In certified question arising from wrongful death action brought in Federal Court by survivors of former smoker, Philip Morris urged the Connecticut Supreme Court to adopt the Third Restatement, which “imposes two requirements that are not mandated under our [Second Restatement] § 402A tests: (1) proof that the harm was foreseeable; and (2) proof that a reasonable alternative design existed that would have reduced or avoided the danger….

“Section 402A is a true strict liability standard. A product seller is ‘subject to liability to the user or consumer even though he has exercised all possible care in the preparation and sale of the product.’ … Foreseeability is only relevant to a defense that the product was not put to a foreseeable use….  Although the availability of an alternative design could be relevant under either of our tests under §402A, neither requires such proof. Indeed, under our primary modified consumer expectation test, a plaintiff may establish liability solely by reference to the product sold, upon proof that its risks outweigh its utility. It bears emphasizing that this risk-utility balancing does not limit liability to products that are of excessively low utility and exceedingly high risk, as does the ‘manifestly’ unreasonable standard in the Restatement (Third).”

The Court rejected this approach.

“An argument that our standard is unworkable because it lacks an ‘objective’ basis for decision-making was implicitly rejected in Potter, and is both circular and contradicted by experience. The presumption on which this argument rests is that failing to require proof of a reasonable alternative design in a risk-utility test deprives the fact finder of an objective basis for decision-making because it lacks an alternative against which to compare the marketed product. The flaw in this argument is that it assumes that a product cannot be unsafe unless it can be made safer. If the fact finder’s task is to determine whether the defendant could have made a safer product, it necessarily follows that the absence of an alternative design makes this task impossible. If, however, the fact finder’s task is to assess whether the product is unreasonably dangerous because its risks exceed its utility, no comparison to an alternative is necessary. The fact that jurors commonly engage in such a balancing test whenever they are called upon to assess reasonableness, such as in a claim of negligence, evidences that such weighing is workable….  In addition to the lack of evidence that our Restatement (Second) standard is unworkable, we are not persuaded that the Restatement (Third) fully addresses all of the concerns that previously led this court to reject the draft Restatement (Third). The court in Potter did not address whether it would be appropriate to require plaintiffs to prove that the risk of harm was foreseeable. Nonetheless, such a requirement would be manifestly inconsistent with the court’s concern in Potter about the burdens of expert testimony; and its unequivocal determination that policy considerations favored adherence to strict liability….  With respect to the reasonable alternative design requirement, the court in Potter expressed a concern that such a rule would preclude valid claims for products for which there is no alternative design….

“Although the defendant’s arguments have not persuaded us that we should adopt the Restatement (Third) at this time, we have reexamined our standards in light of the concerns expressed by both parties to consider whether we could make refinements to our current strict liability standard to provide greater clarity. Having undertaken that inquiry, we make the following clarifications.

“First, we agree that the labels of ordinary consumer expectation test and modified consumer expectation test are at best unhelpful and at worst misleading. To distinguish the tests in a manner more reflective of their application, we will call them the consumer expectation test and the risk-utility test.

“Second, although our risk-utility test permits a plaintiff to elect whether to proffer evidence of a reasonable alternative design, it would be helpful to require the plaintiff to allege, and thereby put the defendant on notice, whether the product is claimed to be unreasonably dangerous because (a) a reasonable alternative design could have reduced or avoided the danger, or (b) the design of the product marketed is manifestly unreasonable in that the risk of harm from the product so clearly exceeds its utility that a reasonable, informed consumer would not purchase the product, or (c) both.  Under either theory, the jury weighs the product’s risks and utility. Only under (a), however, would the jury consider the availability of an alternative design and compare that design’s risks and utility to that of the product sold. Under (b), the jury would focus exclusively on the risks and utility of the product sold. We underscore that (b) is not limited to products of marginal utility; it applies to any product in which its risks clearly exceed its utility. The greater the utility, the greater the risk must be to render the product unreasonably dangerous.

“Third, we recognize that, in most cases, plaintiffs will elect to proceed on the theory that the product is unreasonably dangerous because it lacked some feature that would have reduced or avoided the injury. This narrative is the one that is likely to be most persuasive to a jury, and not many products will be more dangerous than useful or fail to meet minimum safety expectations. Therefore, it would be helpful to clarify the plaintiff’s burden of proof on this theory. In order to state a prima facie case that will permit the case to be submitted to the jury, the plaintiff must simply prove that the alternative design was feasible (technically and economically) and that the alternative would have reduced or avoided the harm. Although other factors may be relevant, a plaintiff’s failure to present proof on other factors will not preclude the case from being submitted to the jury. We underscore that, as to economic feasibility, the plaintiff need not prove the precise cost of the alternative design. The plaintiff only need proffer sufficient evidence from which a jury could reasonably conclude that any increase in cost would not materially affect the desirability of the product in light of the benefit derived.

“Fourth, we conclude that a defect may be established under our consumer expectation test by proof of the product’s noncompliance with safety statutes or regulations or a product seller’s express representations. Such noncompliance would establish the product’s failure to meet consumers’ legitimate, commonly accepted, minimum safety expectations. Moreover, the utility of the product would not excuse such noncompliance.”

Bifolk v. Philip Morris, No.19310, 2016 WL 7509118 (Conn. Dec. 29, 2016).