concurring.
I agree with the opinion of the majority as far as it goes. However, the opinion leaves the law in products liability design defect cases amorphous. It fails to identify the gut issue.
I believe that whether a design is unreasonably dangerous must be determined by a social utility standard — risk versus benefit. If the benefits to be gained by the consuming public outweigh the risks of danger inherent in a particular design, such a product cannot be “unreasonably dangerous.” See Barker v. Lull Engineering Co., Inc., 20 Cal.3d 413, 573 P.2d 443, 143 Cal.Rptr. 225 (1978); Bowman v. General Motors Corp., E.D.Pa., 427 F.Supp. 234 (1977). The bottom line is that the trier of fact is required to balance two pairs of factors existing at the time of manufacture: (1) the likelihood that the product would cause the claimants harm or similar harms, and the seriousness of those harms; against (2) the manufacturer’s burden of designing a product that would have prevented those harms, and the adverse effect that alternative design would have on the usefulness of the product. That is to say that the manufacturer is not liable unless at the time of manufacture the magnitude of the danger to the claimant outweighed the utility of the product to the public. 72 C.J.S. Supp. Products Liability § 13; W. Kimble and R. Lesher, Products Liability section 55 (1979). See also, Louisville & Jefferson Co. Bd. of Health v. Mulkins, Ky., 445 S.W.2d 849, 851-52 (1969). The ultimate inquiry is risk versus benefit.
In the event of another trial, I believe the jury should be instructed as follows:
You will find for the Plaintiff if you are satisfied from the evidence that at the time of the manufacture of the cotton and polyester T-shirt the risk of harm from its being accidentally set on fire while being worn by a child outweighed the benefit to the public from its availability in the marketplace. Otherwise, you will find for the defendant.