You Can’t Put Lipstick on a Pig: Products That Fail by Design

As consumers, we trust that when we venture into the marketplace—whether going to store or shopping online—the products we purchase will be reasonably safe. But is that implicit trust ever misplaced? The answer is yes. One of the ways is because products are made as intended (as designed), but the design itself is flawed.

Why Do We Trust Product Designers?

Many of us (understandably) believe a product is safe for a host of reasons. One is brand recognition and reputation. Meaning, because Product X is packaged/sold under a particular brand name, it comes with an added sense of security that it will not cause harm if used as intended. But where does that recognition and reputation come from?

Sometimes it’s a matter of time. Maybe you’ve been conditioned to feel like ABC Corp. has consistently provided quality products over a long period of time, so Product X must also be safe.

Other times we have heard friends, family, or influencers share positive experiences, combed through online reviews from strangers who report their experiences seem positive, or figured out that ABC Corp. has won certifications and awards recognizing it as a reputable organization.

And sometimes, we just judge things based on a combination of personal factors. Maybe a particular advertisement persuaded or conditioned us, or we had a good personal experience buying another product from the same company a few years ago.

Whatever the reasons, the obvious point is that consumers aren’t in the habit of buying products they are fearful will injure or kill them. We buy things we think will help us, bring us enjoyment, and all without compromising the safety of ourselves or our loved ones. And that’s the implicit trust we place in the marketplace.

Unfortunately, sometimes our trust in the large corporations involved in making and sell products is misplaced. Maybe it was something that went awry in the manufacturing or fabrication process, but in this post I want to talk specifically about when products are defective (and dangerous) by design.

As a lawyer licensed in Florida and Georgia handling product defect cases where our theory of liability is based on design, I wish only to report my opinion on the matter. To educate and inform, but not offer legal advice. Every product—and every personal injury or wrongful death case involving a design defect—is unique and must be treated as such. The goal of this post is to apprise you about general legal concepts from each jurisdiction and how they stack up against one another once compared.

Ways Companies are Liable for Defectively Designed Products:

In both Florida and Georgia, a plaintiff (a consumer injured by a product) can bring a strict liability or negligence claim addressing a defectively designed product. And while these concepts may overlap to a degree, they are distinct theories of liability. And there’s a big difference in how Florida and Georgia approach strict liability in design defect cases.

As a general matter, negligence is generally a four-part inquiry in both Florida and Georgia: can the plaintiff prove (1) the defendant owed a duty (2) that was breached (3) which was a legal cause of (4) loss, injury, or harm? If so, they win. If not, they lose. But in products liability cases involving design defect claims, the analysis is more nuanced.

A design defect claim under Georgia law doesn’t focus on the use of the product, it balances the risks inherent in a product design against the utility of the product as designed. This is known as “the risk-utility analysis.” See Ogletree v. Navistar, 522 S.E.2d 467 (Ga. 1999). It’s also found in the Restatement (Third) on Torts, a treatise that, while not law itself, aims to serve as a benchmark of general principles of law. Restatements are produced by the American Law Institute (ALI), a group of judges, academics, and practitioners, but that’s a topic for another day.

In Georgia, the risk-utility test is a case-by-case determination. There’s no finite set of factors declared comprehensive or applicable in all cases. Banks v. ICI Americas, Inc., 450 S.E.2d 671 (Ga. 1994). As a lawyer representing consumers, I appreciate that this analysis is always reserved for the jury, not the court, unless a defendant corporation can “plainly and indisputably” show “an absence of any evidence that a product as designed is defective,” which is extremely difficult to do. Ogletree (emphasis in original).

The “heart” of a design defect case in Georgia is whether the company at issue was reasonable in selecting from alternative product designs and adopted the safest feasible one. A key question to ask is if the defendant had adopted a reasonable alternative design would it have reduced the foreseeable risks of harm presented by the product? If so, you’ve got a good design defect claim. If you (the consumer-plaintiff) can’t prove that a reasonable alternative design existed, or that such an alternative would not have reduced the foreseeable risks of harm presented, then you will likely lose.

As one law review article put in years back, “When a jury decides that the risk of harm outweighs the utility of a particular design (that the product is not as safe as it should be), it is saying that in choosing the particular design and cost trade-offs, the manufacturer exposed the consumer to greater risk of danger than he should have. Conceptually and analytically, this approach bespeaks negligence.” Birnbaum, Unmasking the Test for Design Defect: From Negligence to Strict Liability, 33 Vand. L. Rev. 593m 610 (1980).

Many Georgia cases involving defectively designed products see the clear overlap between strict liability and negligence claims. They basically carry the same elements, are aimed at the same alleged shortcomings, and it’s really just a matter of semantics in distinguishing between the two. (listing cases). But for strict liability there is a statute that requires plaintiffs to prove that, when sold, a defendant's product was “not merchantable and reasonably suited to the use intended, and its condition when sold [wa]s the proximate cause of the injury sustained.” O.C.G.A. § 51-1-11. That said, in both negligence and strict liability causes of action for a product defect in Georgia, the defendant’s conduct is judged by the traditional duty of reasonable care.

Interestingly (at least to me as a products liability lawyer licensed in both Florida and Georgia), not only does Florida not use the same approach as Georgia, but the Florida Supreme Court has been very clear why…and it’s a pro-consumer viewpoint.

Unlike Georgia, Florida does not use the risk-utility test for strict liability design defect claims; instead, it uses the “consumer expectations” test. Aubin v. Union Carbide Corp., 177 So. 3d 489, 513 (Fla. 2015). Under the “consumer expectations” test, a company that sells a product in a defective condition unreasonably dangerous to the user or consumer or to his or her property is liable for physical harm caused if, in pertinent part, it was expected to and did reach the user or consumer without substantial change in the condition in which it was sold. West v. Caterpillar Tractor Co., Inc., 336 So. 2d 80, 84 (Fla. 1976). Stated another way, “a product is unreasonably dangerous in design because it failed to perform as safely as an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner.” Aubin, 177 So. 3d at 502.

So while strict liability design defect claim in Georgia requires the plaintiff to prove the existence of a reasonable alternative design, Florida does not. This means there’s less of a burden heaped on the consumer-plaintiff. Under Florida law the question is simply whether you can prove that (1) a product (2) produced by a manufacturer (3) was defective or created an unreasonably dangerous condition (4) that proximately caused (5) injury or death. Brosius v. Home Depot, Inc., 2022 WL 1272087, at *4 (M.D. Fla. Feb. 8, 2022). And the analysis for prong (3) is the “consumer expectations” test, which is found in the Restatement (Second) on Torts, not the Restatement (Third) on Torts. The Second Restatement was published between 1965-1979 and is widely cited and used by courts. In 1998, however, the Third Restatement was published. Florida still follows the Second Restatement but Georgia follows the Third Restatement.

In expressly rejecting the Third Restatement (and therefore the “risk-utility” test used by Georgia), the Florida Supreme Court observed how it blurs the lines between strict liability and negligence claims, focuses on the conduct of the manufacturer and not the design of the product, and “imposes a higher burden on consumers to prove a design defect than exists in negligence cases—the antithesis of adopting strict products liability in the first place.” Aubin, 177 So. 3d at 505. “The Third Restatement, in some instances, could insulate a manufacturer from all liability for unreasonably dangerous products solely because a reasonable alternative design for that type of product may be unavailable.” Id. It basically “requir[es] the injured consumer to step into the shoes of the manufacturer and prove that a reasonable alternative design was available to the manufacturer.” Id. at 507. And this, according to the Florida Supreme Court, “has been harshly criticized.” Id. (listing authorities, including one that observed how the reasonable alternative design requirement is not supported by public policy or economic analysis because the cost of processing a case will make it economically impossible to produce a reasonable alternative design in a small products liability case).

At present, it seems like Florida remains in the majority (more pro-consumer, if I dare say) of jurisdictions around the United States in its rejection of the risk-utility test, whereas Georgia stands in the minority.