SUPREME COURT

OF THE

STATE OF CONNECTICUT
S.C. 19310
VINCENT J. BIFOLCK, INDIVIDUALLY AND AS EXECUTOR
OF THE ESTATE OF JEANETTE D. BIFOLCK
PLAINTIFF-APPELLANT
v.
PHILIP MORRIS, INC.
DEFENDANT-APPELLEE

BRIEF OF AMICUS CURIAE

CQNNECTICUT BUSINESS &INDUSTRY ASSOCIATION
JOINED BY.
NEW HAVEN MANUFACTURERS ASSOCIATION
AND
INSURANCE ASSOCIATION OF CONNECTICUT

ATTORNEYS FOR AMICUS CURIAE,

CONNECTICUT BUSINESS &INDUSTRY ASSOCIATION:
JENNIFER M. DELMONICO, ESQ.
PROLOY K. DAS, ESQ.
ERIC B. MILLER, ESQ.
TERENCE J. BRUNAU, ESQ.
MURTHA CULLINA LLP
CITYPLACE I - 185 ASYLUM STREET
HARTFORD, CT 06103-3101
TEL.(860) 240-6000
FAX (860) 240-6150
JURIS NO. 040248
pdas@murthalaw.com

TABLE OF CONTENTS
STATEMENT OF THE AMICUS ISSUE................................................................................ i
TABLE OF AUTHORITIES .................................................................................................. ii
STATEMENT OF INTEREST OF THE AMICUS CURIAE.................................................. vi
NATURE OF PROCEEDINGS ............................................................................................. 1
STATEMENT OF FACTS..................................................................................................... 3
ARGUMENT......................................................................................................................... 5
I.

FOR PRODUCT LIABILITY ACTIONS PREMISED ON DESIGN DEFECTS,

THIS COURT SHOULD FOLLOW THE IZZARELLI CONCURRENCE AND
ADOPT 1, 2(b), AND 4 OF THE RESTATEMENT (THIRD)................................. 5
A.

The Evolution of Connecticut Law Supports Using A Risk Utility

Analysis For Design Defect Cases .............................................................. 5

B.

Connecticut Should Adopt The Restatement (Third) And Its

"Reasonable Alternative Design" Requirement......................................... 8
1.

The jingle risk-utility standard in the Restatement (Third) is

preferable to Connecticut's current two-test system ...................... 8

2.

The reasonable alternative design requirement assists the

factfinder and improves the quality of results by providing an
objective standard by which to evaluate design defect claims.... 11

3.

The risk-utility test and its reasonable alternative design

requirement also are beneficial because they encourage
responsible innovation and development...................................... 12

C.

The Court's Concern's In Potter Have Been Addressed by

Restatement(Third).................................................................................... 13

D.

Adopting the Restatement (Third) Will Make Connecticut Law

Consistent With Other Jurisdictions, Resulting in Better
Predictability for Connecticut Courts, Practitioners, and Parties........... 16

CONCLUSION ................................................................................................................... 20

STATEMENT OF THE AMICUS ISSUE

FOR PRODUCT LIABILITY ACTIONS PREMISED ON DESIGN DEFECTS,
SHOULD THIS COURT ABANDON THE ORDINARY CONSUMER EXPECTATION
TEST/MODIFIED CONSUMER EXPECTATION TEST AND ADOPT 1, 2(b),
AND 4 OF THE RESTATEMENT (THIRD) OF TORTS?

TABLE OF AUTHORITIES
Cases
Armentrout v. FMC Corp., 842 P.2d 175 (Colo.1992)......................................................... 18
Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978) .............................................. 18, 19
Banks v. ICI Americas, Inc., 450 S.E.2d 671 (Ga. 1994).......................................... 9, 17, 19
Branham v. Ford Motor Co., 701 S.E.2d 5 (S.C. 2010)................................................ 18, 19
Brooks v. Beech Aircraft Corp., 902 P.2d 54 (N.W. 1995).................................................. 19
Cavanaugh v. Skil Corp., 751 A.2d 518 (N.J. 2000)........................................................... 19
Church v. Wesson, 385 S.E.2d 393(W.V.1989) ................................................................ 18
Comacho v. Hondo Motor Co., 741 P.2d 1240 (Colo. 1987).............................................. 17
Dart v. Weibe Mfq., 709 P.2d 876 (Ariz. 1985)................................................................... 17
Delaney v. Deere and Co., 999 P.2d 930 (Kan. 2000)....................................................... 19
Denny v. Ford Motor Co., 87 N.Y.2d 248 (N.Y. 1995).................................................. 18, 19
DeWitt v. Evereadv Battery Co., 550 S.E.2d 511 (N.C. App. 2001) ................................... 18
Diluzio-Gulino v. Daimler Chrysler Corp., 897 A.2d 438 (N.J. Super App. Div.
2006)............................................................................................................................... 18
Endresen v. Scheels Hardware &Sports Shop, Inc., 560 N.W.2d 225
(N.D.1997)...................................................................................................................... 18
First Premier Bank v. Kolcraft Enters., Inc., 686 N.W.2d 430 (S.D. 2004).......................... 18
Forster v. R.J. Reynolds Tobacco Co., 437 N.W.2d 655 (Minn. 1989)............................... 18
Freeman v. Hoffman-La Roche, Inc., 618 N.W.2d 827 (Neb. 2000)................................... 19
Garthwait v. Burgio, 153 Conn. 284 (1965)...................................................................... 1, 5
General Motors Corp. v. Farnsworth, 965 P.2d 1209 (Alaska 1998).................................. 17
General Motors Corp. v. Jernigan, 883 So.2d 646 (Ala. 2003)........................................... 18
Giglio v. Connecticut Light &Power Co., 180 Conn. 230(1980)..........................................6
Green v. Smith &Nephew AHP, Inc., 245 Wis. 2d 772 (2001)........................................... 19

Gregory v. Cincinnati Inc., 538 N.W.2d 325 (Mich. 1995)............................................. 18, 19

Guigqey v. Bombardier, 615 A.2d 1169 (Me. 1992)........................................................... 17
Hernandez v. Tokai Corp., 2 S.W.3d 251 (Tex. 1999)........................................................ 18
In re Estate of Duebendorfer, 721 N.W.2d 438 (S.D. 2006)............................................... 18
Izzarelli v. R.J. Reynolds Tobacco Co., 321 Conn. 172 (2016)...................................passim
Izzarelli v. R.J. Reynolds Tobacco Co., 731 F.3d 164 (2d Cir. 2013)................................... 1
Izzarelli v. R.J. Reynolds Tobacco Co., 767 F. Supp. 2d 324 (D. Conn. 2010).................... 1
Jenkins v. Int'I Paper Co., 945 So.2d 144 (La.Ct.App.2006) .............................................. 19
Johnson v. Black &Decker U.S., Inc., 701 So. 2d 1360 (La. App. 1997)........................... 17
Kallio v. Ford Motor Co., 407 N.W.2d 92 (Minn.1987)........................................................ 18
Lee v. Martin, 45 S.W.3d 860 (Ark. 2001) .......................................................................... 17
Mazda Motor Corp. v. Lindahl, 706 A.2d 526 (Del. 1998)................................................... 17
McCathern v. Toyota Motor Corp., 23 P.3d 320 (Or. 2001)................................................ 18
Mikolajczyk v. Ford Motor Co., 901 N.E.2d 329 (III. 2008).................................................. 17
Miller v. Todd, 551 N.E.2d 1139 (Ind. 1990)....................................................................... 17
Morningstar v. Black &Decker Mfg. Co., 253 S.E.2d 666 (W.Va. 1979)............................ 19
Nissan Motor Co. v. Nave, 740 A.2d 102(Md. App. 1990................................................. 17
Perkins v. Wilkinson Sword, Inc., 700 N.E.2d 1247 (Ohio 1998)........................................ 18
Potter v. Chicago Pneumatic Tool Co, 241 Conn. 199 (1997).....................................passim
Prentis v. Yale Mfq_Co., 365 N.W.2d 176 (Mich. 1984)..................................................... 18
Radiation Tech., Inc. v. Ware Constr. Co., 445 So. 2d 329 (Fla. 1983).............................. 17
Ray ex rel. Holman v. BIC Corp., 925 S.W.2d 527 (Tenn.1996) ........................................ 18
Rix v. General Motors, 723 P.2d 195 (Mont. 1986)...................................................... 18, 19
Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549 (1967)........................... 5
Smith v. Bryco Arms, 33 P.3d 638 (N.M. App. 2001).................................................... 18, 19

Soproni v. Polygon Apartment Partners, 971 P.2d 500(Wash. 1999)................................ 18

Soule v. General Motors Corp., 882 P.2d 298 (Cal. 1994)................................................. 17
St. Germain v. Husqvarna Corp., 544 A.2d 1283(Me.1988).............................................. 18
Tabieros v. Clark Equip. Co., 944 P.2d 1279(Haw. 1997)................................................. 17
Thibault v. Sears, Roebuck & Co., 395 A.2d 843(N.H. 1978)............................................ 18
Townsend v. General Motors Corp., 642 So. 2d 411 (Ala. 1994)....................................... 17
Toyota Motor Corp. v. Gregory, 136 S.W.3d 35 (Ky. 2004).......................................... 17, 18
Uloth v. City Tank Corp., 384 N.E.2d 1188 (Mass. 1978)................................................... 17
Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328 (Tex.1998)................................. 19
Wachtel v. Rosol, 159 Conn. 496 (1970).............................................................................. 5
Wankier v. Crown Equip. Corp., 353 F.3d 862 (10th Cir. 2003) ......................................... 18
Warner Fruehauf Trailer Co. v. Boston, 654 A.2d 1272 (D.C. 1995).................................. 17
Waterbury Petroleum Products, Inc. v. Canaan Oil &Fuel Co., 193 Conn. 208
(1984).......................:....................................................................................................... 2
Williams v. Bennett, 921 So. 2d 1269 (Miss. 2006)...................................................... 18, 19
Wright v. Brooke Group, Ltd., 652 N.W.2d 159, 169 (Iowa 2002) ................................ 17, 18
Statutes
Conn. Gen. Stat. 52-240b .................................................................................................. 2
Conn. Gen. Stat. 52-572m ........................................................................................... 1, 10
Ind. Cod Ann. 34-20-2-2 .................................................................................................. 17
2006 S.D. Sess. Laws Ch. 341 ........................................................................................... 18
Other Authorities
J. A. Henderson, Jr. &Aaron D. Twerski, "Intuition and Technology in Product
Design Litigation: An Essay on Proximate Causation," 88 Geo. L.J. 659,
661 (2000) ...................................................................................................................... 11
D. Owen & M. Davis, Products Liability (4th Ed. 2014) ....................................................... 11

V. Schwartz, "The Restatement (Third) of Torts: Product Liability The

American Law Institute's Process of Democracy and Deliberation," 26
Hofstra L. Rev. 743(1998). ............................................................................................. 5
Restatement(Second) of Torts ...................................................................................passim
Restatement (Third) of Torts .......................................................................................passim
J. Wade,"On the Nature of Strict Tort Liability for Products," 44 Miss.L.J. 825
(1973). ............................................................................................................................ 6
U.S. Department of Commerce Model Uniform Product Liability Act, 44 Fed.
Reg. 62714 (Oct. 31, 1979) .............................................................................................. 9
Rules
Practice Book 67-7 ...........................................................................................................vii

STATEMENT OF INTEREST OF THE AMICUS CURIAE

The Connecticut Business &Industry Association ("CBIA") is Connecticut's largest
statewide business organization with approximately 10,000 member companies. CBIA
offers its members a wide array of resources and services related to the legal, economic,
and social aspects of running a business, and it presents the views of its members and the
business community in general on public policy and legal issues to regulatory, legislative,
and judicial authorities.
CBIA has a compelling interest and stake in a decision by this Court on the question
at issue because it will affect businesses that choose to manufacture, distribute, and sell
products in Connecticut, and could affect Connecticut's economic competitiveness going
forward. Manufacturing has been central to the growth of Connecticut's economy. For over
200 years, Connecticut products have supplied, defined, and defended the nation.
Connecticut products are in demand around the globe and our manufacturers continue to
lead the way in advanced technology and innovative engineering.
CBIA participates in this appeal in an amicus curiae capacity and advocates for the
adoption of the concurring opinion in Izzarelli v. R.J. Reynolds Tobacco Co., 321 Conn. 172
(2016). Doing so, and thereby adopting Sections 1, 2(b), and 4 of the Restatement (Third)
of Torts, would clarify Connecticut law and lead to greater efficiency, consistency, and
predictability in product liability cases. It would also make Connecticut actions arising from
design defects subject to the same standards as in the vast majority of other states, and
ensure that Connecticut businesses are not placed at a competitive disadvantage as they
compete in the global marketplace.
~ Pursuant to Practice Book 67-7, CBIA represents that this brief was written entirely by
its counsel. No party to the appeal wrote the brief in whole or in part, nor contributed any
costs for the preparation of this brief. New Haven Manufacturers Association and Insurance
Association of Connecticut join in this brief.
vi

The following procedural history is relevant to CBIA's amicus position:

In 1999, Barbara Izzarelli brought a lawsuit under the Connecticut Products Liability
Act, Connecticut General Statutes 52-572m et seq. ("CPLA"), claiming that cigarettes
manufactured by R.J. Reynolds Tobacco Company caused cancer in her larynx. On May
26, 2010, a jury returned a verdict in Izzarelli's favor. Izzarelli v. R.J. Reynolds Tobacco
Co., 767 F. Supp.2d 324, 325 (D. Conn. 2010)(Underhill, J.).
On March 18, 2013, the United States Court of Appeals for the Second Circuit heard
R.J. Reynolds' appeal from that judgment, in which R.J. Reynolds argued that Izzarelii's
claims were foreclosed as a matter of law because the Restatement (Second) of Torts
Section 402A (1965), which was adopted by this Court in Garthwait v. Bur io, 153 Conn.
284 (1965), precluded strict products liability suits against sellers, distributors, and
manufacturers of "good tobacco." On September 10, 2013, the Second Circuit certified the
following question to this Court:
Does Comment i to section 402A of the Restatement (Second) of Torts
preclude a suit premised on strict products liability against a cigarette
manufacturer based on evidence that the defendant purposefully
manufactured cigarettes to increase daily consumption without regard to
the resultant increase in exposure to carcinogens, but in the absence of
evidence of any adulteration or contamination?
Izzarelli v. R.J. Reynolds Tobacco Co., 731 F.3d 164, 169 (2d Cir. 2013).
After the Second Circuit's certification in Izzarelli, the plaintiff in the instant case filed
a pre-trial motion seeking to certify three questions related to design defect claims under
the Restatement (Second) of Torts. On February 14, 2014, the district court (Underhill, J.)
granted the plaintiff's motion and certified the following two questions to this Court:
(1) Does section 402A of the Restatement (Second) of Torts (and
Comment i to that provision) apply to a product liability claim for
negligence under the CPLA?; [and] (2) Does Connecticut's common law
1

rule of punitive damages, as articulated in Waterbury Petroleum Products,

Inc. v. Canaan Oil &Fuel Co., 193 Conn. 208 (1984), apply to an award of
statutory punitive damages pursuant to Conn. Gen. Stat. Sec. 52-240b,
the punitive damages provision of the CPLA?
Bifolck v. Philip Morris, Inc., 3:06-CV-1768-SRU (Feb. 14, 2014). The district court further
noted that this Court "may, of course, reformulate these questions as it sees fit." Id.
On April 22, 2015, this Court heard oral argument in both Izzarelli and Bifolck. On
April 25, 2016, this Court issued an advance copy of its decision in Izzarelli v. R.J.
Reynolds Tobacco Co., 321 Conn. 172 (2016).2 In that decision, this Court unanimously
answered the certified question in the negative. The majority opinion clarified that the
"modified consumer expectation test," which was created by this Court in Potter v. Chicago
Pneumatic Tool Co, 241 Conn. 199 (1997) and modifies the consumer expectations test
from the Restatement (Second), is the "primary strict product liability test" in Connecticut.
Izzarelli, 321 Conn. at _177. A concurring opinion was authored by Justice Zarella and
joined by Justice Espinosa and stated that the standards adopted in Potter should be
reconsidered and that the Restatement (Third) should be adopted as the test for evaluating
design defect claims. The Izzarelli majority declined the Izzarelli concurrence's invitation on
the basis that "neither party [in Izzarelli] sought to have the jury charged under the
Restatement (Third) test, which would have required the jury to make a finding that was not
required under either of our current tests, namely, that there was a feasible safer
alternative." Izzarelli, 321 Conn. at 192 n.11.
On April 22, 2016, the same day as the advance release of the Izzarelli decision, this
Court issued a notice in Bifolck, the instant pre-trial appeal, in which it invited several
organizations to submit amicus briefs on the following question:
For product liability actions premised on design defects, should this court
abandon the ordinary consumer expectation tesUmodified consumer
z The official publication date of the Izzarelli opinion is May 3, 2016.
2

expectation test; see Izzarelli v. R.J. Reynolds Tobacco Co. (SC 19232)
(majority opinion); and adopt 1, 2(b), and 4 of the Restatement (Third) of
Torts, with or without the associated commentary? ... (concurring opinion).
CBIA accepts this Court's invitation and submits this amicus brief in favor of adopting the
analysis set forth in the Izzarelli concurrence for design defect cases.
~'~~_~~~I~ill~~~l~y_~~i+y
The following facts are relevant to CBIA's amicus position:
Connecticut manufacturing is a powerful economic force, employing 162,000
workers, paying $280 million in taxes, and adding $28 billion to the state's GDP annually.3
From power tools to roof racks, jet engines to fire alarms, products made in Connecticut are
sold throughout the United States and around the world.
The National Association of Manufacturers (NAM) reports that there are over 4,000
manufacturing

businesses in

Connecticut.4 Those

manufacturing firms contribute

significantly to the Connecticut tax base providing $280 million in taxes.5 The
manufacturing industry also employs over 160,000 people in Connecticut.6 Manufacturing

3 See CBIA, Manufacturing's Economic Power in Connecticut, available

http://www.cbia.com/resources/manufacturing/manufacturing-facts/connecticutmanufacturings-economic-power/ (last visited June 7, 2016).

at

4 See NAM, CT Data, March 2016,available at http://www.nam.orq/Data-and-Reports/StateManufacturing-Data/ (last visited June 7, 2016). The Connecticut data shows that there
were 4,152 manufacturing business in 2012 and 4,068 in 2013.
5 See Connecticut Department of Revenue Services FY 2014-2015 Report is available at
htt~://www.ct.gov/drs/lib/drs/research/annualreport/drs fy15 annual report.pdf (last visited
June 7, 2016).
6 See NAM, CT Data, March 2016, available at http://www.nam.arg/Data-andReports/State-Manufacturing-Data/ (last visited June 7, 2016). NAM collected this data
from the U.S. Bureau of Economic Analysis and the U.S. Census Bureau and reported
manufacturing employment numbers of 164,200 in 2014 and 160,700 in 2015 in
Connecticut.

accounts for 9.5% of the Connectiuct workforce. This accounts for approximately $13.6
billion in total manufacturing wages in this state.$ Connecticut manufacturers have added
$27.8 billion to Connecticut's gross state product.g in fact, manufacuring accounts for
10.5% of Connecticut's gross state product.10 In addition, Connecticut manufacturers
helped drive Connecticut's economy with $14.63 billion in manufactured goods exported
last year.'~
In short, manufacturing is the lifeblood of the Connecticut economy. Connecticut law
should not place companies that choose to locate in this state at a competitive
disadvantage compared to similar businesses in other states. By adopting the Restatement
(Third) in design defect cases, Connecticut's test for determining manufacturers' liability for
the design of products will be clear and will be in line with the test that is used by a majority
of states. This will allow Connecticut manufacturers to understand the standards by which
their products will be evaluated and to innovate in that context, without being subject to a
greater risk of liability than in other states.
See NAM, Manufacturing Employment by State, March 2016, available
http://www.nam.org/Data-and-Reports/State-Manufacturing-Data/State-ManufacturinqData/Manufacturing-Employment-by-State-March-2016/ (last visited June 7, 2016).

at

$ See Office of the Governor, FY 2016-17 Biennium Economic Report, available at

http://www.ct.gov/opm/lib/opm/budget/2016 2017 biennial bud ety /budget/economicreport
ofthegovernor.pdf (last visited June 7, 2016).
9 See Office of the Governor, FY 2016-17 Biennium Economic Report, available at
http://www.ct.gov/opm/lib/opm/budget/2016 2017 biennial budget/budget/economicreport
ofthegovernor.pdf (last visited June 7, 2016).
'o See NAM, Manufacturing's Share of Gross State Product, available at
http://www.nam.orq/Data-and-Reports/State-Manufacturing-Data/State-ManufacturinqData/Manufacturing-Share-of-Gross-State-Product-March-2016/ (last visited June 7, 2016).
11

See NAM, Connecticut Manufacturing Facts, available at http://www.nam.orq/Data-andReports/State-Manufacturing-Data/State-Manufacturing-Data/March-2016/ManufacturinqFacts--Connecticut/ (last visited June 7, 2016).

/alt~1~J~il~l~~~
I.

FOR PRODUCT LIABILITY ACTIONS PREMISED ON DESIGN DEFECTS, THIS

COURT SHOULD FOLLOW THE IZZARELLI CONCURRENCE AND ADOPT 1,
2(b), AND 4 OF THE RESTATEMENT (THIRD).
A.

The Evolution of Connecticut Law Supports Using A Risk Utility

Analysis For Design Defect Cases.

In 1965, the American Law Institute issued the Restatement (Second) of Torts, with
section 402A addressing product liability claims. See V. Schwartz, "The Restatement
(Third) of Torts: Product Liability The American Law Institute's Process of Democracy and
Deliberation," 26 Hofstra L. Rev. 743 (1998). The key language from this section created a
strict liability standard for manufacturers of products with defects that were "unreasonably
dangerous:"
"One who sells any product in a defective condition unreasonably
dangerous to the user or consumer or to his property is subject to liability
for physical harm thereby caused to the ultimate user or consumer, or to
his property.... [This rule] applies although ...the seller has exercised
a!I possible care in the preparation and sale of his product."
(Emphasis added.) Id. at 746.
The same year that the Restatement (Second) was released, Connecticut issued its
decision in Garthwait v. Burgio, 153 Conn. 284 (1965), in which it became one of the first
states to adopt the principles contained in section 402A. In subsequent cases, the Court
reaffirmed its adherence to the Restatement (Second). See Wachtel v. Rosol, 159 Conn.
496 (1970); Rossiqnol v. Danbury School of Aeronautics, Inc., 154 Conn. 549 (1967). The
Court adopted the elements of a product liability claim as set forth in section 402A.12 The

12 Under that standard, to prevail in a product liability action the plaintiff must prove: "(1) the
defendant was engaged in the business of selling the product; (2) the product was in a
defective condition unreasonably dangerous to the consumer or user; (3) the defect caused
the injury for which compensation was sought; (4) the defect existed at the time of the sale;
and (5) the product was expected to and did reach the consumer without substantial
~7

Court also adopted the "consumer expectation test" as the standard for determining
whether a product is "unreasonably dangerous." This test is set forth in comment (i) to
section 402A: to be unreasonably dangerous, "the article sold must be 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." 2
Restatement (Second), supra, 402A, comment (i). See Potter v. Chicago Pneumatic Tool
Co., 241 Conn. 199, 214-15 (1997).
As product liability claims based on design defects and failure to warn developed,
courts struggled to apply the concepts of Section 402A, including the consumer expectation
test, in adjudicating those claims. See Restatement (Third) 1 cmt. a ("it soon became
evident that 402A, created to deal with liability for manufacturing defects, could not
appropriately be applied to cases of design defects or defects based on inadequate
instructions or warnings."). Some courts began using risk utility tests to evaluate product
design by considering several nonexclusive factors, including "the manufacturer's ability to
eliminate the unsafe character of the product without impairing its usefulness or making it
too expensive to maintain its utility." Potter, 241 Conn. at 213 (citing J. Wade, "On the
Nature of Strict Tort Liability for Products," 44 Miss.L.J. 825, 837-38 (1973)). Yet,
Connecticut continued to adhere to the "consumer expectation" standard as set forth in the
Restatement (Second). See Potter, 241 Conn. at 215-16.
In 1995, a tentative draft of the Restatement (Third) of Torts contained a requirement
that, to prove a design defect a plaintiff must prove in his prima facie case the availability of

change in condition." Giglio v. Connecticut Light &Power Co., 180 Conn. 230, 233-34
(1980).
6

a "reasonable alternative design." Based on this draft, in 1997, the defendants in Potter,
241 Conn. at 215-1'6, argued that this Court should "abandon the consumer expectation
standard and adopt the requirement that the plaintiff must prove the existence of a
reasonable alternative design in order to prevail on a design defect claim." In considering
the defendants' argument, the Court in Potter took note of the Draft Restatement (Third)
alternative reasonable design requirement:
Specifically, 2(b) of the Draft Restatement (Third) provides: "[A] product is
defective in design when the foreseeable risks of harm posed by the product
could have been reduced or avoided by the adoption of a reasonable
alternative design by the seller or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of the alternative design
renders the product not reasonably safe." The reporters to the Draft
Restatement (Third) state that "[v]ery substantial authority supports the
proposition that [the] plaintiff must establish a reasonable alternative design in
order for a product to be adjudged defective in design." Draft Restatement
(Third), supra, 2, reporters' note to comment (c), p. 50. We point out that
this provision of the Draft Restatement (Third) has been a source of
substantial controversy among commentators.
Potter. 241 Conn. 199 at 215-16.
The Court in Potter ultimately "decline[d] to adopt the requirement that a plaintiff
must prove a feasible alternative design as a sine qua non to establishing a prima facie
case of design defect." Id. at 219. In doing so, the Court reaffirmed its adherence to the
ordinary consumer expectation test, but also "recognize[d] that there may be instances
involving complex product designs in which an ordinary consumer may not be able to form
expectations of safety." Id. Thus, the Court adopted a "modified consumer expectation test"
for such circumstances, in which "a consumer's expectations may be viewed in light of
various factors that balance the utility of the product's design with the magnitude of its
risks." Id. at 220. The Court allowed the trial courts "to determine whether an instruction
based on the ordinary consumer expectation test or the modified consumer expectation
7

test, or both, is appropriate in light of the evidence presented." Id. at 223.

B.

Connecticut Should Adopt The Restatement(Third) And Its "Reasonable

Alternative Design" Requirement.

It has been twenty years since Potter was decided, and product liability law has
continued to evolve since that time. It is now widely accepted that design defect claims
should be evaluated under arisk-utility test, with consideration of evidence of a reasonable
alternative design

unless a specific exception applies. The Restatement (Third)

incorporates both concepts. Connecticut should join the majority of jurisdictions and adopt
the approach set forth in the Restatement (Third) for design defect claims by employing a
single risk-utility balancing standard based on proof of a reasonable alternative design.
1.

The single risk-utility standard in the Restatement (Third) is

preferable to Connecticut's current two-test system.

The Restatement (Third) was drafted in response to the difficulty courts were having
addressing claims for design defect and failure to warn using the standards in section
402A, which was intended to apply to manufacturing defects. The former two categories
are premised on a different concept of responsibility than the latter; manufacturing defects
are assessed by comparing the product to the manufacturer's own standards, whereas
design defects and warnings require an analysis of many factors. The standards in the
Restatement (Third) take into account the subtleties and factual nuances of each product at
issue in each case.
Section 2 of the Restatement (Third) of Torts sets forth distinct principles of liability
for the three major categories of product defect: manufacturing defects, design defects, and
inadequate warnings. With respect to design defects, Section 2(b) provides:
A product ... is defective in design when the foreseeable risks of harm posed
by the product could have been reduced or avoided by the adoption of a
reasonable alternative design by the seller or other distributor, or a
E:3

predecessor in the commercial chain of distribution, and the omission of the

alternative design renders the product not reasonably safe ... .
(Emphasis added.)13
To assess whether a product design is "not reasonably safe," the Restatement
(Third) employs areasonableness-based, risk-utility balancing test. See id. cmt. (d). The
risk-utility test is premised on the notion that "[p]roducts are not generically defective merely
because they are dangerous," as well as "the common sense notion that liability for harm
caused by product designs should attach only when harm is reasonably preventable."
Restatement (Third) of Torts, 2, cmt. (f). Balancing these interests also recognizes the
reality that the goal of product design is optimal, rather than perfect or absolute, safety:
The emphasis is on creating incentives for manufacturers to achieve optimal
levels of safety in designing and marketing products. Society does not benefit
from products that are excessively safe for example, automobiles designed
with maximum speeds of 20 miles per hour any more than it benefits from
products that are too risky. Society benefits most when the right, or optimal,
amount of product safety is achieved .
Restatement (Third) of Torts, 2, cmt. (a). The risk-utility test "incorporates the concept of
reasonableness, i.e., whether the manufacturer acted reasonably in choosing a particular
product design, given the probability and seriousness of the risk posed by the design, the
usefulness of the product in that condition, and the burden on the manufacturer to take the
necessary steps to eliminate the risk." Banks v. ICI Americas, Inc., 450 S.E.2d 671, 674
(Ga. 1994).
Additionally, the risk-utility test of the Restatement (Third) provides a single standard
by which to evaluate alleged design defects. Adopting this single standard in Connecticut
~3 Section 2 follows the approach of the U.S. Department of Commerce Model Uniform
Product Liability Act, 44 Fed. Reg. 62714 (Oct. 31, 1979), which was developed in
response to courts' struggle to define standards of responsibility for, inter alia, design
defects under Section 402A.

in lieu of the current two-test system would clarify Connecticut law. It would eliminate the
confusion that now exists about "whether an instruction based on the ordinary consumer
expectation test or the modified consumer expectation test, or both, is appropriate in light of
the evidence presented." Potter, 241 Conn. at 223. Also, because "the risk-utility test is
neither a strict liability nor a negligence standard, but reflects a blend of the two, and thus
displaces those theories in design defect cases," Izzarelli, 321 Conn. at 233, adopting a
single standard risk-utility test would eliminate the threat of inconsistent verdicts due to
instructions on multiple theories of liability arising from the same product defect. These
important clarifications would create efficiencies in product liability cases, and ease the
courts' burden in administering them.
Clarifying and simplifying Connecticut product liability law would also fulfill the
purpose of the Connecticut Product Liability Act, which was intended to simplify product
liability actions by requiring plaintiffs to bring all product liability claims under a single
statutory cause of action.14 As the Izzarelli concurrence observed, "a single standard
tailored specifically to design defect claims would do away with the need to plead or prove
separate strict liability and negligence theories and avoids the confusing use of multiple
theories to address the same underlying issue whether the manufacturer chose a
reasonably safe product design." Izzarelli, 321 at 240-01. As a result, the CPLA and the

For example, during debate of the CPLA, Rep. Berman explained: "[I]t is a single cause
of action. It eliminates the complex pleading which we presently have involving, as I said,
warrantee and strict liability and negligence...." Transcript of House Floor Debate, May
10, 1979, 22 House of Representatives Proceedings, Part 20, 1979 Session at 7021-22.
This purpose was reiterated the following day: "We are now going with a single product
liability cause of action. Formally we had a concept of strict liability. We had negligence
and we had warrantee causes .... So now we are going with one single product liability
cause of action." Transcript of House Floor Debate, May 11, 1979, 22 House of
Representatives Proceedings, Part 21, 1979 Session at 7286-87.
14

10

Restatement (Third) are entirely consistent. Adopting the Restatement (Third) would fulfill
the Connecticut legislature's intent to simplify product liability law.
2.

The reasonable alternative design requirement assists the

factfinder and improves the quality of results by providing an
objective standard by which to evaluate design defect claims.

The Restatement (Third) requires proof of a reasonable alternative design to

establish a design defect in most cases, with certain exceptions. See Restatement (Third)
2(b); see also id. 2 cmt. (e) (specifying exceptions to proof of reasonable alternative
design). As the Izzarelli concurrence notes, "a jury needs an objective basis against which
to compare the product at issue to determine whether the product was defective...."
Izzarelli, 321 Conn. at 217-18. Providing such evidence is especially important in design
defect cases where a manufacturer's overall design is called into question. "[G]iven the
significant consequences at stake when a design defect claim is assertedthe
condemnation of an entire line of productsit is only fair that some safer alternative be
proposed before allowing a jury to declare a product design defective. Izzarelli, 321 Conn.
at 223 (citing 1 D. Owen & M. Davis, supra, at 8:10, p. 741).
Fundamentally, evidence of a reasonable alternative design gives factfinders
evidence from which to assess the product design at issue, and to reasonably conclude
whether a product is "not reasonably safe," rather than deciding such a complex issue in a
vacuum without guidance. It provides necessary context about the technology available to
create a safer product, which avoids decisions improperly based on intuition or speculation.
See J. A. Henderson, Jr. &Aaron D. Twerski, "Intuition and Technology in Product Design
Litigation: An Essay on Proximate Causation," 88 Geo. L.J. 659, 661 (2000). Conversely,
"[a] risk-utility analysis without a reasonable alternative design lacks an objective basis for

11

comparison, leaving the jury with only vague guidance about whether a product design is
defective." Izzarelli, at 226.
This Court should adopt the reasonable alternative design requirement of the
Restatement (Third) to ensure that Connecticut factfinders are presented with evidence
from which they can reasonably determine whether a product at issue actually could
reasonably have been made safer at the time of design and manufacture, rather than
arbitrarily assessing whether there was some possible way their products could have been
made safer before they were sold without regard for feasibility, practicality, or cost.
3.

The risk-utility test and its reasonable alternative design

requirement also are beneficial because they encourage
responsible innovation and development.

By balancing the risks and utilities of a product, and providing an objective basis for
factfinders to assess whether a product is reasonably safe, the risk-utility test of the
Restatement (Third) and its reasonable alternative design requirement create an
environment where manufacturers understand the standards by which their products will be
evaluated. This allows manufacturers to innovate and develop new products that may have
useful, but inherently dangerous characteristics that cannot feasibly be made safer.
Manufacturers will not be held liable for a product design without a plaintiff showing that
there was something that the manufacturer reasonably could have done to make a product
safer. This is consistent with the state's well-established policy that manufacturers are not
insurers of all injuries caused by their products. Potter, 241 Conn. at 210.
Having clear and fair standards will encourage manufacturers to innovate new
products from which consumers will benefit. It would avoid the concern of the Izzarelli
concurrence that "[i]mposing liability for a product, despite the absence of reasonable

12

alternatives, could deprive consumers of an otherwise useful product if the risk of adverse
verdicts prompts the manufacturer either to cease production or to significantly increase the
cost of the product, rendering it prohibitively expensive for some consumers." izzarelli, at
226-27. The Restatement (Third) presents a balanced approach to liability that takes into
account the practical and real-world considerations that go into developing, designing, and
manufacturing new products.
The risk utility test, and its reasonable alternative design requirement, is not just the
best, but also the most fair test for design defect cases. The risk utility test provides the
proper balance between encouraging innovation and development while holding
manufacturers responsible for designs that are not reasonably safe.
C.

The Court's Concern's In Potter Have Been Addressed By Restatement

(Third).

The Court's concerns in Potter, relating to the requirement of a reasonable

alterative design, while perhaps appropriate for the Draft Restatement, do not apply to the
final version of the Restatement (Third). 241 Conn. 199. In Potter, the defendants argued
that the plaintiffs failed to present sufficient evidence for the jury reasonably to have found
that the products at issue were defective. Id. at 206-07. The defendants urged the Court to
abandon the ordinary consumer expectation standard and instead require that a plaintiff in
a product liability action arising from a design defect prove a reasonable alternative design
in order to prevail. Id. at 215.15 The Court "[declined] to accept the defendants' invitation;"
id.; explaining it was concerned that requiring proof of a reasonable alternative design as
championed by the then-draft Restatement (Third) of Torts "imposes an undue burden on
plaintiffs that might preclude otherwise valid claims from jury consideration." Id. at 217.
15

Notably, in Potter, the plaintiffs presented evidence of design alternatives at trial. See
241 Conn. at 204-206, 225.
13

In declining to adopt the draft of the Restatement (Third) of Torts, the Court
specifically identified two concerns with the alternative design requirement:
"Such a rule would require plaintiffs- to retain an expert witness even in
1.
cases in which lay jurors can infer a design defect from circumstantial
evidence;" id. at 217-18;
2.
"[I]n some instances, a product may be in a defective condition
unreasonably dangerous to the user even though no feasible alternative design
is available;" id. at 219.
These concerns, however, no longer apply. The final Restatement (Third) took these
concerns into account and squarely addressed them.
The first concern is addressed in Section 3 of the Restatement (Third) of Torts,
entitled "Circumstantial Evidence Supporting Inference of Product Defect." This provision
provides:
It may be inferred that the harm sustained by the plaintiff was caused by a
product defect existing at the time of sale or distribution, without proof of a
specific defect, when the incident that harmed the plaintiff:
(a) was of a kind that ordinarily occurs as a result of product defect; and
(b) was not, in the particular case, solely the result of causes other than
product defect existing at the time of sale or distribution.
Accordingly, section 3 dispenses with the requirement of proof of an alternative design in
these circumstances. Instead, it allows a jury to infer the existence of some product defect
from the nature of the product failure, along with evidence showing that the product's failure
was not caused by something other than a defect.
The Restatement (Third) also addresses the Potter Court's second concern by
eliminating the alternative design requirement when the product design at issue is
manifestly unreasonable. See Restatement (Third) of Torts at 2, cmt. (e). As the Izzarelli
concurrence observed, "[t]he Restatement (Third) acknowledges that, in rare and extreme
14

cases, a product design may be so obviously unacceptable that a manufacturer can fairly
be held liable for harm even if no safer alternative is feasible." Indeed, the Restatement
(Third) provides that in situations involving manifestly unreasonable designs, a jury may
"conclude that liability should attach without proof of a reasonable alternative design" when
"the extremely high degree of danger posed by [a product's] use or consumption so
substantially outweighs its negligible social utility that no rational, reasonable person, fully
aware of the relevant facts, would choose to use, or to allow children to use, the product."
Restatement (Third) of Torts at 2, cmt. (e).
Moreover, the Reporters of the Restatement have noted that there is no substantive
difference between Potter and the current Restatement (Third) standard:
The Connecticut Supreme Court's analysis in Potter is, in actuality, perfectly
consistent with this Restatement," and it is recommended that, "when the
issue is next before [that] court, [it] may find it easier to accept the
Restatement as consistent with its position as articulated in Potter. Whatever
ambiguities in the earlier draft may have misled the court in this regard, those
ambiguities have since been eliminated.
Izzarelli, 321 Conn. at 231 (discussing Restatement (Third), supra, at 2, Reporters' Note
to cmt. (d), pp. 72-73).
One fundamental significance of adopting the Restatement (Third) would be
recognition of a reasonable alternative design requirement in all cases where no exception
applies. However, as a practical matter, the lack of such a requirement does not appear to
have had an appreciable effect on product liability cases in Connecticut. Empirical evidence
demonstrates that evidence of alternative designs is ubiquitous in Connecticut practice. As
the Izzarelli concurrence observed, "at least as of 2009," there were no reported cases
involving traditional design defect claims since Potter that have been submitted to a jury
without proof of a reasonable alternative design." izzarelli, 321 Conn. at 172 (emphasis in
15

original). Therefore, having a default rule where such evidence is required going forward
should not present a substantial change in the manner in which most design defect claims
are tried in Connecticut courts. See also Restatement (Third), 2, Reporters' Note to
comment (d), II, (C) (observing that the reasonable alternative design requirement is
consistent with Connecticut case law, including Potter).
The benefit of having a clear, single risk-utility standard for determining liability
would be a clear understanding that evidence of a reasonable alternative design is required
in all cases where no exception applies. As such, it makes sense to follow the Izzarelli
concurrence and:
"accept the invitation of the reporters of the Restatement (Third) to reconsider
the standard that this court employs in design defect cases and to adopt the
approach for resolving design defect claims described in 1, 2 and 4 of the
Restatement (Third). Doing so will bring our design defect law in line with
current product liability jurisprudence and eliminate our reliance on the now
outdated consumer expectations standard from the Restatement (Second),
which has proven' ill-suited for design defect claims.
Izzarelli, 321 Conn. at 242-43.
D.

Adopting The Restatement (Third) Will Make Connecticut Law

Consistent With Other Jurisdictions, Resulting In Better
Predictability For Connecticut Courts, Practitioners, And Parties.

"[A] consensus has emerged that design defect claims are best resolved by using
risk-utility balancing to compare the manufacturer's chosen design against safer
alternatives to determine whether it was feasible for the manufacturer to have created a
safer product." Izzarelli, 321 Conn. at 221-22. By adopting the Restatement (Third), the
Court will bring Connecticut in line with the majority of other jurisdictions and provide
consistency and predictability for parties in product liability suits. Forty states and the
District of Columbia use some form of risk-utility analysis in their approach to determining

whether a product is defectively designed.16 Many of these jurisdictions exclusively employ

a risk-utility test.' It is telling that states with vibrant manufacturing industries use a riskutility test.'$ Only nine states exclusively apply the consumer expectations test.19

16

Townsend v. General Motors Corp., 642 So. 2d 411, 418 (Ala. 1994) ("plaintiff must
prove that a safer, practical, alternative design was available"); General Motors Corp. v.
Farnsworth, 965 P.2d 1209, 1220 (Alaska 1998); Dart v. Weibe Mfq., 709 P.2d 876, 882
(Ariz. 1985) (en banc) ("Under strict liability
[t]he question is whether, given the
risk/benefit factors ...and any others which may be applicable, it was unreasonable for a
manufacturer with such knowledge to have put the product on the market"); Lee v. Martin,
45 S.W.3d 860, 864 (Ark. 2001); Soule v. General Motors Corp., 882 P.2d 298, 310 (Cal.
1994) (holding that the Barker risk-utility prong is the appropriate standard for design
defect, and limiting the consumer expectations test to cases involving simple products);
Comacho v. Hondo Motor Co., 741 P.2d 1240, 1247-48 (Colo. 1987)(for complex products,
requiring a balancing of risks, utilities and other factors); Potter v. Chicago Pneumatic Tool
Co., 241 Conn. 199 (1997); Mazda Motor Corp. v. Lindahl, 706 A.2d 526, 532 (Del. 1998)
("manufacturer's failure to minimize risks, when it is reasonable to do so, will result in
liability for harm caused by the unreasonably dangerous nature of the product."); Warner
Fruehauf Trailer Co. v. Boston, 654 A.2d 1272, 1276 (D.C. 1995)(approving "some form of
a risk-utility balancing test" for complex products) (applying District of Columbia law);
Radiation Tech., Inc. v. Ware Constr. Co., 445 So. 2d 329, 331 (Fla. 1983) (test "balances
the likelihood and gravity of potential injury against the utility of the product, the availability
of other, safer products to meet the same need," and more); Banks v. Ici Ams., 450 S.E.2d
671, 674 (Ga. 1994) ("we hereby adopt the risk-utility analysis"); Tabieros v. Clark Equip.
Co., 944 P.2d 1279, 1311 (Haw. 1997); Mikolajczyk v. Ford Motor Co., 901 N.E.2d 329,
352 (III. 2008); IND. CODE ANN. 34-20-2-2 (Although section 34-20-4-1 of the Indiana
Code adopts the consumer expectation test, the Code specifically provides that, for liability
to attach in cases where there is an alleged design defect or failure to warn, "the party
making the claim must establish that the manufacturer or seller failed to exercise
reasonable care under the circumstances in designing the product or in providing the
warnings or instructions."); Miller v. Todd, 551 N.E.2d 1139, 1141-42 (Ind. 1990)
("Defectiveness" means "claimant should be able to demonstrate that a feasible, safer,
more practicable product design would have afforded better protection"); Wright v. Brooke
Group, Ltd., 652 N.W.2d 159, 169 (Iowa 2002) ("adopt [ing] Restatement (Third) of Torts:
Product Liability sections 1 and 2 for product defect cases"); Toyota Motor Corp. v.
Gregory, 136 S.W.3d 35 (Ky. 2004); Johnson v. Black &Decker U.S., Inc., 701 So. 2d
1360, 1363 (La. App. 1997); Guiggey v. Bombardier, 615 A.2d 1169, 1172 (Me. 1992)("To
determine whether a product is defectively dangerous, we balance the danger presented by
the product against its utility."); Nissan Motor Co. v. Nave, 740 A.2d 102, 118 (Md. App.
1999) ("In design defect cases, Maryland courts employ the `risk/utility' balancing test to
determine whether a specific design is unreasonably dangerous."); Uloth v. City Tank
Corp., 384 N.E.2d 1188, 1193 (Mass. 1978) (case for jury if "the plaintiff can show an
available design modification which would reduce the risk without undue cost or
17

interference with the performance of the machinery"); Prentis v. Yale Mfc~Co., 365 N.W.2d
176, 185 (Mich. 1984) (adopting "risk-utility test in products liability actions against
manufacturers of products, where liability is predicated upon defective design."); Forster v.
R.J. Reynolds Tobacco Co., 437 N.W.2d 655, 661 (Minn. 1989) ("In this state we use a
risk-utility balancing test to determine if a product liability claim will lie for a design defect.");
Williams v. Bennett, 921 So. 2d 1269, 1276 (Miss. 2006); Rix v. General Motors, 723 P.2d
195, 202 (Mont. 1986) ("[a] design is defective if at the time of manufacture an alternative
designed product would have been safer than the original designed product and was both
technologically feasible and a marketable reality"); Endresen v. Scheels Hardware &Sports
Shop, Inc., 560 N.W.2d 225, 233-34 (N.D.1997); Thibault v. Sears, Roebuck & Co., 395
A.2d 843, 846 (N.H. 1978)(adopting a risk utility analysis for design defect, "weighing utility
and desirability against danger"); Diluzio-Gulino v. Daimler Chrysler Corp., 897 A.2d 438,
441 (N.J. Super App. Div. 2006) ("A plaintiff asserting a design defect in products liability
action `must prove, under risk-utility analysis, existence of alternate design that is both
practical and feasible,' and `safer' than that used by manufacturer."'); Smith v. Bryco Arms,
33 P.3d 638, 644 (N.M. App. 2001) ("Determining whether a product design poses an
unreasonable risk of injury also involves considering whether the risk can be eliminated
without seriously impairing the usefulness of the product or making it unduly expensive");
DeWitt v. Eveready Battery Co., 550 S.E.2d 511, 517 (N.C. App. 2001); Denny v. Ford
Motor Co., 662 N.E.2d 730, 735 (N.Y. 1995)(design defect test includes multiple factors of
"both risks and benefits"); Perkins v. Wilkinson Sword, Inc., 700 N.E.2d 1247 (Ohio 1998);
McCathern v. Toyota Motor Corp., 23 P.3d 320 (Or. 2001); Azzarello v. Black Bros. Co.,
391 A.2d 1020, 1026-27 (Pa. 1978); Branham v. Ford Motor Co., 701 S.E.2d 5 (S.C.
2010); First Premier Bank v. Kolcraft Enters., Inc., 686 N.W.2d 430, 444-45 (S.D. 2004),
superseded by rule change on unrelated grounds 2006 S.D. Sess. Laws Ch. 341 as
recognized in In re Estate of DuebendorFer, 721 N.W.2d 438, 444 (S.D. 2006); Rav ex rel.
Holman v. BIC Corp., 925 S.W.2d 527, 533 (Tenn.1996); Hernandez v. Tokai Corp., 2
S.W.3d 251, 256 (Tex. 1999) (discussing "risk-utility analysis" as a "requisite element of a
cause of action for defective design"); Wankier v. Crown Equip. Cori., 353 F.3d 862 (10th
Cir. 2003)(Utah law); Soproni v. Polygon Apartment Partners, 971 P.2d 500, 505 (Wash.
1999); Church v. Wesson, 385 S.E.2d 393, 395 n. 6 (W.V.1989) ("`unsafe' imparts a
standard that the product is to be tested by what the reasonably prudent manufacturer
would accomplish in regard to the safety of the product,. having in mind the general state of
the art of the manufacturing process, including design, labels and warnings, as it relates to
economic costs, at the time the product was made").
~~ General Motors Corp. v. Jernigan, 883 So.2d 646, 662-63 (Ala. 2003); Armentrout v.
FMC Corp., 842 P.2d 175, 183-84 (Colo.1992); Banks v. ICI Ams., Inc., 450 S.E.2d 671,
674-75 (Ga. 1994); Wright v. Brooke Group Ltd., 652 N.W.2d 159, 169 (Iowa 2002);
Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 42 (Ky. 2004); Jenkins v. Int'I Paper Co.,
945 So.2d 144, 150-51 (La.Ct.App.2006); St. Germain v. Husgvarna Cori., 544 A.2d 1283,
1285-86 (Me.1988); Gregory v. Cincinnati Inc., 538 N.W.2d 325, 329-30 (Mich. 1995);
Kallio v. Ford Motor Co., 407 N.W.2d 92, 96-97 (Minn.1987); Williams v. Bennett, 921
So.2d 1269, 1273-75 (Miss. 2006); Rix v. Gen. Motors Corp., 222 Mont. 318, 723 P.2d
~;~

Having Connecticut law in line with the laws of most jurisdictions would produce
many benefits. Courts and practitioners will have a clear understanding of the standards
applicable to product liability cases, and can use the Restatement (Third), its commentary,
and the well-developed case law interpreting it as guidance in Connecticut cases.
Manufacturers will also have a better understanding of the standards by which their
products will be judged.

Importantly, because products will be judged by the same

standard in Connecticut as in most other states, there will be no greater risk of liability here,
and therefore no disincentive from either a jurisdiction or choice of law perspective for
manufacturers to develop or to continue developing products in this state.

195, 201-02 (Mont. 1986); Cavanaugh v. Skil Corp., 751 A.2d 518, 522 (N.J. 2000); Brooks
v. Beech Aircraft Corp., 902 P.2d 54, 61-62 (N.M. 1995); Denny v. Ford Motor Co., 662
N.E.2d 730, 735-36 (N.Y.1995); Azzarello v. Black Bros. Co., 391 A.2d 1020, 1026-27
(Pa. 1978); Branham v. Ford Motor Co., 701 S.E.2d 5 (S.C. 2010); Uniroyal Goodrich Tire
Co. v. Martinez, 977 S.W.2d 328, 335 (Tex.1998); Morningstar v. Black &Decker Mfg. Co.,
253 S.E.2d 666, 682-84 (W.Va. 1979).
~$ NAM fournd that, for 2015, the following states had the most manufacturing jobs in the
country: California, Texas, Ohio, Michigan, Illinois, Pennsylvania, Indiana, North Carolina,
and New Yor, available at http://www.nam.org/Data-and-Reports/State-ManufacturinqData/State-Manufacturing-Data/Z015-State-Manufacturing-Data-Table/ (last visited June 7,
2016). NAM further fround that, for 2015, the following states had the highest percentage of
their workers in manufacturing jobs: Indiana, Michigan, Iowa, and Alabama, available at
http://www.nam.orc~/Data-and-Reports/~tafie-Manufiacturinq-Data/State-Manufacturing=
Data/Manufacturing Employment-by-State-March-2016/ (last visited June 7, 2016).
19 These states are Idaho, Kansas, Nebraska, Nevada, Oklahoma, Rhode Island, Vermont,
Wisconsin, and Wyoming. Kansas, Nebraska, and Wisconsin have expressly rejected the
Restatement (Third). See Delaney v. Deere and Co., 999 P.2d 930, 934 (Kan. 2000);
Freeman v. Hoffman-La Roche, Inc., 618 N.W.2d 827, 837, 260 Neb. 552, 563 (Neb.
2000); Green v. Smith &NephewAHP, Inc., 245 Wis. 2d 772 (2001).
One state, Virginia, does not recognize a strict liability cause of action and instead uses a
negligence standard, which, for practical purposes, appears to be a hybrid between
risk/utility and consumer expectations.

19

For Connecticut manufacturers to remain competitive in this increasingly global

economy, it is essential that they have the freedom to develop products for broad
distribution under a predictable risk-utility model that allows innovative, yet reasonably safe
products. Any deviation from generally accepted standards in this regard creates
unquantifiable arbitrariness that can impede innovation and product development, or simply
put manufacturers in the unfair position of being insurers of any injury caused by their
products.
Connecticut's express adoption of the Restatement (Third) will result in clarity and
predictability in this area, and help ensure that innovation and manufacturing in this state
are not disproportionately stifled with respect to the liability standards applied by our sister
states. Connecticut should harmonize Connecticut law with the national consensus
regarding product safety and follow the Izzarelli concurrence so that Connecticut's
manufacturers are fairly subjected to the same standards as their out-of-state competitors.
CONCLUSION
CBIA urges this Court to follow the Izzarelli concurrence and join the majority of
states that have adopted 1, 2(b), and 4 of the Restatement (Third) of Torts for product
liability actions.

Respectfully Submitted,
AMICUS CURIAE
CONNECTICUT
ASSOCIATION

BUSINESS

&

INDUSTRY

~~"~
By:
Jennifer M. DelMonico, Esq.
jdelmonico cC~.murthalaw.com
Proloy K. Das, Esq.
pdas(a~murthalaw.com
Terence J. Brunau, Esq.
tbrunau(a~murthalaw.com
Eric B. Miller, Esq.
emiller murthalaw.com
Murtha Cullina LLP
CityPlace I 185 Asylum Street
Hartford, Connecticut 06103-3469
Telephone: (860) 240-6000
Facsimile: (860) 240-6150
Attorneys forAmicus Curiae
JOINED BY
New Haven Manufacturers Association
P.O. Box 3657
Woodbridge, CT 06525
Insurance Association of Connecticut
21 Oak Street, #607
Hartford, CT 06106

21

CERTIFICATION
The undersigned attorney hereby certifies, pursuant to Connecticut Rule of Appellate
Procedure 67-2, that on June 8, 2016:
(1)

the electronically submitted brief and appendix has been delivered

electronically to the last known e-mail address of each counsel of record for whom an email address has been provided; and
(2)

the electronically submitted brief and appendix and the filed paper brief and

appendix have been redacted or do not contain any names or other personal identifying
information that is prohibited from disclosure by rule, statute, court order or case law; and
(3)

a copy of the brief and appendix has been sent to each counsel of record and

to any trial judge who rendered a decision that is the subject matter of the appeal, in
compliance with Section 62-7; and
(4)

the brief and appendix being filed with the appellate clerk are true copies of

the brief and appendix that were submitted electronically; and

(5)

the brief complies with all provisions of this rule.

Proloy K. Das, Esq.

CERTIFICATE OF SERVICE
Pursuant to Practice Book 62-7 the undersigned certifies that a copy of the
foregoing was mailed this 8t" day of June, 2016, to:
David S. Golub, Esq.
Jonathan M. Levine, Esq.
Marilyn J. Ramos, Esq.
Silver Golub & Teitell LLP
184 Atlantic Street
Stamford, CT 06901
Tel:(203) 325-4491
Fax:(203) 325-3769
dgolub(a~sgtlaw.com
jlevine sgtlaw.com
mramosCa~sgtlaw.com
(Counsel for the plaintiff Vincent Bifolck, Executor of the Estate of Jeanette D. Bifolck, and
Individually)
Francis H. Morrison III, Esq.
John M. Tanski, Esq.
Axinn, Veltrop & Harkrider LLP
90 State House Square, 9th Floor
Hartford, CT 06103
Tel:(860) 275-8100
Fax:(860) 275-8101
fmorrison(a~axinn.com
jtanski(a.axi n n.com
(Counsel for the defendant Philip Morris USA Inc.)
John C. Massaro, Esq.
Anthony J. Franze, PHV
Arnold &Porter LLP
555 Twelfth Street, NW
Washington, DC 20004-1206
Tel.: (202) 942-5000
Fax:(202) 942-5999
john.massaro(a~a~orter.com
anthony.franze(a~aporter.com
(Counsel for the defendant Philip Morris USA Inc.)

Michael K. Murray, Esq.

Goodwin Procter LLP
Exchange Place
Boston, MA 02109
mmurray~a~goodwinprocter.com
(Counsel for the defendant Philip Morris USA Inc.)
AAG Jonathan J. Blake
Office of the Attorney General
110 Sherman Street
Hartford, CT 06105
TEL.(860) 808-5400
FAX (860) 808-5593
jonathan.blakeCa~ct.gov
(Counsel to Amicus Curiae Department of Consumer Protection)
Daniel S. Rawner, Esq.
Latham &Watkins LLP
885 Third Avenue
New York, NY 10022
Telephone:(212) 906-1200
Facsimile: (212) 751-4864
daniel.rawner[a~,lw.com
(Counsel for Amicus Curiae Chamber of Commerce of the United States of America)
Kenneth J. Parsigian, PHV
Latham &Watkins LLP
John Hancock Tower, 20th Floor
200 Clarendon Street
Boston, MA 02116
Telephone:(617) 948-6000
Facsimile: (617) 948-6001
kenneth.parsigianCa~lw.com
(Counsel for Amicus Curiae Chamber of Commerce of the United States of America)
Cristin E. Sheehan, Esq.
Morrison Mahoney LLP
One Constitution Plaza, 10th Floor
Hartford, CT 06103-1810
Phone: 860-616-4441
csheehan(a~morrisonmahoney.com
(Counsel for Amicus Curiae Product Liability Advisory Council, Inc.)

Jonathan M. Hoffman, PHV

Martin Bischoff Templeton Langslet &Hoffman LLP
888 SW Fifth Avenue, Suite 900
Portland, Oregon 97204
Phone: 503-224-3113
ihoffmanCc~martinbischoff.com
(Counsel for Amicus Curiae Product Liability Advisory Council, Inc.)

Hon. Stefan R. Underhill

United States District Court
915 Lafayette Boulevard, Suite 411
Bridgeport, CT 06604
(District Court Judge)
~,~~_.
Proloy K. Das, Esq.