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Ruiz-Guzman v. Amvac Chemical Corp.8/24/2000
roduct-by-product basis, as opposed to a blanket exemption like that for medical products, it necessarily follows that the trier of fact should determine a pesticide's value to society relative to the harm it causes. For example, here the parties debate over whether Phosdrin was primarily used to improve the cosmetic appearance of the apples or to preserve crop yields. This is a question for a jury to resolve.
Our answer to the second question certified by the Ninth Circuit is 'yes,' a pesticide can be an 'unavoidably unsafe product' as described in comment k to Restatement (Second) of Torts sec. 402A (1965), if its utility greatly outweighs the risks posed by its use.
CONCLUSION
We answer both questions certified by the Ninth Circuit in the affirmative. Under the WPLA's risk-utility test, a plaintiff may rely upon an alternative product to show that the challenged product's risks outweigh the adverse effects of using an alternative design. A pesticide can be an "unavoidably unsafe product" as described in comment k to Restatement (Second) of Torts sec. 402A (1965), but only if its utility greatly outweighs the risks posed by its use.
TALMADGE, J. (concurring/dissenting)
I agree with the majority's answer to the first of the certified questions here, but not its answer to the second question. I write separately to express my concern about the reach of the majority's analysis, and to reiterate my belief we have ignored the plain language of the Washington product liability act (WPLA), chapter 7.72 RCW.
The majority answers the first question posed to us by the United States Court of Appeals for the Ninth Circuit by indicating a plaintiff may establish a prima facie case that a product's design is defective for purposes of RCW 7.72.030(1)(a) by proving the existence of an alternate product to the product manufactured by the defendant. The majority holds 'a plaintiff may satisfy the requirement of showing an adequate alternate design by showing that other products can more safely serve the same function as the challenged product.' Majority op. at 12. I agree.
The majority also notes in footnote 8 the statutory requirement that an adequate alternate design must be shown to be practical and feasible. Again, I agree. 'The plaintiff thus bears the burden of demonstrating an alternative design that was practical and feasible.' Philip A. Talmadge, Washington's Product Liability Act, 5 U. Puget Sound L. Rev. 1, 9 (1981).
My larger concern with the majority's answers to both questions in this case, however, is that the majority perpetuates and further confuses our law on defective design in product liability law. See, e.g., Soproni v. Polygon Apartment Partners, 137 Wn.2d 319, 333-39, 971 P.2d 500 (1999) (Talmadge, J., concurring and dissenting).
Ironically, the majority's analysis of a design defect case employs the traditional risk-utility test that is the essence of the negligence analysis famously set out by Judge Learned Hand in United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) ('if the probability be called P; the injury , L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B <{is less than} PL.'). Yet, the majority continues to adhere to the fiction we first espoused in , that the Legislature really did not mean negligence when it used that word in RCW 7.72.030(1) and instead we should employ a strict liability analysis to design defect cases that focuses only on the reasonable safety of the product. Falk, 113 Wn.2d at 651.
We perpetuate analytical mush when we say on the one hand, as the majority
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