Could A Design Defect Claim Against Big Fat Have A Better Chance of Success?
What about defective design? Is it possible that fast food, even when well made, is simply a poorly designed product that could be made safer? This is even more dubious than the failure to warn claim. Usually, in a design defect case, the plaintiff must prove that the product that injured him could have been designed more safely without destroying its original utility. This is called the “reasonable alternative design” test, and it has been adopted by the American Law Institute in its recent Restatement (Third) of Products Liability. A few states, such as California, cling to another test, called the “consumer expectations test,” which asks whether the product’s design included a risk that lay outside the reasonable consumer’s expectations. Under either test, it is not clear what Barber’s argument would be. What “reasonable alternative design” could substitute for the Whopper or the french fry? And under the consumer expectations test, Barber’s complaint fares even worse. Why The Consu
