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To: Mimi Samuel, supervising attorney
From: Jonathan White
Date: November 22, 2009
Re: Rochelle and Marty Winick; Product Liability
Statement of Facts
Ms. Rochelle Winick has contacted our firm seeking assistance in bringing a products liability suit against HO Sports, a manufacturer of recreational water sports equipment. You have asked me to evaluate the strength of her claim with specific regard to the issue of design defect.
On July 16th, 2009, Ms. Winick, her son Marty, and other members of the Winick family were enjoying a short vacation at their cabin in Eastern Washington. The family has owned a boat for 4-5 years, and on the day in question they were using it to enjoy water sports at nearby Lake Antiot. Marty had been riding an HO Sports “Black Ice” inner tube for 45 minutes to an hour when he involuntarily fell off the tube. When the boat came back around to pick him up, Ms. Winick, who was also in the boat at the time, was surprised to find Marty’s arms bleeding. Upon returning to the shore, the family applied bandages and Neosporin to Marty’s injuries.
By the next day, July 17th, an infection had begun to spread around the injuries on Marty’s arms, so Ms. Winick brought him to a doctor in Wenatchee. The doctor told Ms. Winick that Marty’s arm was infected, although she didn’t remember the specific terminology of the diagnosis. The doctor prescribed an antibiotic for Marty and recommended a follow-up visit.
By July 20th, after the family had returned from Eastern Washington, Marty’s condition had not improved. Concerned, Ms. Winick brought him to a second doctor in Seattle, who was surprised that the antibiotic prescribed by the Wenatchee doctor had not yet helped to improve Marty’s condition. Marty then spent the next four days in the hospital recovering from the injury. Subsequently, the doctor suggested to Ms. Winick that Marty might need to give up pitching, since the infection had caused permanent injury and pitching would put an undue strain on his growing bones.
Marty had spent considerable time riding inner tubes in the past and was an experienced user. But until the day of his injury, he had never used a Black Ice tube. The Winick family had only purchased the tube a few months earlier and had only taken it out 3-4 times prior to Marty’s usage. On one of these previous rides, Ms. Winick’s daughter did come away with minor abrasions, but she was wearing a t-shirt and thus did not incur as deep an injury as Marty. Ms. Winick claims that the tube was not altered in any way between the time of purchase and the time of Marty’s injury. She also claims that Marty had been riding the tube in a normal fashion, and hadn’t engaged in any abnormal or rambunctious activity during his ride. Finally, Ms. Winick identified the Velcro cover on the top of the filling stem valve, located directly in the center of the top of the tube, as the most likely cause of Marty’s injury. She noted that the small lip of Velcro covering the valve was supposed to sit flush with the surface of the tube, but that it instead extended slightly beyond that point, creating a pressure point leading to Marty’s scratches.
Issue Statement
Under Washington law relating to product liability, does Ms. Winick have a valid claim for design defect when (1) her son Marty rode on a Black Ice inner tube, manufactured by HO Sports, for 45 minutes to an hour; (2) a stem valve was located directly between the handles of the tube, while the Velcro patch covering the stem valve didn’t fit properly in place; and (3) contact with the Velcro patch appears to have caused several serious scratches on Marty's arm?
Brief Answer
Probably. Washington courts will apply two distinct tests in order to sufficiently determine manufacturer liability in terms of design defect: the “risk/utility” test, and the “consumer expectations” test. Because Ms. Winick can provide evidence of a feasible alternative design for an inner tube similar to the Black Ice tube, and because HO Sports does not have strong arguments for the essential functionality or social value of its centrally-located stem valve, Ms. Winick’s claim should survive summary judgment under the risk/utility test. Additionally, because Ms. Winick can argue that a reasonable consumer would not expect a serious injury such as Marty’s to result from a typical ride on an inner tube, and because Marty’s unique situation creates circumstances from which a jury could infer defective design, Ms. Winick’s claim under the consumer expectations test should also survive summary judgment.
Discussion
Washington has enacted RCW 7.72.030 in order to better protect its citizens against injuries from dangerous and harmful products. Because of the potential threats to consumers arising from defective products, manufacturers of products are held to strict liability. See Soproni v. Polygon Apartment Partners, 137 Wn.2d. 319, 326, 971 P.2d 500 (1999). This statute allows Washington consumers to assert strict liability on the part of a manufacturer of a defective product. The portion of this products liability statute relating to design defect are as follows:
A product manufacturer is subject to liability to a claimant if the claimant's harm was proximately caused by the negligence of the manufacturer in that the product was not reasonably safe as designed or not reasonably safe because adequate warnings or instructions were not provided.
RCW 7.72.030 (1). To prevail on a theory of design defect in a products liability claim, a plaintiff must prove the following elements: (1) a manufacturer’s product (2) not reasonably safe as designed (3) causing harm to the plaintiff. Pagnotta v. Beall Trailers of Or., Inc., 99 Wn. App. 28, 36, 991 P.2d 728 (2000). The first element is not likely to be in dispute, as both parties will agree that the Black Ice tube was manufactured by HO Sports. The third element is likely to be in dispute, but that issue is being addressed in a separate memo. You have asked me to focus on the second element, which is likely to be in dispute; specifically, whether the Black Ice inner tube was “not reasonably safe as designed.” In determining manufacturer liability for defectively designed products, Washington courts use two tests, either of which are sufficient to establish liability: (1) the risk/utility test and (2) the consumer expectations test. Soproni, 137 Wn.2d. at 326-27.
(1): Does Ms. Winick Have a Valid Claim Under the Risk/Utility Test?
Under Washington law, plaintiffs can choose to pursue a products liability claim against a manufacturer under the risk/utility test. The portion of the Washington Products Liability statute pertaining to the risk/utility test is as follows:
A product is not reasonably safe as designed, if, at the time of manufacture, the likelihood that the product would cause the claimant's harm or similar harms, and the seriousness of those harms, outweighed the burden on the manufacturer to design a product that would have prevented those harms and the adverse effect that an alternative design that was practical and feasible would have on the usefulness of the product.
RCW 7.72.030 (a). Courts will consider evidence of feasible alternative designs in determining whether or not a material factual issue exists for a jury to decide. Soproni, 137 Wn.2d. at 329. Courts have held that a plaintiff can satisfy its burden of proof by showing that an alternatively designed product “more safely serves the same function as the challenged product.” Higgins v. Intex Recreation Corp., 123 Wn. App. 821, 829, 99 P.3d 421 (2004).
In a recent Washington case where a manufacturer was held liable under the risk/utility test, the plaintiff was severely injured after being struck by the rider of a snow tube, and he brought a products liability action against the manufacturer/defendant Intex. Id at 826. Both the trial and appellate courts denied defendant Intex’s motion for summary judgment, because the plaintiff was able to bring evidence of a similar tube, also manufactured by Intex, which served the same functions as the tube in question but didn’t pose the same risks. Id. at 827.
In Ms. Winick’s case, she can likely provide proof of an alternative design which would have prevented Marty’s injury while still providing the same functions as the Black Ice tube. A cursory review of HO Sports’ website shows that it manufactures several different types of tubes. Its “Bomber” tube is nearly identical to the Black Ice tube, except for three minor differences: (1) the Black Ice is 6” wider than the Bomber, (2) the Black Ice tube has a convex-shaped bottom design, allowing for greater turning control, which the Bomber does not, and (3) the Black Ice tube has a centrally-located stem valve for easy inflation, while the Bomber only has the traditional valves located on its sides. Ms. Winick can thus argue, and the court will likely agree, that the fact that HO Sports itself makes a safer tube which served nearly the same functions as the Black Ice tube but did not pose the same risks, presents a material issue of fact for a jury to consider.
In response, HO Sports will most likely argue, as did Intex, that making design changes to its Black Ice tube would result in a completely different product. To support its argument, HO would likely cite Thongchoom v. Graco Children’s Products, Inc., 117 Wn. App. 299, 71 P.3d 214 (2003). In Thongchoom, the plaintiff’s infant was injured while using a baby walker manufactured by the defendant. The Washington Court of Appeals refused to apply the risk/utility test, holding that design changes to a baby walker would “completely change the product.” However, Ms. Winick’s case is distinguishable from Thongchoom. Simply removing the stem valve from the Black Ice tube would not significantly affect its essential functionality, whereas changing the mobility function of a baby walker would remove its essential functionality and render it worthless. Furthermore, HO Sports’ own website prominently highlights the convex shape of the Black Ice tube while only casually mentioning the stem valve. It would be difficult, then, for HO to argue that the stem valve was the defining feature of the tube in the same way that mobility was the defining feature of the baby walker in Thongchoom.
HO Sports will also likely argue that some products are inherently unsafe, as did defendant Intex in Higgins. But, in order to use this defense, “the manufacturer of a challenged product would have to demonstrate that an inherently dangerous product is also necessary regardless of the risks involved to the user… the focus is on the product and its relative value to society.” Higgins, 123 Wn. App. at 829. HO Sports would then need to demonstrate that the social value of a centrally-located stem valve, designed to provide easy access for filling, outweighed the potential risk of severe injury from scrapes and abrasions that the stem valve might cause. A court would most likely agree that the question of whether the Black Ice tube was a necessary product, and whether it would justify such potential risks to ordinary consumers, was a material issue of fact for a jury to decide.
Therefore, Ms. Winick has a strong claim of design defect under the risk/utility test. HO Sports manufactures another tube, the Bomber, which serves nearly the same functions as the Black Ice tube, but without the same risk of injury. This alone would present a material issue of fact for a jury to determine. Furthermore, HO Sports would not be able to argue for the essential functionality of the stem valve, since the stem valve alone does not make the Black Ice tube unique. Finally, given the serious nature of Marty’s injury, and its subsequently deleterious long-term effects, it is unlikely that HO Sports could successfully argue that the social value of its centrally-located stem valve outweighed its risks.
(2): Does Ms. Winick Have a Valid Claim Under the Consumer Expectations Test?
Under Washington law, a plaintiff can choose an alternative to the risk/utility test to pursue a products liability claim against a manufacturer. The portion of the Washington products liability statute pertaining to the consumer expectations test is as follows:
In determining whether a product was not reasonably safe under this section, the trier of fact shall consider whether the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer.
RCW 7.72.030 (3). Under the consumer expectations test, the burden is on the plaintiff to “show (that) the product was more dangerous than the ordinary consumer would expect.” Pagnotta, 99 Wn. App. at 36. The plaintiff must also show that the product causing harm was “not reasonably safe.” Thongchoom, 117 Wn. App. at 305. Washington courts have enumerated a number of factors to be considered when determining what a reasonable consumer might expect from a product: (1) its relative cost, (2) the seriousness of potential harm from the claimed defect, (3) the cost and feasibility of eliminating or minimizing the risk, and (4) the nature of the product or the nature of the claimed defect. Higgins, 123 Wn. App. at 830-31.
In cases in which the court held that there was sufficient evidence for the jury to consider the consumer expectations test, plaintiffs were able to produce material evidence indicating that the scope of their injury was beyond that which would be contemplated by the ordinary consumer. In Higgins, the plaintiff was injured as a result of a collision with an inner tube that had “no means for the rider to control it, and turned the rider into a fixed backward position.” Id at 825. The court held that a reasonable consumer might expect the tube to rotate, but that a reasonable consumer might not expect it to remain in fixed backward position, and that this presented a material issue of fact sufficient to preclude summary judgment. In finding for the plaintiff, the trier of fact considered such factors as the relatively low cost of the defective inner tube, as well as the fact that the manufacturer sold other tubes at similar prices but without similar defects.
Like the plaintiff in Higgins, Ms. Winick will argue that the Black Ice tube was more dangerous than the average consumer would expect it to be. She will argue that a reasonable consumer would not expect a serious injury, like Marty’s, to arise from normal usage of the tube. While a reasonable consumer might anticipate minor injuries such as whiplash, bruising, or muscle soreness, typically associated with a product of its nature, from riding the Black Ice tube, a reasonable consumer would not anticipate a serious injury such as Marty’s to occur after only 45 minutes to an hour of use. Additionally, Ms. Winick can argue that the cost of minimizing the danger of injury would be insignificant, as it would not require any major structural changes, but would simply involve re-designing the Velcro valve cover to better enclose the offending stem valve.
Other courts have found that certain types of accidents may themselves indicate design defect under the consumer-expectations test, and that if a reasonable consumer could not foresee such accidents, the product is necessarily defective.
When the jury can reasonably find that the product is unchanged from the condition it was in when sold and the unusual behavior of the product is not due to any conduct on the part of the plaintiff or anyone else who has a connection with the product, logic dictates that it is a distinct possibility that there is some defect in the product.
Pagnotta, 99 Wn.App. at 37. The Pagnotta court, in dealing with an injury to plaintiff who was unable to prove the exact flaw in the manufacturer’s design, held that when a plaintiff lacks the specific evidence to prove how the design was deficient, a jury could still infer defect as long as the product was unchanged from its original condition. Id. at 39. This is a less-developed area within the doctrine of products liability in Washington, relying primarily on non-binding precedent from Oregon. Pursuing this argument would require more evidence than has currently been provided by Ms. Winick; specifically, it would require her to prove that the tube hadn’t been altered between the time of purchase and the incident, and that Marty had used the tube in a reasonable fashion. But should that evidence become available, it would likely be persuasive in court.
In response to Ms. Winick’s arguments, HO Sports will likely claim that riding an inner tube is, in itself, a somewhat risky endeavor and that ordinary consumers should be on notice of potentially negative consequences. HO would likely cite the courts in the Anderson and Thongchoom cases, both of which refused to allow a design defect claim under the consumer expectations test because the products in both cases were associated with “dangers… obvious enough to be contemplated by the ordinary consumer.” Anderson v. Weslo, Inc., 79 Wn. App. 829, 837 906 P.2d 336 (1995); Thongchoom, 117 Wn. App. at 305. Both of these cases involved discretionary recreational products which posed specific and discernable dangers. While the Black Ice tube certainly fits into the same category of products as those in the Anderson and Thongchoom cases, Ms. Winick can rebut HO Sports’ argument by showing that the Black Ice tube does not fit into the same category of dangers.
In Anderson, the plaintiff was injured while jumping on a trampoline, and his injury resulted directly from a risky “double-flip,” which he had performed several times before, and from which he could adequately contemplate the danger. In Thongchoom, the plaintiffs claimed they were unaware of the fact that a baby walker would allow both forward and backward mobility, but the court found this to be a danger obvious to an ordinary consumer. However, Ms. Winick’s case is distinguishable from both of these cases. Unlike the plaintiff in Anderson, Marty could not have been aware of the potential risk of an abrasive stem valve cover, and he had never previously used the Black Ice tube. And, while riding the Black Ice tube did present its own set of risks, Marty, unlike the plaintiff in Thongchoom, could not have contemplated the possibility that he might incur deep scratching and a subsequently serious infection.
Regardless of whether Ms. Winick pursues the optional “necessarily defective” argument as espoused by Pagnotta, she nevertheless has a strong claim of design defect under the consumer expectations test. She can successfully argue that a reasonable consumer wouldn’t anticipate an injury as serious as Marty’s, and that the cost to minimize the risk of such an injury is minimal to HO Sports. She can provide evidence of extensive damage to Marty’s arm and of the long-term effect on his quality of life, adding an emotionally significant aspect to her already-strong legal argument. While HO Sports would likely respond that riding an inner tube poses risks that would be obvious to the ordinary consumer, the unique nature of Marty’s injury, as well as the lack of awareness of the potential danger posed by the stem valve cover, presents several issues of material fact for a jury to consider, and it is likely that they would side with Ms. Winick.
Conclusion
Ms. Winick has a strong claim for design defect under Washington’s products liability law using both the risk/utility test and the consumer expectations test. Both tests present issues of material fact sufficient to survive a motion for summary judgment, and a jury is likely to find for her under at least one test, possibly both.
First, under the risk/utility test, Ms. Winick will be able to provide evidence of a safer, alternatively designed inner tube, made by HO Sports itself, creating an issue of material fact. A jury is unlikely to find that the central location of the stem valve is essential to the primary functionality of the tube, or that the social value of a centrally-located stem valve outweighs the risks it poses to ordinary consumers like Marty.
Second, under the consumer expectations test, Ms. Winick will be able to argue that a reasonable consumer wouldn’t have expected serious injuries such as Marty’s to have resulted from a relatively short inner tube ride, creating another issue of material fact. Furthermore, she can argue that the cost to improve the design of the stem valve cover would be minimal to HO Sports. It is unlikely that a jury would find Marty’s unique injury to have been caused by a danger obvious to the ordinary consumer.
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