ABSTRACT
… In this Article, we propose that courts adopt an amended version of the consumer expectations test that we call the ‘specific consumer expectations test’. The specific consumer expectations test would apply to any product or product component for which consumers have clear, articulable ex ante expectations about the function of the product. Under the specific consumer expectations test, a defendant is liable if consumers expected such a product to reduce a particular risk, and the product in fact increased that risk. Similarly, if a product was intended to convey a particular benefit, but in fact harmed consumers along the same dimension, the test is violated. For example, if defective airbags increased the risk of injury after a motor-vehicle crash rather than decreased the risk, that product would fail the specific consumer expectations test. By shifting the law’s focus from measuring the magnitude of consumer expectations to a simpler identification of the direction that consumers expected risks to change, the specific expectations test increases the administrability of products liability law and captures most of the incentives that the traditional consumer expectations test could theoretically provide. In particular, firms are incentivized to produce products that never increase risks unexpectedly, and consumers are empowered to purchase products which reflect their willingness to pay for risks. In cases where consumers lack specific expectations, courts should apply the risk-utility test to minimize unanticipated accident costs to consumers and firms …
Masterman, Clayton and Viscusi, W Kip, The Specific Consumer Expectations Test for Product Defects (February 18, 2019). Indiana Law Journal, forthcoming; Vanderbilt Law Research Paper No 19-08.
First posted 2019-04-06 07:28:32
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