WPI 110.02 Manufacturer's Duty—Design

Use this instruction if there is a claim against a manufacturer that the product was not reasonably safe as designed. If only one of the two tests is being used by the court, modify the instruction accordingly.

Use bracketed material as applicable. Use the bracketed paragraph concerning foreseeability when there are claims of negligence as well as strict liability or when foreseeability concepts have otherwise been injected into the trial. The bracketed “at fault” language is intended to be used in conjunction with WPI 110.31.01.02 (defining “fault”) and with WPI 110.31.01.01 (the corresponding special verdict form) for cases involving mixed standards of care (e.g., negligence and strict liability); see the Notes on Use and Comments for WPI 110.31.01.01 (the corresponding special verdict form) and WPI 110.31.01.02 (defining “fault”).

A special instruction may be needed if the product defect did not cause the accident, but it is claimed that the defect was a proximate cause of enhanced injury. See the discussion in the Comment below; see also WPI 110.02.02 (Crashworthiness—Manufacturing and/or Design Defect).

Use WPI 110.04 (Seller—Manufacturer—Defined) with this instruction.

RCW 7.72.030(1).

The format of this instruction has been modified for this edition. No substantive change is intended. This instruction as now formatted isolates the phrase “was outweighed by” in the first test to emphasize which factors are being balanced against which.

The Washington Product Liability Act (WPLA), RCW Chapter 7.72, states in part that a “product manufacturer is subject to liability to a claimant if the claimant's harm was proximately caused by the negligence of the manufacturer in that the product was not reasonably safe as designed.” RCW 7.72.030(1). The Act provides two different ways for plaintiffs to show that a product was defectively designed.

First, the plaintiff may use the risk-utility approach from RCW 7.72.030(1)(a), which provides that:

Second, the plaintiff may show under RCW 7.72.030(3) that the product “was unsafe to an extent beyond that which would be contemplated by the ordinary consumer.”

The risk-utility approach of RCW 7.72.030(1)(a) and the consumer-expectations approach of RCW 7.72.030(3) are alternative, independent means of proving defective design. A plaintiff needs to prove only one, not both, of these alternatives. Ruiz-Guzman v. Amvac Chem. Corp., 141 Wn.2d 493, 502–03, 7 P.3d 795 (2000); Falk v. Keene Corp., 113 Wn.2d 645, 782 P.2d 974 (1989).

Risk-utility test—Strict liability. The term “negligence” has not been included in this instruction because the risk-utility test involves strict liability principles that are set forth in Seattle-First National Bank v. Tabert, 86 Wn.2d 145, 542 P.2d 774 (1975), notwithstanding the reference in RCW 7.72.030(1) to negligence. Soproni v. Polygon Apartment Partners, 137 Wn.2d 319, 971 P.2d 500 (1999); Falk, 113 Wn.2d 645; Couch v. Mine Safety Appliances Co., 107 Wn.2d 232, 239 n. 5, 728 P.2d 585 (1986). In Falk, the court held that that the “negligence” referred to in RCW 7.72.030(1) is the “negligence of the manufacturer in that the product was not reasonably safe.” Falk, 113 Wn.2d at 657 (italics supplied by court). The court in Falk specifically approved WPI 110.02 in its pre-2012 form. Falk, 113 Wn.2d at 657.

Risk-utility test—Balancing of factors. The risk-utility test in RCW 7.72.030(1)(a) requires a balancing of factors. In Ayers v. Johnson & Johnson Baby Products Co., 117 Wn.2d 747, 818 P.2d 1337 (1991), a case alleging that the manufacturer failed to provide adequate warnings with a product (baby oil), the court stated:

Ayers, 117 Wn.2d at 763.

The statutory balancing test has a separate proviso for firearms and ammunition. RCW 7.72.030(1)(a).

Risk-utility test—Alternative design—Other products. Consideration of reasonably safe alternative designs is not limited to analysis of the product at issue in the case. Rather, a plaintiff may “establish an alternative safer design through ‘other products already available on the market [that] may serve the same or very similar function at lower risk and at comparable cost. Such products may serve as reasonable alternatives to the product in question.’” Ruiz-Guzman, 141 Wn.2d at 504 (italics supplied by court) (quoting Restatement (Third) of Torts § 2 cmt. f, at 24 (1998)). The court rejected the manufacturer's argument that the plaintiff had to show the existence of an alternative design that could have been incorporated into the defendant's product at the time it was manufactured. Ruiz-Guzman, 141 Wn.2d at 499, 504–05. Accordingly, the “other products” may include products produced by the defendant manufacturer's competitors. See Ruiz-Guzman, 141 Wn.2d at 503–04.

Because the statute requires that an alternative design be “practical and feasible,” RCW 7.72.030(1)(a), consideration of other products is limited to alternative designs or products that are “technologically achievable and economically viable.” Ruiz-Guzman, 141 Wn.2d at 505 n.8.

Enhanced injury. In Couch v. Mine Safety Appliances Co., 107 Wn.2d 232, 241–43, 728 P.2d 585 (1986), the court discussed enhanced injury instructions in a design defect action brought under RCW 7.72.030. See also Baumgardner v. Am. Motors Corp., 83 Wn.2d 751, 522 P.2d 829 (1974); WPI 110.02.02 (Crashworthiness—Manufacturing and/or Design Defect).

Industry custom. Under RCW 7.72.050(1), evidence of custom in the product seller's industry or of technological feasibility, whether relating to design, construction, or performance of the product, may be considered by the trier of fact. See also Crittenden v. Fibreboard Corp., 58 Wn.App. 649, 794 P.2d 554 (1990) (trial judge committed reversible error by rejecting an instruction that prohibited jurors from considering industry customs and state of the art evidence). Evidence of compliance with codes or standards is relevant, but not determinative, in analyzing either the consumer-expectations approach or the risk-utility approach. Soproni, 137 Wn.2d at 328; Falk, 113 Wn.2d at 655.

RCW 7.72.030 modified previous case law. See Lenhardt v. Ford Motor Co., 102 Wn.2d 208, 214–15, 683 P.2d 1097 (1984) (in a case involving a pre-WPLA claim, a defendant may not introduce evidence of compliance with industry customs and standards unless the plaintiff first raises this issue).

Consumer expectations. See the Comment to WPI 110.01 (Manufacturer's Duty—Defect in Construction).

Unavoidably unsafe products. See the Comment to WPI 110.02.01 (Manufacturer's Duty—Design—Unavoidably Unsafe Products—Negligence—Comment k).