Bifolck v. Philip Morris, Inc.
Connecticut Supreme Court
152 A.3d 1183 (2016)
Rule of Law
A plaintiff may prove that a product was defective under the risk-utility test or the consumer-
expectation test.
Facts
Vincent Bifolck’s (plaintiff) wife, Jeanette Bifolck, died from lung cancer at the age of 42. Mr.
Bifolck brought an action against Philip Morris, Inc. (Morris) (defendant), alleging that the Marlboro
and Marlboro Light cigarettes manufactured by Morris were defectively designed and caused Mrs.
Bifolck’s lung cancer and subsequent death. Mr. Bifolck’s complaint asserted a products-liability
claim and set forth allegations in support of a theory of strict liability. Mr. Bifolck alleged that
Morris’s cigarettes were defective and unreasonably dangerous. Connecticut courts had adopted §
402A of the Restatement (Second) of Torts that imposed liability for defective products that are
unreasonably dangerous. The courts had also adopted comment (i) to § 402A, which defined an
unreasonable danger in relation to consumer expectations. Morris argued that the court should
consider the claims under the Restatement (Third) of Torts because it is more consistent with caselaw
and litigation practices. Mr. Bifolck argued that the court should not abandon the Second Restatement
approach because doing so would have a detrimental effect on injured consumers. The court
considered whether to adopt the Third Restatement.
Issue
May a plaintiff prove that a product was defective under the risk-utility test or the consumer-
expectation test?
Holding and Reasoning (McDonald, J.)
Yes. A plaintiff may prove that a product was defective under the risk-utility test or the consumer-
expectation test. Under § 2(b) of the Third Restatement, a product is defective in design if the
foreseeable risks of harm posed by the product could have been reduced or avoided through the use of
a reasonable alternative design and the omission of the alternative design renders the product not
reasonably safe. Section 2(b) of the Third Restatement contrasts with § 402A of the Second
Restatement in that § 2(b) imposes requirements of proof that the harm was foreseeable and proof that
a reasonable alternative design existed that would have reduced or avoided the danger. Section 402A
does not require that harm was foreseeable. Section 402A contains a true strict-liability standard,
imposing a product seller to liability to the consumer even if the seller exercised all possible care in
the preparation and sale of the product. Under § 402A, a plaintiff may establish liability solely by
reference to the product sold upon proof that its risks outweigh its utility. The court will not adopt the
Third Restatement at this time, but it will clarify the strict-liability standard under the Second
Restatement. The tests under the Second Restatement will be distinguished as the consumer-
expectation test and the risk-utility test. The risk-utility test permits a plaintiff to proffer evidence of a
reasonable alternative design. The plaintiff will be required to allege whether a reasonable alternative
design could have reduced or avoided the danger, or whether the design of the marketed product is
manifestly unreasonable so that the risk of its harm outweighs the utility so that a reasonable
consumer would not purchase the product, or both. To show that a product is unreasonably dangerous
because it lacked a feature that would reduce injury, a plaintiff must show that the alternative design
was economically and technically feasible. Under the consumer-expectation test, a product is
unreasonably dangerous if it is “dangerous to an extent beyond what that which would be
contemplated by the ordinary consumer that purchases it.” Under both tests, the fact-finder must
consider whether the risk of danger in the challenged design is outweighed by the benefits. The court
declines to abandon these tests.
