After years of work and analysis, in March of 2015, the Florida Supreme Court adopted a new set of Standard Jury Instructions in products liability cases. This is a major development for those injured by defective products whose cases go to trial. This year long project from the highest court in the nation’s third largest state is sure to be noticed by other states as they develop their own product liability standards.
For years, defense lawyers, and their manufacturers and corporate clients have urged that the Restatement Third of Torts defining product defects applies to Florida law. The manufacturers urge the “risk-benefit test” for product defects applies, while the law has previously utilized the “consumer expectations test.”
In new instruction 403.7 on strict liability, the supreme court retained both tests, and comment 3 states there will be no specific change pending further development in the law.
The risk-benefit test does not apply to claims involving a manufacturing defect (according to the comments to the instructions relying upon Cassisi v. Maytag Co., 396 So. 2d 1140, 1146 (Fla. 1st DCA 1981). There is a question, however, as to whether the risk-benefit instruction should be included in the main instruction (403.7) or whether it should be an affirmative defense under instruction 403.18. The court also left it open as to whether consumer expectations and risk-benefit may be given together or alternatively.
One of the more notable aspects of the new jury instructions is how the supreme court addressed Florida Statute §768.1256. The statute provides a rebuttable presumption of no defect when a manufacturer shows it has complied with government standards (known as the “government rules defense”).
The supreme court followed the committee’s lead and ruled that no jury instruction is to be given pursuant to §768.1256. In other words, the jury is not to be instructed about any sort of presumption about whether the manufacturer of a product complied with governmental standards and rules or not.
These jury instructions also evince Florida’s recognition of a “post-sale duty to warn,” a negligent failure to warn about particular risks of a product, even after the product has left the manufacturer’s possession, or has been sold or transferred to a consumer, or to an end user. In comment 2 to instruction 403.10, the committee notes that there may be a “special instruction” needed in cases where there are issues of a “post-manufacture” or a “post-sale” duty to warn. This is an important development particularly in light of the recent surge in recalls of products of all types. There is even a claim for “strict liability” failure to warn. This is hugely important because in Florida, a product may be unreasonably dangerous for a missing or bad warning without even having to show fault.
The new instructions (403.15) define a wide range of the issues involved in products liability cases, advising that courts may instruct jurors on claims of its breach of express warranty, implied warranty of merchantability, implied warranty of fitness for a particular purpose, as well as strict liability and negligence. The instructions (comment 6 to 403.7) make clear that those potentially subject to strict liability, may also include the “distributor, importer, or seller.” In Florida, the law imposes strict liability on any entity in the chain from manufacturer to sale.
The new instructions also show an appreciation that Fabre, and the apportionment of fault is not always workable in strict liability cases. As comment 5 to 403.7 states, “When strict liability and negligence claims are tried together, to clarify differences between them, it may be necessary to add language to the strict liability instructions to the effect that a product is defective if unreasonably dangerous even though the seller has exercised all possible care in the preparation and sale of the product.”
Strict liability has long been based on the concept that there is no need to prove fault in the event that the product left the manufacturer in an unreasonably dangerous condition. The comment advising litigants to add additional language suggests a formal recognition by the Florida Supreme Court that a “fault finding” is not required in strict liability.
Florida’s new product liability jury instructions will provide more certainty to the law applicable to product defect cases, and will hopefully make these very complex cases a little easier to try.
The new jury instructions are available here to view or download.