FROM: Jason MacLeod
Date: October 25, 2009
RE: File #L10109, Laitala Products Liability Summary Judgment Motion
Statement of Facts
This memo’s purpose is to analyze the facts and applicable law concerning Mr. Laitala’s products liability claim against H.O. Sports, the product manufacturer, and conclude whether Mr. Laitala’s design defect claim will survive a motion for summary judgment. On July 8th, 2008, Mr. Laitala and his family went to a sporting good store called Sport Authority and bought a pre-inflated display model of an H.O. Sports inner tube called Black Ice. The tube is five feet in diameter and holds between 1-3 adults and has six handholds. The Laitalas, after buying the inner tube, drove back to their house on the lake in Eastern Washington.
When the Laitala family arrived home, Mr. Laitala and his son Matt, a six-foot fifteen year-old, took the inner tube onto the lake to be pulled behind a boat. Matt, an experienced inner tube user, grabbed hold of handles while his father pulled him with the boat. The boat was traveling fifteen to twenty miles an hour. After riding for an unspecified amount of time, Matt boarded the boat. Once aboard, Mr. Laitala noticed that his son’s elbows were bleeding. Matt’s elbows had multiple lacerations that were the result of riding H.O. Sports’ inner tube. No other member or friend of the Laitala family rode in the inner tube after Matt’s injury.
The Laitala family used over-the-counter ointments to treat Matt’s injuries. After a couple of weeks, Matt’s injuries were not healed. The lacerations on his right elbow were infected. The Laitala family took Matt to a doctor who prescribed antibiotics for the infection. The doctor stated that Matt’s infection had set into the bone. Matt’s injury resulted in permanent damage of his right arm. The condition prevents Matt from making certain movements with his arm as the arm can no longer lock at the elbow. As a result of riding the Black Ice inner tube, Matt can no longer play his favorite sport – baseball.
The design of the Black Ice inner tube is unique from other inner tubes in the same price range.1 First, the air valve is located on the center of the tube. Other inner tubes developed by H.O. Sports place the stem valve on the side of the inner tube. Second, the Black Ice inner tube has a stem valve, which is the minority air valve used in contemporary inner tubes. Most inner tubes use the Boston valve that is a wider valve made of plastic; whereas, the stem valve is thin, long, and made of metal. The stem valve in the Black Ice model sits within an indented six-inch diameter area. A piece of fabric, that flaps up and down, covers the indented area created to house the air valve. The flap adheres to the inner tube by Velcro. The Velcro or the cover itself is the probable cause of the lacerations on Matt’s elbows.
Under Washington States product liability statute, RCW 7.72.030, is Mr. Laitala’s claim for design defect likely to survive a motion for summary judgment when: (1) an H.O. Sports inner tube significantly injured Matt, an experienced inner tube user; (2) the tube caused injury despite Matt’s reasonable tube use consistent with its design; (3) the design of the inner tube placed the stem valve cover near the center of the tube despite similar models with different valve placements; and (4) whether the feasibility of altering the Black Ice tube would change the essential aspect of the product?
The purpose of the Washington State product liability statute is to deter the manufacturing of harmful products and hold liable those manufacturers who injure their consumers. Don B. Dobbs, Torts and Compensation: Personal Accountability and Social Responsibility for Injury 6th Ed. (2009). According to the applicable section of the statute, a manufacturer is held strictly liable if, through negligence, the manufacturer proximately caused the harm suffered by the claimant resulting from an unsafe design. Anderson v. Weslo, Inc., 79 Wn. App. 829, 906 P.2d 837, 906 P.2d 340 (1995). Consequently, the statute protects consumers and encourages product manufacturers to produce items free from design defects. The plaintiff has the burden of proving a design defect by fulfilling the following three requirements: (1) the defendant’s product (2) was not reasonably safe as designed, and (3) the defendant’s product caused harm to the plaintiff. RCW 7.72.030(1).
The first and third elements are not in dispute. First, HO Sports manufactured the Black Ice tube. Second, Matt‘s injury could have been caused only by the inner tube. Matt and his father had only used the inner tube once while on the lake, and Matt’s injuries were apparent only after he exited the inner tube. Therefore, the only disputed element is whether the resultant injuries were caused by a design defect.
The Washington State product liability statute provides two tests to determine a design defect. The common law refers to these tests as: (1) the consumer expectation test; and (2) the risk utility test. Only one test is needed to prove the manufacturer’s product was not reasonably safe as designed. Thongchoom v. Graco Children’s Products Inc., 117 Wn. App 299 304, 71 P.3d 217.
Whether the Consumer Expectation Test is Met
The consumer expectation test states that the claimant must show whether the manufacturer’s product was more dangerous than an ordinary consumer would expect. RCW 7.72.030(3). Under this test, a manufacturer will not be held liable simply because its product caused the claimant‘s harm. To satisfy the test, the plaintiff must prove a design defect existed and the product caused the harm. Thongchoom, 117 Wn. App. 305, 71 P.3d 218. Moreover, the court considers, in light of the plaintiffs’ claim, “the product’s relative cost, the gravity of the potential harm from the claimed defect, and the cost and feasibility of eliminating or minimizing the risk.” Pagnotta v. Beall Trailers, 99 Wn. App. 36, 991 P.2d 732.
The claimants failthe consumer expectation test when the resulting harm of the manufacturers’ products are foreseeable and not beyond the expectations of ordinary consumers. Thongchoom v. Graco and Anderson v. Weslo. In Thongchoom the claimants argued that a baby walker was more dangerous than a normal consumer would expect because their child, when left alone, walked over and pulled a cord that caused a teapot to fall on the child resulting in burns. The court reasoned the purpose of a baby walker was to encourage the mobility of a child; if a child is allowed to move freely, probable hazards are foreseeable by the ordinary consumer. Thongchoom v. Graco Children’s Products Inc., 117 Wn. App 299 306, 71 P.3d 218. Therefore, the ordinary consumer expects the possible dangers created by a baby walker. Similarly, in Anderson, a large trampoline caused a sixteen year-old experienced trampoline user, while attempting a double back flip, to fracture his spine. The claimants argued that the trampoline was more dangerous than a reasonable consumer would expect. Although the claimants did not present any specific evidence, the court ruled on the consumer expectation claim. The court reasoned that a trampoline is bought to jump on; consequently, the dangers of falling are expected. Factoring the height attainable by a trampoline and the distance from the ground, an ordinary consumer could anticipate serious injuries. Anderson v. Weslo, Inc., 79 Wn. App. 838, 906 P.2d 340. Both courts looked to the design and ordinary use of the product to determine if the dangers associated with each were beyond what the ordinary consumer would expect. In both cases, the claimants failed the test because the manufacturers‘ designs and the inherent risks associated with the products were reasonably conceivable to ordinary consumers.
In contrast to the above cases, in Higgins v. Intex Recreation Corp., the court concluded that the manufacturer’s product had a design defect because the product created dangers beyond what an ordinary consumer would expect. Higgins v. Intex Recreation Corp., 123 Wn. App. 828, 99 P.3d 425. In Higgins, the product under scrutiny was a snow tube. The design defect presented by the plaintiff in Higgins was that the manufacturer’s snow tube lacked a steering mechanism. Id. at 829. This defect resulted in the tube rotating backwards and continuing downhill in this position, thereby blinding the rider who could not see any approaching people or obstacles. For this reason, the claimant suffered a serious injury when hit by a snow tube while trying to save a child who was about to be run over by it. The defendant‘s vice-president testified that consumers “may believe that these products have a steering mechanism and [may] misjudge their ability to control them.” Id. at 830. The court concluded that an ordinary consumer may expect the tube to rotate, but would not expect a snow tube to rotate backwards and continue downhill in that position. The court reasoned the design defect created the danger and caused the serious injury suffered by the plaintiff. Id. at 831. Therefore, the serious risk of the snow tube was not clear to the ordinary snow tube user and held the defendant liable for the plaintiff‘s injuries.
H.O. Sports will argue their product acted as designed and the ordinary consumer would expect the harm presented here in Mr. Laitala’s claim. Therefore, H.O. Sports will contend that the consumer expectation test is not met in the present case. First, H.O. Sports could argue that it wasn’t the inner tube itself that caused Matt’s harm but how he used it. Like the baby walker and the associated danger of providing mobility to a child, riding an inner tube at high speeds can create a situation where injuries are reasonably expected. Second, similar to the trampoline in Anderson, H.O. Sports will argue the Black Ice tube is an inherently dangerous product. Both the trampoline and inner tube provide its users with an opportunity to injure themselves despite using the product correctly. For example, an individual being pulled in an inner tube by a boat traveling fifteen to twenty miles an hour on a lake with variable weather and water conditions could expect possible injuries or abrasions from sliding back and forth on the tube. More importantly, this danger increases depending on the variables of boat speed and water conditions, similar to the increasing danger associated with the trampoline when advanced tricks are attempted. H.O. Sports can advance its persuasive argument by utilizing these two previous cases where the consumer expectation test was not met.
On the other hand, Mr. Laitala can assert the consumer expectation test is met in his case by arguing the ordinary consumer would not expect the injuries suffered by his son. Mr. Laitala and his son are both experienced inner tube users and are familiar with the ordinary dangers associated with an inner tube. The Laitala family has never experienced an injury like this on an inner tube before. The Laitala‘s can argue their case distinguishes itself from Thongchoom because they used the product as designed and were aware of the ordinary risks, yet still suffered unique injuries. Like the baby walker, using the inner tube increases the potential for danger due to increased mobility, but unlike the baby walker, the inner tube was used in the correct manner and circumstance. Similar to Anderson, the court may conclude that the tube is inherently dangerous, but the difference between the two is that Matt was using the tube as an ordinary consumer would. Matt and his father did not use the inner tube in an extreme manner as did the injured party in that case. As ordinary users, the Laitala family would not expect to be injured in the form of Matt’s elbow lacerations. The only dangers a reasonable consumer would expect from an inner tube are — falling into the water or serious accidents involving another boat, debris, or drowning. Therefore, Mr. Laitala will argue, perhaps successfully, the injury suffered by Matt was an unexpected result from riding the Black Ice inner tube in its normal and ordinary use.
The court will likely favor H.O. Sports’ arguments concerning the consumer expectation test. H.O. Sports’ argument reflects the danger isn’t the inner tube itself, but how the individual chooses to use the inner tube. An ordinary consumer would expect to slide back and forth riding the inner tube; thus, the injury suffered by Matt is not beyond what an ordinary consumer would expect. H.O. Sports would probably prove the consumer expectation test would not be met in the circumstances in the present case. However, the court may find that Matt’s elbow lacerations are so unique that an ordinary consumer wouldn’t expect that particular injury.
Whether the Risk Utility Test is Met
The common law risk utility test provides a two prong test to determine whether a manufacturer will be held liable for a design defect if their product caused harms which: (1) outweighed the burden on the manufacturer to design a product that would have prevented those harms and (2) the adverse effect that an alternative design that was practical and feasible would have on the usefulness of the product. RCW 7.72.030(3)(a)-(b). The court uses the risk utility test to ascertain whether the harm created by the product is more significant than the burden of designing the product to prevent the harm. To determine whether Mr. Laitala’s claim would survive a movement for summary judgment I will examine two analogous cases.
In Thongchoom, the plaintiffs failed to meet the risk utility test because the baby walker‘s design could not be altered without creating an entirely different product. The claimants argued the baby walker could have been designed to prevent the harm their baby suffered. The court reasoned the only way in which the baby walker could be redesigned to prevent the harm was to create a baby walker in which the baby could stand but wouldn’t be able to move. This alteration would in effect completely change the product. The manufacturer would no longer produce the same product in question. The court could find no feasible alternative design to the baby walker already produced by the manufacturer. Thongchoom, 117 Wn. App. 304. If there is no alternative safer design, then the risk utility test is not met.
In Higgins, the risk utility test was met because the plaintiffs showed the court a safer alternative design to the product in question. The court reasoned that a “plaintiff can satisfy its burden of proving an alternative design by showing that another product ‘more safely serve[s] the same function as the challenged product.” Higgins, 123 Wn. App. 829. The claimants successfully argued that the snow tube could be designed to prevent the harm by presenting evidence of similar safer snow tube designs. The alternative design provided evidence that the snow tube could have been designed without any change to its essential use while avoiding the harms caused in the snow tube‘s original design. The indispensable reasoning behind the claimant‘s success was supported by the presentation of other designs that served the same function as the original product and were safer.
H.O. Sports‘ argument regarding the inapplicability of the risk utility test rests on whether any reasonable design alterations could be made without significantly modifying the essential function of the inner tube. First, the construction of the tube differs from other inner tubes. The company produced this inner tube design so that it would skip over the wake. This is achieved by designing an “exclusive convex shape [that] allows a small contact surface on bottom.”2 By changing the placement of the air valve, H.O. Sports could argue, the characteristic convex shape that makes Black Ice unique is absent. Second, H.O. Sports could argue that they spend more money making the Black Ice tube in this design because it prevents other probable harms associated with different valve placements. If they were to alter the valve placement, then it is possible that the convex design would not be feasible. H.O.’s argument depends on their ability to persuade the judge that placing the valve on any other part of the inner tube would not be feasible or safer.
The success of Mr. Laitala’s argument, regarding the risk utility test, rests on whether a reasonable design alternative is available and could be implemented without significantly altering the essential function of the inner tube. First, Mr. Laitala could present evidence that shows similar inner tubes designed by H.O. Sports and different companies (in the same price range) that have other designs that do not alter the product‘s essential function. This evidence could prove that H.O. Sports can design their inner tube without outstanding cost, thereby preventing the harm created by their current design. Second, Mr. Laitala could also argue that H.O. Sports placed the valve under a Velcro cover near the center of the inner tube because they did not want a valve protruding from the side, and this reason of aesthetics does not outweigh the possible harms created by the design. Furthermore, Mr. Laitala can argue that the valve placement doesn’t provide any benefit to the product but only increases the possibility of injury. By presenting the Black Ice tube design as creating more risk than utility and supplying alternative tube designs, Mr. Laitala can prove H.O. Sports‘ tube has a design defect under the risk utility test.
The court will most likely conclude that the tube does have a design defect under the risk utility test. The available evidence of other inner tubes provides the court with alternative designs that do not affect the essential function of the product. By showing the other inner tube designs, Mr. Laitala would effectively prove the design defect of the H.O. Sports inner tube. In addition, the persuasive argument that the risk is greater than the utility concerning the valve placement on the tube also favors Mr. Laitala’s position. H.O. Sports’ argument against the applicability of the risk utility test is diminished when compared to the adequate evidence displaying the possibility of another effective and affordable inner tube design. The strength of H.O. Sports’ argument, concerning the risk utility test, lies in the exclusive convex design of the Black Ice tube. If H.O. Sports can prove that altering the valve placement would completely alter the product’s unique design and function, they may have a strong case for showing the risk utility test is not met.
Because of the convincing arguments available to Mr. Laitala, the court will probably not grant a summary judgment against his claim. Therefore, we should take this case.
The results of the consumer expectation test are balanced in favor of H.O. Sports because their arguments concerning Matt’s injuries as being expected by the ordinary consumer are persuasive; however, lacerations on the elbows, Mr. Laitala would argue, are not reasonably expected injuries while riding an inner tube. H.O. Sports’ counter argument of the inherently dangerous aspect of the inner tube is strong, but the nature of Matt’s injuries may be so unique, especially considering the Laitalas are experienced inner tubers, that a judge would not find that an ordinary consumer would expect lacerations on their elbows due to riding an inner tube.
The result of the risk utility test is balanced in favor of Mr. Laitala, but H.O. Sports may be able to provide persuasive reasons for Black Ice‘s current design. For instance, the placement of the valve in the center of the inner tube may be essential to retain the convex shape; however, if that factual assertion proves to be false, then Mr. Laitala’s claim for product liability under the risk utility test looks favorable because of the availability of safer alternative designs.
The legal and factual analysis contained in this memo provides us with the necessary information we need to consider taking Mr. Laitala’s case. My recommendation is that we take this case because there is strong probability that it will survive summary judgment.