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Brooks v. Beech Aircraft Corp.6/28/1995
whether strict products liability for an unreasonably dangerous design should be restricted to what the supplier could reasonably know at the time the product was placed on the market. The UJI approach to analyzing the question of defect is that
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 perceived danger as it is proved to be at the time of the trial outweighed the benefit of the way the product was so designed and marketed.
UJI 13-1407 comm. cmt. (quoting, with removal of underscoring, Page Keeton, Product Liability and the Meaning of Defect , 5 St. Mary's L.J. 30, 37-38 (1973)). Further,
he way to remedy the problem inherent in foreseeability is to supply knowledge as a matter of law, even if the defect was scientifically unknowable at the time of manufacture, and to allow the jury to decide if the ordinary person would have put the product on the market as designed.
Id . This method of analyzing whether a product is defective-using evidence of product risk available at the time of trial-has been called the Wade-Keeton approach.
Our research reveals that in cases involving an alleged design defect, this appellation is a misnomer. Both Wade and Keeton have indicated that in cases in which the design of a product is alleged to be unreasonably dangerous, a risk-utility calculation like the one required by our jury instructions should be done in light of the technology available at the time of design or distribution. See John W. Wade, On the Effect in Product Liability of Knowledge Unavailable Prior to Marketing , 58 N.Y.U. L. Rev. 734, 760 (1983) (time of distribution); W. Page Keeton, The Meaning of Defect in Products Liability Law , 45 Mo. L. Rev. 579, 595 (1980) (time of design). The proposed Restatement (Third) of Torts: Products Liability § 2(b), at 9, 13 cmt. a (Tentative Draft No. 1, 1994) adopts a similar position, reasoning that
For the liability system to be fair and efficient, most observers agree that the balancing of risk in judging product design and marketing must be done in light of the knowledge of risks and risk-avoidance techniques reasonably attainable at the time of distribution. . . . mposing liability for [unforeseeable or incalculable risks] would arguably violate a manufacturer's right, in fairness, to be Judged by a normative behavior standard to which it is reasonably possible for manufacturers to conform.
Hence, Wade, Keeton, and the proposed Restatement advocate a negligence approach to design defects.
At the heart of this issue lies a scenario not present in this case-a defect in design or formulation about which a prudent supplier should not be expected to have had knowledge at the time of supply. As observed above, our existing uniform jury instructions allow proof and argument on all of the factors suggested by the Restatement (Third) of Torts as relevant in determining whether the omission of a reasonable alternative gave rise to an unreasonable risk of injury . See Restatement (Third) of Torts: Products Liability § 2, cmt. d, at 19-20 (Tentative Draft No. 1, 1994); . The distinction between the negligence approach proposed by the Restatement and strict liability is the time frame in which the risk-benefit calculation is made. See . As stated by the Arizona Supreme Court in Dart v. Wiebe Manufacturing, Inc. , 709 P.2d 876, 881 (Ariz. 1985) (en banc):
In a strict liability risk/benefit analysis . . . it is not the conduct of the manufacturer or designer which is primarily in question, but rather the quality of the end result
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