Product Liability Advisory
[authors: Kelsey Black and Ken Waterway]
The Florida Supreme Court has finally issued a decision on the product liability jury instructions proposed in July 2009. In re Standard Jury Instructions in Civil Cases –Report 09-10 (Products Liability), No. SC09-1264 (May 17, 2012) (The Decision). In big picture terms, the most significant aspect of the decision is probably Justice Pariente’s concurrence “urg[ing] the appellate courts” to certify as a question of great public importance the proper definition of design defect. The Decision, Pariente, concurring, at p. 10.
This is an issue that has plagued Florida product liability lawyers for as long as the state’s standard jury instructions have defined design defect in terms of consumer expectations or risk outweighing utility (Fla. Std. Jury Instr. (Civ.) PL5). While the general direction of American law (at least as reflected by the Third Restatement) is certainly moving away from consumer expectations as a sufficient basis for design defect liability, the Florida committee’s proposal (403.7) puzzlingly enshrined consumer expectations as the sole measure of an unreasonably dangerous design. The court wisely (and unanimously) rejected this proposed instruction, and Justice Pariente wrote at some length to illustrate that Florida law is indeed “in a state of flux” on the design defect question, and that the status quo was the “best course” pending a “definitive substantive decision” on the definition of design defect. Id. at pp. 7-10. Justice Pariente specifically acknowledged that Florida is going to have to confront the issue of whether to adopt the Third Restatement regarding the definition of design defect (i.e., a product design for which the foreseeable risk of harm could have been avoided or reduced through a reasonable alternative design, the omission of which renders the product not reasonably safe). Id. at p. 10.
Judging by what has been described as a “barrage of advocacy” on the proposed design defect instruction (Id. at p. 8), both plaintiff and defense interests will be actively vetting product liability cases for the opportunity to attempt to make favorable law in response to Justice Pariente’s invitation.