The big product-liability news at the Connecticut Supreme Court in 2016 was undoubtedly Izzarelli v. R.J. Reynolds Tobacco, 321 Conn. 172 (2016), an important decision that refined Connecticut’s standards for design-defect product-liability claims. Izzarelli clarified a number of lingering ambiguities arising from the court’s last big design-defect case, the 1997 decision in Potter v. Chicago Pneumatic Tool, 241 Conn. 199. But as important as Izzarelli is in its own right, the decision may turn out to be even more notable for what it portends. In a concurrence, two justices in Izzarelli called for a fundamental reworking of the standards governing Connecticut design-defect cases. And a new case looming on the court’s docket—Bifolck v. Philip Morris—directly presents the question whether to adopt the Izzarelli concurrence’s approach.
The standard for determining when a product’s design renders it unreasonably dangerousness has long been one of the most contentious issues in all of product-liability law. Two competing approaches predominate. The first, adopted by the Restatement (Second) of Torts, is a consumer-expectation test that asks whether the product was “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Section 402A. A second approach, endorsed by the Restatement (Third) of Torts, calls for a weighing of costs and benefits to determine whether omission of a feasible “alternative design … renders [the] product not reasonably safe.” Section 2, cmt. f. Under the latter approach, risk-utility balancing, rather than consumer expectation, is the key.
