State Supreme Court upholds “consumer expectations” test in product liability cases

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The Florida Supreme Court on Thursday upheld a more subjective legal test for one type of product liability cases brought in the state.

The court, in a case against the Union Carbide Corp., reinstated a $6.6 million judgment for a man who said he developed a form of cancer after exposure to asbestos that the company made and sold. Breathing in asbestos fiber has long been linked to lung cancer and other diseases, and symptoms can take decades to develop.

Justice Barbara Pariente, writing for the 5-2 majority, said an appellate court erred when it reversed a verdict in favor of plaintiff William P. Aubin, a home builder who said he had worked with asbestos-containing material made by the company decades ago.

The state’s 3rd District Court of Appeal said the trial court should have applied the newer “risk utility” test in design defect cases, in which plaintiffs claim they were injured by a product and its design itself made it unreasonably dangerous.

Risk utility requires determining whether the benefits of using a product as it’s designed outweigh the risks of harm from the way it’s made. It also makes plaintiffs have to “establish a reasonable alternative of how a product could have been designed,” the court explained.

Consumer expectations, on the other hand, focuses on whether the user of a product should have expected a product to be dangerous when used the correct way. For example, courts have ruled against victims if they find that a product’s danger is obvious.

The difference is that risk utility is more objective, weighing different external factors, and that the consumer expectations premise is more subjective, requiring a judgment call on what a reasonable person should think is dangerous.

“(T)he consumer expectations test … best vindicates the purposes underlying the doctrine of strict liability,” the opinion said. Strict liability is the legal doctrine of liability for injuries without proving fault.

Justices Charles Canady and Ricky Polston dissented because of another legal issue, saying the trial judge “improperly permitted the jury to find Union Carbide liable simply because (the company) did not directly warn Aubin about the dangers of asbestos.”

Jim Rosica

Jim Rosica is the Tallahassee-based Senior Editor for Florida Politics. He previously was the Tampa Tribune’s statehouse reporter. Before that, he covered three legislative sessions in Florida for The Associated Press. Jim graduated from law school in 2009 after spending nearly a decade covering courts for the Tallahassee Democrat, including reporting on the 2000 presidential recount. He can be reached at [email protected]


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