sno-Tube to rotate. But he or she might not expect that it would continue in a backward position. The trier of fact was instructed on and was entitled to consider a number of factors: In determining the reasonable expectations of the ordinary consumer, a number of factors must be considered. The relative cost of the product, the gravity of the potential harm from the claimed defect and the cost and feasibility of eliminating or minimizing the risk may be relevant in a particular case. In other instances the nature of the product or the nature of the claimed defect may make other factors relevant to the issue. Here, the Sno-Tube is inexpensive. But so is Intex’s Sno-Boggan. And the Sno-Boggan provides a fast ride but not a blind high-speed ride. A jury could then find that a reasonable consumer would expect that a snow sliding product would not put him or her in a backward, high-speed slide. We find ample evidence in favor of the plaintiffs applying the consumer-expectation test. *** We affirm the judgment.
Q1. Why does the court apply both the risk-utility test and the consumer expectation test in this case?
Q2. How should the manufacturer alter its behavior in response to this case?
Q3. If the manufacturer has to alter its product as a result of this case, it may end up producing a product that is less attractive to potential consumers. Does the court view this as a problem? Why or why not?
Your answer must be typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format and also include references.