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“Defect” in product liability law has two roots: from breach of warranty actions under contract law and from negligence under tort law. In early products liability cases, courts relied upon an implied warranty to permit recovery for personal injuries arising from defective goods. However, that cause of action required privity between the seller and the injured consumer, which could not always be satisfied. This led to the development of the strict liability doctrine in tort law, where privity was not required. Strict liability in tort remedies no longer needs to rely on a contractually based breach of implied warranty to compensate injured plaintiffs.

Under strict liability in tort, a design defect is actionable if the product is not reasonably safe. This requires an assessment by the jury of whether or not the utility of the product outweighs the risk inherent in marketing the product. This risk/utility balancing test is a negligence-inspired approach as it invites the parties to adduce proof about the manufacturer’s choices “and ultimately requires the fact finder to make a judgment about the manufacturer’s judgment.” See Denny v. Ford Motor Company, 87 NYS2d 248, 255, 639 NYS2d 250, 258 (1995).

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