When No Good Deed Goes Unpunished – The Conundrum Surrounding Making “Safety Devices” Optional

Introduction

While product liability statutes across the United States may include slight variation, the underlying requirements to prove a design defect claim are, in a broad sense, similar.   Section 2(b) of the Restatement Third, Torts: Products Liability (1998) ( “Restatement”), notes as follows:

A product . . . is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe. 

Product liability litigation frequently involves litigants and their retained experts battling over the issue of what constitutes a “reasonable alternative design.”  Questions of feasibility, practicality, cost-effectiveness, and customer desirability are often debated during the course of the litigation.   Plaintiff’s attorneys invest significant sums of money hiring design experts to opine as to the existence of a “reasonable alternative design” that is not only feasible and practical but could have been implemented for a “reasonable” cost.  Defense counsel push back through in-house documentation, corporate representative testimony, and retained expert opinions to undermine the Plaintiff’s theories.  Frequently, defense counsel steer product litigation to federal court in an effort to characterize the Plaintiff’s expert as promoting nothing more than junk science, the proposed alternative designed is neither feasible nor practical, and contend the Plaintiff’s expert’s opinions do not satisfy Federal Rule of Evidence 703 as detailed in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). See, i.e.

The battles in a design defect case take on a decidedly different flavor when a product manufacturer offers a safety device as an option.  Put another way, when product manufacturers offer a safety device as optional, the “alternative design” not only exists but has been presumably been developed, tested, and determined to be a feasible and practical offering.  Plaintiff’s attorneys need not invest in an expert to theorize as to the existence of a proposed alternative design . . . the defendant manufacturer has already “done the work.”

Case Law History

A New Jersey case frequently cited as an early example involving a manufacturer offering safety devices as an option is Bexiga v. Havir Mfg. Corp., 290 A.2d 281 (N.J. 1972).  In that case, the product at issue was a punch press and the optional safety device was a two button activation switch – in order to activate the press, a user would have to press two buttons simultaneously, ostensibly to keep the operator’s hands out of the point of operation.  The press manufacturer offered the two button system as an option to its customers.  The New Jersey Supreme Court held that “the manufacturer is in the best position to install safety devices” on industrial machinery and those decisions “should not be left to purchasers.”  Put another way, the New Jersey Supreme Court rejected the idea of a manufacturer delegating safety decisions to its customers.  The only exception identified in its ruling was, where the safety device made the equipment “unusable for its intended purpose.”  Logically, if the safety device rendered the product “unusable,” the safety device would not be practical for its intended operation and, thus, would not be considered a “reasonable alternative design.”

The evolution of optional safety device case law is exemplified in two cases from 1978 – Biss v. Tenneco, Inc. 409 N.Y.S.2d 874 (App. Div. 1978) and Verge v. Ford Motor Co., 581 F.2d 384 (3d Cir. 1978).  Biss involved a case where the manufacturer designed and sold vehicles (known as loaders) and offered a roll-over protective structure as an option.  Verge addressed a situation where the manufacturer of a garbage truck offered a back-up alarm as a safety option.  In these two cases, the courts analyzed the purchasers’ sophistication and expertise when assessing whether the purchasers should be permitted to decide whether an optional safety device was needed for their particular use.  The gravamen of the Biss and Verge opinions is that safety devices may be offered as options on “multi-functional products if there is no standard safety feature that will allow each function to operate unimpeded.”  Thus, if a specific product function impeded by the safety device (i.e. roll-over protective structure impeding ability of a tractor to maneuver through the low hanging branches in an orchard), the manufacturer of the tractor could offer the safety device as an option and the purchaser could be in the best position to know whether it needs the safety device.

In 1999, a case in New York – Scarangella v. Thomas Built Buses, 717 N.E.2d 679 (NY App.1999) – identified a number of factors for the trial court to analyze in a design defect case (What was safety device?).  In Scarangella, the Court held that a product which fails to incorporate safety devices is not defective as a matter of law if:

• The purchaser is thoroughly knowledgeable about the product and its use
• The purchaser is aware of the availability of the safety device
• In some normal uses, the product is not unreasonably dangerous without the safety device; and
• The purchaser can balance the benefits and risks of not having the safety device for the purchaser’s intended use

The Court noted, under many circumstances a product will be capable of multiple uses, some of which are reasonably safe even without the optional equipment.  Moreover, “oftentimes” the buyer will be in a better position than the manufacturer to know whether the machine will be put to such a use.

Post-Scarengella, the results have been somewhat mixed.  For example, ten years after the Scarangella opinion, the New York Court of Appeals (Passante v. Agway Consumer Products, 2009 NY Slip Op. 2009) addressed a case involving an optional presence device that attached a tractor-trailer to a loading dock.  As designed, the device intended to provide an indication to a driver when it was safe to drive the tractor away from the dock as well as when it would be safe to enter the trailer.  The buyer declined to purchase the option and the Plaintiff suffered injuries.

A split decision (4-3) of the New York Court of Appeals concluded that the factors cited above had not been met and, thus, defendant was not entitled to summary judgment.  The dissent accused the majority of effectively overturning Scarangella and pointed to potential negative consequences for manufacturers selling equipment into the state.

In contrast, the 8^th Circuit Court of Appeals, applying Iowa law, adopted an “optional equipment doctrine” in Parks v. Ariens Co., 829 F.3d 655 (8^th Cir. 2016).  In that case, the plaintiff was killed while operating a riding lawn mower.  Plaintiff was operating the lawn mower on an incline and suffered fatal injuries when it tipped over and rolled on top of him.  The manufacturer offered a roll-over protection structure as an optional safety device.

Plaintiff contended the lawn mower was unreasonably dangerous by failing to provide the roll-over protection structure as standard equipment.  Ariens countered by arguing that, if a purchaser is informed of available safety options, the duty to exercise reasonable care in selecting options falls upon the purchaser. [i]   Although noting the Iowa Supreme Court had not addressed the specific issue, the trial court cited the following cases to support the conclusion that lawn mowers, tractors, and forklifts are not “unreasonably dangerous” simply because the roll-over protection was offered as an option:

• Wagner v. International Harvester, Inc., 611 F.2d 224 (8^th 1979) (applying Minnesota law)[ii]
• Austin v. Clark Equipment Co., 48 F.3d 833 (4^th 1995) (applying Virginia law)
• Morrison v. Kubota Tractor Co., 891 S.W.2d (Mo. Ct. App. 1994) (applying Missouri law)
• Butler v. Navistar Int’l Transp. Corp., 809 F.Supp. 1202 (W.D. Va. 1991) (applying Virginia law)
• Davis v. Caterpillar Tractor Co., 719 P.2d 324 (Colo. Ct. App. 1985) (applying Colorado law)
• Scallan v. Duriron Co, Inc., 11 F.3d 1249 (5^th 1994) (applying Louisiana law)

The 8^th Circuit recognized courts differ in how they approach the “optional equipment doctrine” but cited the Scarangella opinion as providing the “typical formulation.”[iii]  (emphasis added)

One can certainly see that, while there may be a trend towards deference to the product manufacturer/designer in certain type of fact scenarios, it is far from a cut-and-dried analysis.

Product examples with potential for making option safety devices standard[iv]

The chart identifies products from a broad swath of industries.  Kitchen appliances, gas cans, hose reels, and fryers could all be considered “consumer” goods.  In contrast, forklifts, printing presses, and conveyor belts would fall into the category of “industrial” goods. 

The Scarangella approach (identified by the 8^th Circuit in Parks as the “typical approach”) includes examining whether “the purchaser is thoroughly knowledgeable about the product and its use” and whether “the purchaser is aware of the availability of the safety device.”  Developing documentary evidence and oral testimony regarding those two factors when the buyer/user of the equipment is purchasing directly from the manufacturer or a manufacturer’s representative may not be particularly difficult.  Moreover, where the injured party who ultimately decided not to purchase the safety device is the person complaining about an injury which could have been prevented had they chosen differently, a court may not have much empathy.

Contrast that situation where a corporate buyer’s employee is injured while using an industrial press that did not include an optional safety device.  Sure, the product purchaser may have been “thoroughly knowledgeable about the product and its use” and “aware of the availability of the safety device” but the buyer is not the “victim” of the accident.  The buyer’s employee likely played no role in the calculus of whether the safety device should have been purchased and incorporated into the industrial press.  In such a situation, a court may be called upon to determine whether the optional safety device doctrine should be applied when the injured party (or decedent) played no role in the decision-making process.   Given that the employee’s only recourse against the employer is likely through the applicable worker’s compensation statute, a court may be inclined to look at the optional safety device doctrine through different colored glasses when the employee’s injuries could have been prevented if the industrial press included the safety device as standard, as opposed to optional.

Practical Considerations

Product manufacturers face an interesting conundrum when assessing whether to make a “safety device” optional.  Although the optional “safety device” may make the product/equipment less safe in certain applications and most product liability statutes impose liability upon manufacturers “the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller . . . and the omission of the alternative design renders the product not reasonably safe,” case law certainly suggests that – under certain circumstances – it is perfectly acceptable to offer a “safety device” merely as an option.

What can be done to mitigate risks?  A common theme in these types of cases is the base product, without optional equipment, is reasonably safe for its intended use.  Formulating and adhering to a robust design/safety analysis (FMEA/Risk-Hazard Analysis) process, including documenting the results of that analysis forms a solid foundation upon which a product defense can be built.  For all practical purposes, a product liability lawsuit is an exercise in 20/20 hindsight.  The plaintiff’s attorney will challenge design decisions made years, perhaps decades, before the accident.  Does your design file include “reasons” why you made the “safety device” optional or will your corporate representative be forced to testify at trial and risk having a jury view his/her testimony as nothing more than after-the-fact “excuses.”

Pay particular attention to industry standards.  While product liability defense lawyers and product manufacturers/designers know many standards (i.e. ANSI, NFPA) are not the equivalent of a code or statute, a jury lacks such sophistication.  If an industry group has drafted an industry standard suggesting that a safety device should be included in product design, a manufacturer/designer runs significant risk if it chooses to deviate from that standard and offers the safety device as an option.  A savvy products liability plaintiff’s lawyer can very easily characterize on optional “safety device” that deviates from an industry standard as the manufacturer/seller trying to gain additional profit from the sale of “safety.”

Similar to the above, pay attention to what competitors in the market are doing.  If a manufacturer/seller is offering a “safety device” as an option but its competitors are offering it as standard equipment, significant risk exists as to whether the product/equipment should be offered without the safety device.  If others in the industry are offering the safety device as an option, it is likely prudent to have a working understanding as to how the competitors are presenting the safety device to potential customers so that the customer can make a well-informed decision.   If a manufacturer/designer finds itself the subject of litigation involving optional safety equipment, it should employ practices/strategies designed to ensure that:

• The purchaser is sophisticated with respect to the product;
• The purchaser is knowledgeable about the optional safety device; and
• The purchase is making an educated decision as to whether the optional safety device is needed in their particular application.

From a corporate  cultural standpoint, will the manufacturer/designer’s corporate representative be able to easily answer the question: “Why did your company make the safety feature optional as opposed to making it standard?” and will the manufacturer/designer’s document production support the answer:

• Does internal design communication support the decision to make the “safety device” optional?
• Is the accompanying product literature consistent with the decision to make the “safety device” optional?
• Are there other similar accidents/incidents which undermine decision to make the “safety device” optional?
• Does the designer/manufacturer have a Safety Team which regularly reviews accident data and potentially related design issues?

Put another way, does the designer/manufacturer’s documentation support a determination that it maintains a culture of safety?

Conclusion

Like many things in product liability law, there are no black-and-white answers when it comes to offering safety devices as options.  The best “offense” to offering such devices as optional is to employ sound design-making decisions, keep on top of industry standards and competition in the industry, maintain contemporaneous documentation of design-making decisions, and adopting best practices to best ensure that the purchaser is fully educated about the costs/benefits of the optional device so that he/she can decide based on full information.

As the cases above reflect, adopting such action may not be a “silver bullet” when defending a product liability lawsuit but it almost certainly places the manufacturer/designer in the best possible position to seek summary judgment, or if unsuccessful at that stage, present a compelling case to the jury as to why the “safety device” was offered as an option or upgrade.

[i] Notably, Ariens’ counsel cited Biss v. Tenneco, Inc. 409 N.Y.S.2d 874 (App. Div. 1978) as support for their position.

[ii] The 8^th Circuit’s opinion pointed out that, as of 1984, the Minnesota Supreme Court held that the equipment must have multiple uses and the optional safety device must impair at least one of those uses.  If those prongs are met, it is up to the buyer to decide whether to buy the optional safety equipment.  The 8^th Circuit noted that Minnesota’s approach has “failed to gain widespread acceptance.”

[iii] As of the date of this memorandum, Parks remains good law in the 8^th Circuit and has not been cited negatively by any other court in the United States.

[iv] The chart was originally produced as part of an ALFA PLCT presentation in 2021 by Ray Moore from Murphy & Grantland, 4406-B Forest Drive, Columbia, South Carolina 29206 and Robert Mullins from Gibson McAskill & Crosby, 69 Delaware Avenue, Suite 900, Buffalo, New York 14202.