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When is a Product Defective “By Design”?

A “design defect” refers to a problem in the way a product is designed, rather than the way it is manufactured. Products with design defects may be inherently dangerous, or cause injury, even when manufactured in precisely the manner the designer/manufacturer intended. 

Where design defects are significant enough to render products unreasonably dangerous, the law may hold the manufacturer liable for injuries the product causes.

The law recognizes two tests for establishing a design defect in a consumer product: the “risk-benefit” test and the “consumer expectation test.” We’ll look at each in turn.



The “risk-benefit” test customarily finds a design defect in products where the design or nature of the product creates risks (of injury) which, on balance, outweigh the benefits of the product’s design or availability.

Generally, risk-benefit analysis is performed by the “trier of fact”–the jury, in a jury trial, or the judge in a bench trial. On occasion, where the facts are so overwhelmingly weighted in favor of a given conclusion that reasonable people could not decide otherwise, the judge may take the decision out of the jury’s hands, but generally speaking risk-benefit analysis presents an issue of fact which must be evaluated based on the relevant facts of the case at hand.

The factors considered as part of the risk-benefit analysis include:

— How serious are the dangers created by the product’s design?

— How likely is it that the dangerous design will cause/result in injuries?

— Costs associated with improving the design / safety of the product.

— The feasibility of a safer or alternative design. (In other words: is it possible, as a practical question, to make the product safer? Or is the current design the only one capable of production?)

— Any adverse consequences (to the product or to consumers) of a safer, alternative design.

Note: some products are considered so important, or so beneficial, to society that the law refuses to consider them “defective,” despite the risks of injury associated with their existence and design. Plaintiffs cannot sue the manufacturers of these products for strict liability claims based on design defects. (A good example of this immunity is certain prescription drugs.)

Do not attempt to evaluate whether or not you might have a claim for strict liability–based on design defects or otherwise–without obtaining an opinion or consultation from an experienced attorney.

The law recognizes that consumer standards and information, as well as manufacturing standards, may change over time. Sometimes, designs which were considered “safe” when a product was produced may be considered “Defective” when an injury occurs (sometimes years after the product’s initial manufacture). Changing standards alone are insufficient to create a strict products liability action based on design defects; however, these changing standards may impact the plaintiff’s ability to proceed on a negligence claim against the manufacturer. For this reason (and others), it’s important to consult with an attorney who understands the variety of claims which may result from a personal injury.

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Under the “consumer expectation” test, a product’s design is defective if the product (as designed, and when used as intended or in a reasonably foreseeable manner) does not perform as safely as ordinary consumers would expect.

The test sounds simple, but in fact requires a significant amount of proof. Also, note that the test involves the expectations of  “ordinary consumers”–not the injured plaintiff’s subjective opinion. Although the injured plaintiff may be an ordinary consumer, and the product may be defectively designed, the fact that a plaintiff was injured, and believes the product to be unsafe in design, does not necessarily equate to a legally actionable design defect.

Generally, this “consumer expectation” test is used only in cases where a jury can evaluate the product’s safety and design based on users’ normal experiences with the product. Where a product is rare, unusual, or designed for use by people with a specific, non-ordinary skill set, this may or may not be an appropriate way to judge the product’s design.

Injured parties should consult an experienced attorney promptly to obtain an individualized evaluation of their potential rights and claims. 


DISCLAIMER: This article is intended for informational purposes only, does not constitute legal advice to any person or entity, and does not create an attorney-client relationship with any person or entity. The law, and personal injury/products liability in particular, are complex legal topics, and no single article can provide complete or comprehensive coverage or information about this or any other legal topic or issue. Your personal rights, claims, and/or liability may differ, based on your individual facts and circumstances. Do not rely on this or any other online article, to advise you of your legal rights. If you believe you have a legal claim or issue, or wish to know more about your individual rights, consult an experienced attorney without delay.

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