Business Law 13th Edition by Frank Cross, Kenneth Clarkson, Roger LeRoy Miller

Exercise 9

In the language of the court
mcleese, Associate Judge.
* * * At an annual retreat for Major League Baseball umpires, a Wilson [Sporting Goods Company] representative gave [Edwin] Hickox an umpire's mask with what the representative claimed was a new, safer design. Several months later, Mr. Hickox wore the mask while working behind home plate as an umpire during a game in Washington, D.C. In the top of the ninth inning, a foul-tipped ball struck the mask. The impact of the ball gave Mr. Hickox a concussion and damaged a joint between the bones in Mr. Hickox's inner ear. As a result, Mr. Hickox suffered permanent hearing loss of mild to moderate severity.
The mask was a traditional umpire's mask, but had a newly designed throat guard that angled forward instead of extending straight down. According to the Hickoxes, the throat guard should have had a center wire and should have extended straight down with no forward angle. Because the mask lacked these features, when the ball hit the throat guard, the mask did not deflect the ball but rather temporarily trapped the ball, concentrating the ball's energy at the point of impact. As a result, the mask was driven into Mr. Hickox's jaw with great force.
* * * * In contrast to the Hickoxes' version of events, Wilson contended the following at trial. The ball hit the mask above the throat guard, not on it, and so the same injury would have occurred even if the mask had not had a throat guard at all. Wilson intended the mask to provide protection by deflecting balls away from the wearer's head, and the mask accomplished this objective during the incident.
* * * * [Hickox and his wife filed a suit in a District of Columbia court against Wilson, claiming product liability based on a design defect.] The jury rendered verdict for the Hickoxes * * * , awarding $750,000 to Mr. Hickox and $25,000 to his wife. [Wilson appealed, arguing that the evidence was insufficient to support the verdict.]
* * * * There are two tests commonly used to determine whether a product's design was defective: the consumer-expectation test and the risk-utility test. Wilson explicitly assented at trial to jury instructions that required the jury to make findings under a consumer-expectation test. Specifically, the jury was told that "a design is defective if the product fails to perform as safely as an ordinary customer would expect when the product is used in an intended or reasonably foreseeable manner."
* * * Accordingly, we employ the consumer-expectation test to evaluate the sufficiency of the evidence in this case.
* * * The evidence indicated that the mask at issue was more dangerous than comparable masks sold at the time, such as hockey-style masks, because the mask could concentrate energy at the point of impact, rather than distribute energy evenly throughout the padded area of the mask. Because the energy possessed by a pitched baseball is adequate to cause severe injury, the jury could reasonably have concluded that a mask that concentrated energy would increase the risk of severe injury.
The jury could also have relied on the existence of safer, commercially available alternatives to draw inferences about the level of safety an ordinary user would expect. There was evidence that alternative masks with detachable throat guards and no forward angle work well and do not excessively restrict the umpire's movement. There also was evidence that Mr. Hickox would not have suffered injury to his ear had he been wearing a hockey-style mask or a mask with a center wire and no forward angle.
In addition, the jury could have concluded that the statements made by Wilson's representative to Mr. Hickox about the mask reflected Wilson's standard marketing approach, and that an ordinary consumer therefore would have expected the mask to perform more safely than other models. There was evidence that Wilson's representative told Mr. Hickox that the mask would disperse energy and protect against concussion, and that the mask was the best and safest technology. Mr. Hickox also testified that he believed that companies like Wilson tested new products and did not sell them unless they were safe to use. Jurors could consider such testimony in combination with their own reasonable inferences to determine an ordinary consumer's expectations. [Emphasis added.]
Evidence of industry practice can also be relevant to reasonable consumer expectations. Wilson's objective in designing the mask was to disperse energy, not to concentrate it. At the time of the incident, Wilson tested its hockey-style masks to determine if they met impact-intensity standards, but did not perform such testing on its baseball masks. At a time when Wilson used energy dispersal as a design objective for its baseball masks and when impact-intensity standards existed for football helmets, a reasonable juror could infer that an ordinary consumer would have expected baseball masks to disperse rather than concentrate energy. In sum, considering all the evidence, a reasonable juror could conclude that an ordinary consumer would have expected the mask to perform more safely than it did. [Emphasis added.] * * * *
The judgment of the trial court is therefore Affirmed.
Legal Reasoning Questions
1. What is the "consumer-expectation test"?
2. What factors did the court consider in determining whether the evidence in this case was sufficient to establish reasonable consumer expectations?
3. Can a jury make "inferences" to arrive at a verdict? Explain.
4. How did the appellate court's conclusion in this case affect the parties?