Emory Law Journal


Modern technology is advancing at an unprecedented rate, and further advancements show no signs of slowing down. As technology rapidly evolves, so does the complexity of product designs. However, as these advancements occur, the tests employed by courts to determine whether a product design is defective remain largely unchanged. There are two main tests used by jurisdictions to determine whether a design is defective. The first is the consumer expectations test, which provides that when a product used in a reasonably foreseeable manner is more dangerous than an ordinary consumer would expect it to be, it is defective. The second test is the risk-utility test, which balances the utility and safety of a product design against the dangers and costs of the design. When the dangers of a product design outweigh its benefits, the design is defective.

Both the consumer expectations test and the risk-utility test are inadequate to address complex product designs. The consumer expectations test is not adequate because technologically advanced products are simply too complex for consumers to have a real expectation of how the product should perform in every type of situation. Similarly, the risk-utility test is not sufficient because it often requires a showing of an alternative reasonable design to prove a design is defective. Complex and cutting-edge products will often not have an alternative design because the products are so new, and therefore cannot be assessed by the risk-utility test. In response to these shortcomings, some jurisdictions employ hybrid formulations of these tests, yet even the hybrid tests are insufficient to address the growing complexity of product designs. As more and more complex products enter the market, there needs to be a design defect test that is better suited to address these concerns. Therefore, as an alternative to the tests currently employed, this Comment argues for the adoption of a new design defect test.

This Comment proposes a two-part balancing test, called the dual risk-utility test. The dual risk-utility test separates the alternative design question from other factors considered in the traditional risk-utility test. Under the first prong, the availability of a reasonable alternative design is determined by identifying an alternative design and then balancing the benefits of implementing such a design against the feasibility of adopting it. If on balance there is no reasonable alternative design, or if no reasonable alternative design can initially be identified, then the second prong of the test balances the costs of the current design against the benefits of the current design. Under this prong, if the current design’s risks outweigh its benefits, the design is defective. The two-prong nature of this test is best suited to address complex products because numerous complex products do not have a feasible alternative design and therefore need another mechanism, such as this test’s second prong, to determine if there is a design defect.