Potter v. Chicago Pneumatic Tool Co.

*202 Opinion

This appeal arises from a products liability action brought by the plaintiffs1 against the defendants, Chicago Pneumatic Tool Company (Chicago Pneumatic), Stanley Works and Dresser Industries, Inc. (Dresser). The plaintiffs claim that they were injured in the course of their employment as shipyard workers at the General Dynamics Corporation Electric Boat facility (Electric Boat) in Groton as a result of using pneumatic hand tools manufactured by the defendants. Specifically, the plaintiffs allege that the tools were defectively designed because they exposed the plaintiffs to excessive vibration, and because the defendants failed to provide adequate warnings with respect to the potential danger presented by excessive vibration.

The defendants appeal from the judgment rendered on jury verdicts in favor of the plaintiffs, claiming: (1) the interrogatories and accompanying instructions submitted to the jury were fundamentally prejudicial to the defendants; (2) the trial court improperly refused to direct a verdict for the defendants even though the jury’s initial interrogatory responses demonstrated that several elements of the plaintiffs’ claims had not been proven; (3) the trial court, as a result of inconsistencies in the jury’s interrogatory responses, improperly submitted the case to the jury for reconsideration along with accompanying instructions that effectively directed the jury to return verdicts for the plaintiffs; (4) the trial court improperly instructed the jury that the defendants’ state of the art defense applied only to the failure to warn claim and not to the design defect claim; (5) the trial court’s instruction with respect to the *203alteration or modification defense improperly shifted to the defendants the burden of disproving an essential element of the plaintiffs’ case; (6) the trial court improperly instructed the jury that the alterations to the tools by the plaintiffs’ employer would bar the defendants’ liability only if these alterations had been the sole proximate cause of the plaintiffs’ injuries; and (7) the trial court should have rendered judgment for the defendants notwithstanding the verdicts because (a) there was insufficient evidence that the tools were defective in that the plaintiffs had presented no evidence of a feasible alternative design, and (b) there was insufficient evidence that the defendants’ tools reached the plaintiffs without a substantial change in condition.

In their cross appeal, the plaintiffs claim that the trial court: (1) unfairly prejudiced the plaintiffs’ claim for punitive damages by excluding evidence, based on a misinterpretation of the parties’ stipulation, of the number of other persons who allegedly had been injured by the defendants’ tools; (2) improperly refused to issue a curative instruction after defense counsel suggested during closing argument that the plaintiffs had failed to produce an expert witness to testify that the tools were defective, although the trial court had granted the defendants’ motion in limine precluding the plaintiffs from offering expert opinion evidence on that issue; (3) improperly permitted the jury to view irrelevant and prejudicial videotapes of the defendants’ manufacturing process, which included narration concerning the defendants’ quality control measures and safety testing procedures; and (4) improperly allowed the defendants to present evidence with respect to Electric Boat’s safety practices. We transferred the appeal and the cross appeal from the Appellate Court to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We agree with the defendants that the trial court’s instruction with respect to the alteration or mod*204ification defense improperly shifted to the defendants the burden of disproving an essential element of the plaintiffs’ case. We therefore reverse the judgment of the trial court and order a new trial.

The trial record reveals the following facts, which are undisputed for purposes of this appeal. The plaintiffs were employed at Electric Boat as “grinders,” positions which required use of pneumatic hand tools to smooth welds and metal surfaces.2 In the course of their employment, the plaintiffs used various pneumatic hand tools, including chipping and grinding tools, which were manufactured and sold by the defendants. The plaintiffs’ use of the defendants’ tools at Electric Boat spanned approximately twenty-five years, from the mid-1960s until 1987. The plaintiffs suffer from permanent vascular and neurological impairment of their hands, which has caused blanching of their fingers, pain, numbness, tingling, reduction of grip strength, intolerance of cold and clumsiness from restricted blood flow. As a result, the plaintiffs have been unable to continue their employment as grinders and their performance of other activities has been restricted. The plaintiffs’ symptoms are consistent with a diagnosis of hand arm vibration syndrome. Expert testimony confirmed that exposure to vibration is a significant contributing factor to the development of hand arm vibration syndrome, and that a clear relationship exists between the level of vibration exposure and the risk of developing the syndrome.

In addition to these undisputed facts, the following evidence, taken in favor of the jury’s verdict, was presented. Ronald Guameri, an industrial hygienist at Elec*205trie Boat, testified that he had conducted extensive testing of tools used at the shipyard in order to identify occupational hazards. This testing revealed that a large number of the defendants’ tools violated the limits for vibration exposure established by the American National Standards Institute (institute), and exceeded the threshold limit promulgated by the American Conference of Governmental and Industrial Hygienists (conference).

Richard Alexander, a mechanical engineering professor at Texas A & M University, testified that because machinery vibration has harmful effects on machines and on people, engineers routinely research ways to reduce or to eliminate the amount of vibration that a machine produces when operated. Alexander discussed various methods available to control vibration, including isolation (the use of springs or mass to isolate vibration), dampening (adding weights to dampen vibrational effects), and balancing (adding weights to counterbalance machine imbalances that cause vibration). Alexander testified that each of these methods has been available to manufacturers for at least thirty-five years.

Alexander also stated that, in 1983, he had been engaged by another pneumatic tool manufacturer to perform testing of methods by which to reduce the level of vibration in its three horsepower vertical grinder. The vertical grinder had a live handle, which contained hardware for the air power, and a dead handle, which vibrated significantly more than the live handle because it weighed less. Alexander modified the design by inserting rubber isolation mounts between the handles and the housing, and by adding an aluminum rod to the dead handle to match the weight of the two handles. As a result of these modifications, which were published in 1987, Alexander achieved a threefold reduction in vibration levels.

*206The plaintiffs also presented the testimony of Charles Suggs, a research engineer at North Carolina State University, who has been investigating machinery vibration reduction since the 1960s. In 1968, Suggs published the first of several papers in which he discussed his success in reducing vibration hazards in chain saws by inserting rubber mounts between the handle and chain saw body. In the 1970s, he also published a series of articles reporting how he had reduced vibration by 70 percent in tools without handles by wrapping the tools with a resilient foam rubber material and a metal sleeve. Additionally, in 1988, Suggs tested the defendants’ die grinders and, by applying the same technique, reduced the levels of vibration by between 35 and 60 percent. Additional facts will be presented as warranted.

After a six week trial, the trial court rendered judgment on jury verdicts in favor of the plaintiffs. Finding that the defendants’ tools had been defectively designed so as to render them unreasonably dangerous, the jury awarded the plaintiffs compensatory damages.3 The jury also concluded that the manufacturers had provided inadequate warnings. Because the plaintiffs failed to prove that adequate warnings would have prevented their injuries, the jury did not award damages on that claim. Finally, the jury declined to award the plaintiffs punitive damages. This appeal and cross appeal followed. Additional facts will be provided as warranted.

I

We first address the defendants’ argument that the trial court improperly failed to render judgment for the *207defendants notwithstanding the verdicts because there was insufficient evidence for the jury to have found that the tools had been defectively designed. Specifically, the defendants claim that, in order to establish a prima facie design defect case, the plaintiffs were required to prove that there was a feasible alternative design available at the time that the defendants put their tools into the stream of commerce. We disagree.

In order properly to evaluate the parties’ arguments, we begin our analysis with a review of the development of strict tort liability, focusing specifically on design defect liability. At common law, a person injured by a product had no cause of action against the manufacturer of the product unless that person was in privity of contract with the manufacturer. This rule, established in Winterbottom v. Wright, 152 Eng. Rep. 402 (1842), made privity a condition precedent to actions against manufacturers grounded in negligence. American courts widely adopted this rule and, for the next one-half century, the privity requirement remained steadfast in American jurisprudence.4 1 M. Madden, Products Liability (2d Ed. 1988) § 1.2, p. 8; see Bragdon v. Perkins-Campbell Co., 87 F. 109, 110 (3d Cir. 1898) (outlining rule that vendor of products generally not liable to third parties); Goodlander Mill Co. v. Standard Oil Co., 63 F. 400, 402 (7th Cir. 1894) (articulating general rule that liability does not attach to manufacturers absent contractual relationship).

The evolution of modern products liability law began with the landmark case of MacPherson v. Buick Motor *208Co., 217 N.Y. 382, 111 N.E. 1050 (1916), in which the New York Court of Appeals extended the manufacturer’s duty to all persons in fact harmed by products that were reasonably certain to cause injury when negligently made. As Justice Cardozo wrote in MacPherson, “[i]f the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.” Id., 389. The MacPherson reasoning eventually was accepted by nearly all American courts. See J. Wade, “Strict Tort Liability of Manufacturers,” 19 Sw. L.J. 5 (1965).

Similarly, the New Jersey Supreme Court in Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960), imposed “strict liability” upon the manufacturer of a defective product, but on a warranty basis. Discarding the antiquated notions of privity of contract, the court imposed upon the manufacturer an implied warranty of merchantability to a third party. Id., 373, 384. The Henningsen court stated: “We are convinced that the cause of justice in this area of the law can be served only by recognizing that [the third party] is such a person who, in the reasonable contemplation of the parties to the warranty, might be expected to become a user of the [product]. Accordingly, [the third party’s] lack of privity does not stand in the way of prosecution of the injury suit against the [manufacturer].” Id., 413.

The next major development in products liability law did not attempt to modify the negligence rule any further, but, rather, urged its replacement. In Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal. 2d 453, 461, 150 P.2d 436 (1944), Justice Roger Traynor, in a now *209famous concurring opinion, first suggested that courts should hold manufacturers liable without fault when defective products cause personal injury. Justice Traynor asserted that strict liability would serve several policy justifications: (1) manufacturers could readily absorb or pass on the cost of liability to consumers as a cost of doing business; (2) manufacturers would be deterred from marketing defective products; and (3) injured persons, who lack familiarity with the manufacturing process, would no longer shoulder the burden of proving negligence. Id., 462.

Although Justice Traynor’s argument did not prevail in Escola, nearly twenty years later he wrote for the majority in Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 62, 377 P.2d 897, 27 Cal. Rptr. 697 (1963), holding a manufacturer strictly liable because its defective product caused injury to the plaintiff. The Greenman court stated that “[a] manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.” Id. The court explained that the purpose of this rule “is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.” Id., 63.

Two years later, § 402A of the Restatement (Second) of Torts adopted, with slight variation,5 the doctrine of strict tort liability espoused in Greenman. Section 402A provides:

*210“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

“(a) the seller is engaged in the business of selling such a product, and

“(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

“(2) The rule stated in Subsection (1) applies although

“(a) the seller has exercised all possible care in the preparation and sale of his product, and

“(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.” 2 Restatement (Second), Torts § 402A (1965).

Products liability law has thus evolved to hold manufacturers6 strictly liable for unreasonably dangerous products that cause injury to ultimate users. Nevertheless, strict tort liability does not transform manufacturers into insurers, nor does it impose absolute liability. See R. Traynor, “The Ways and Meanings of Defective Products and Strict Liability,” 32 Tenn. L. Rev. 363, 366-67 (1965) (emphasizing that manufacturers are not insurers for all injuries caused by products). As the Wisconsin Supreme Court has pointed out, “[f]rom the plaintiffs point of view the most beneficial aspect of the rule is that it relieves him of proving specific acts *211of negligence and protects him from the defenses of notice of breach, disclaimer, and lack of privity in the implied warranty concepts of sales and contracts.” Dippel v. Sciano, 37 Wis. 2d 443, 460, 155 N.W.2d 55 (1967). Strict tort liability merely relieves the plaintiff from proving that the manufacturer was negligent and allows the plaintiff to establish instead the defective condition of the product as the principal basis of liability. See Morningstar v. Black & Decker Mfg. Co., 162 W. Va. 857, 883, 253 S.E.2d 666 (1979); W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 99, p. 695.

Although courts have widely accepted the concept of strict tort liability, some of the specifics of strict tort liability remain in question. In particular, courts have sharply disagreed over the appropriate definition of defectiveness in design cases.7 As the Alaska Supreme Court has stated: “Design defects present the most perplexing problems in the field of strict products liability because there is no readily ascertainable external measure of defectiveness. While manufacturing flaws can be evaluated against the intended design of the product, no such objective standard exists in the design defect context.” Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 880 (Alaska 1979).

Section 402A imposes liability only for those defective products that are “unreasonably dangerous” to “the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” 2 Restatement (Second), supra, § 402A, comment (i). Under this formulation, known as the *212“consumer expectation” test, a manufacturer is strictly liable for any condition not contemplated by the ultimate consumer that will be unreasonably dangerous to the consumer. See Rojas v. Lindsay Mfg. Co., 108 Idaho 590, 592, 701 P.2d 210 (1985); Ritter v. Narragansett Electric Co., 109 R.I. 176, 190-91, 283 A.2d 255 (1971).

Some courts, however, have refused to adopt the “unreasonably dangerous” definition, determining that it injects a concept of foreseeability into strict tort liability, which is inappropriate in such cases because the manufacturer’s liability is not based upon negligence. See Caterpillar Tractor Co. v. Beck, supra, 593 P.2d 882-83 (articulating that “unreasonably dangerous” narrows scope of recovery and unduly increases plaintiffs burden); Cronin v. J.B.E. Olson Corp., 8 Cal. 3d 121, 133, 501 P.2d 1153, 104 Cal. Rptr. 433 (1972) (“[w]e think that a requirement that a plaintiff also prove that the defect made the product ‘unreasonably dangerous’ places upon him a significantly increased burden and represents a step backward”).

In Barker v. Lull Engineering Co., 20 Cal. 3d 413, 435, 573 P.2d 443, 143 Cal. Rptr. 225 (1978), the California Supreme Court established two alternative tests for determining design defect liability: (1) the consumer expectation analysis; and (2) a balancing test that inquires whether aproduct’s risks outweigh its benefits. Under the latter, otherwise known as the “risk-utility,” test, the manufacturer bears the burden of proving that the product’s utility is not outweighed by its risks in light of various factors.8 Three other jurisdictions have *213subsequently adopted California’s two-pronged test, including the burden-shifting risk-utility inquiry.9 See Caterpillar Tractor Co. v. Beck, supra, 593 P.2d 884; Ontai v. Straub Clinic & Hospital, Inc., 66 Haw. 237, 243, 650 P.2d 734 (1983); Lamkin v. Towner, 138 Ill. 2d 510, 529, 563 N.E.2d 449 (1990).

Other jurisdictions apply only a risk-utility test in determining whether a manufacturer is liable for a design defect. See, e.g., Armentrout v. FMC Corp., 842 P.2d 175, 183 (Colo. 1992); Radiation Technology, Inc. v. Ware Construction Co., 445 So. 2d 329, 331 (Fla. 1983); Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 807-809, 395 A.2d 843 (1978). To assist the jury in evaluating the product’s risks and utility, these courts have set forth a list of nonexclusive factors to consider when deciding whether a product has been defectively designed.10

*214With this history in mind, we turn to the development of strict products liability law in Connecticut. In Garthwait v. Burgio, 153 Conn. 284, 289-90, 216 A.2d 189 (1965), this court recognized a products liability cause of action sounding in tort and became one of the first jurisdictions to adopt the rule provided in § 402A. See J. Beasley, Products Liability and the Unreasonably Dangerous Requirement (1981) pp. 21, 201. In Garthwait, the court stated: “Where the liability is fundamentally founded on tort rather than contract there appears no sound reason why the manufacturer should escape liability simply because the injured user, a party in the normal chain of distribution, was not in contractual privity with it by purchase and sale.” Garthwait v. Burgio, supra, 289. This court has further held that “[i]n order to recover under the doctrine of strict liability in tort the plaintiff must prove that: (1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition. [2 Restatement (Second), supra, § 402A]; see Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 562, 227 A.2d 418 [1967].” Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 234, 429 A.2d 486 (1980).

This court has long held that in order to prevail in a design defect claim, “[t]he plaintiff must prove that the product is unreasonably dangerous.” Id. We have derived our definition of “unreasonably dangerous” from comment (i) to § 402A, which provides that “the article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary con*215sumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” 2 Restatement (Second), supra, § 402A, comment (i). This “consumer expectation” standard is now well established in Connecticut strict products liability decisions. See, e.g., Giglio v. Connecticut Light & Power Co., supra, 180 Conn. 234; Slepski v. Williams Ford, Inc., 170 Conn. 18, 23, 364 A.2d 175 (1976); Wachtel v. Rosol, 159 Conn. 496, 500, 271 A.2d 84 (1970); Rossignol v. Danbury School of Aeronautics, Inc., supra, 154 Conn. 562; Liberty Mutual Ins. Co. v. Sears, Roebuck & Co., 35 Conn. Sup. 687, 690-91, 407 A.2d 1254 (1979).

The defendants propose that it is time for this court to abandon the consumer expectation standard and adopt the requirement that the plaintiff must prove the existence of a reasonable alternative design in order to prevail on a design defect claim. We decline to accept the defendants’ invitation.

In support of their position, the defendants point to the second tentative draft of the Restatement (Third) of Torts: Products Liability (1995) (Draft Restatement [Third]), which provides that, as part of a plaintiffs prima facie case, the plaintiff must establish the availability of a reasonable alternative design. Specifically, § 2 (b) of the Draft Restatement (Third) provides: “[A] product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.” The reporters to the Draft Restatement (Third) state that “[v]ery substantial authority supports the proposition that [the] plaintiff must establish a reasonable alternative design in order for a product to be adjudged defective in design.” Draft *216Restatement (Third), supra, § 2, reporters’ note to comment (c), p. 50.

We point out that this provision of the Draft Restatement (Third) has been a source of substantial controversy among commentators. See, e.g., J. Vargo, “The Emperor’s New Clothes: The American Law Institute Adorns a ‘New Cloth’ for Section 402A Products Liability Design Defects — A Survey of the States Reveals a Different Weave,” 26 U. Mem. L. Rev. 493, 501 (1996) (challenging reporters’ claim that Draft Restatement (Third)’s reasonable alternative design requirement constitutes “consensus” among jurisdictions); P. Corboy, “The Not-So-Quiet Revolution: Rebuilding Barriers to Jury Trial in the Proposed Restatement (Third) of Torts: Products Liability,” 61 Tenn. L. Rev. 1043, 1093 (1994) (“[t]he decisional support for [the reasonable alternative design requirement], however, appears to be overstated by the Reporters, who claim that [eighteen] states support the rule”); F. Vandall, “The Restatement (Third) of Torts: Products Liability Section 2 (b): The Reasonable Alternative Design Requirement,” 61 Tenn. L. Rev. 1407, 1428 (1994) (“The centerpiece of the Restatement (Third) of Torts: Products Liability is the requirement that the plaintiff present evidence of a reasonable alternative design as part of her prima facie case. This requirement is not supported by the majority of the jurisdictions that have considered the question.”). Contrary to the rule promulgated in the Draft Restatement (Third), our independent review of the prevailing common law reveals that the majority of jurisdictions do not impose upon plaintiffs an absolute requirement to prove a feasible alternative design.11

*217In our view, the feasible alternative design requirement imposes an undue burden on plaintiffs that might preclude otherwise valid claims from jury consideration.12 Such a rule would require plaintiffs to retain an expert witness even in cases in which lay jurors can *218infer a design defect from circumstantial evidence. Connecticut courts, however, have consistently stated that a jury may, under appropriate circumstances, infer a defect from the evidence without the necessity of expert testimony. See, e.g., Standard Structural Steel Co. v. Bethlehem Steel Corp., 597 F. Sup. 164, 183 (D. Conn. 1984) (recognizing Connecticut law permits fact finder to draw inference of defect from circumstantial evidence); Living & Learning Centre, Inc. v. Griese Custom Signs, Inc., 3 Conn. App. 661, 664, 491 A.2d 433 (1985) (“It is not necessary that the plaintiff in a strict tort action establish a specific defect as long as there is evidence of some unspecified dangerous condition. In the absence of other identifiable causes, evidence of malfunction is sufficient evidence of a defect under § 402A of the Second Restatement of Torts.”); Kileen v. General Motors Corp., 36 Conn. Sup. 347, 349, 421 A.2d 874 (1980) (“[t]he fact finder can find, where other identifiable causes are absent, that the mere evidence of a malfunction is sufficient evidence of a defect”); see also annot., 65 A.L.R.4th 346, 354-58 (1988) (listing twenty-eight states that allow establishment of prima facie case of design defect based upon inferences from circumstantial evidence).13

*219Moreover, in some instances, a product may be in a defective condition unreasonably dangerous to the user even though no feasible alternative design is available. In such instances, the manufacturer may be strictly liable for a design defect notwithstanding the fact that there are no safer alternative designs in existence. See, e.g., O’Brien v. Muskin Corp., 94 N.J. 169, 184, 463 A.2d 298 (1983) (“other products, including some for which no alternative exists, are so dangerous and of such little use that ... a manufacturer would bear the cost of liability of harm to others”); Wilson v. Piper Aircraft Corp., 282 Or. 61, 71 n.5, 577 P.2d 1322 (1978) (“Our holding should not be interpreted as a requirement that [the practicability of a safer alternative design] must in all cases weigh in [the] plaintiffs favor before the case can be submitted to the jury. There might be cases in which the jury would be permitted to hold the defendant liable on account of a dangerous design feature even though no safer design was feasible (or there was no evidence of a safer practicable alternative).”); Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 121 Wis. 2d 338, 371, 360 N.W.2d 2 (1984) (“[a] product may be defective and unreasonably dangerous even though there are no alternative, safer designs available”). Accordingly, we decline to adopt the requirement that a plaintiff must prove a feasible alternative design as a sine qua non to establishing a prima facie case of design defect.

Although today we continue to adhere to our longstanding rule that a product’s defectiveness is to be determined by the expectations of an ordinary consumer, we nevertheless recognize that there may be instances involving complex product designs in which an ordinary consumer may not be able to form expectations of safety. See 1 M. Madden, supra, § 6.7, p. 209 (noting difficulty in “determining in particular instances the reasonable expectation of the consumer”); W. Pro-

*220sser & W. Keeton, supra, § 99, pp. 698-99 (discussing ambiguity of consumer expectation test and shortcomings in its application). In such cases, a consumer’s expectations may be viewed in light of various factors that balance the utility of the product’s design with the magnitude of its risks. We find persuasive the reasoning of those jurisdictions that have modified their formulation of the consumer expectation test by incorporating risk-utility factors into the ordinary consumer expectation analysis. See, e.g., Reed v. Tiffen Motor Homes, Inc., 697 F.2d 1192, 1196-97 (4th Cir. 1982) (applying South Carolina law); Koske v. Townsend Engineering Co., 551 N.E.2d 437, 440-41 (Ind. 1990); Aller v. Rodgers Machinery Mfg. Co., 268 N.W.2d 830, 835 (Iowa 1978); Jenkins v. Amchem Products, Inc., 256 Kan. 602, 636, 886 P.2d 869 (1994), cert. denied, 516 U.S. 820, 116 S. Ct. 80, 133 L. Ed. 2d 38 (1995); Seattle-First National Bank v. Tabert, 86 Wash. 2d 145, 154, 542 P.2d 774 (1975). Thus, the modified consumer expectation test provides the jury with the product’s risks and utility and then inquires whether a reasonable consumer would consider the product unreasonably dangerous. As the Supreme Court of Washington stated in Seattle-First National Bank v. Tabert, supra, 154, “[i]n determining the reasonable expectations of the ordinary consumer, a number of factors must be considered. The relative cost of the product, the gravity of the potential harm from the claimed defect and the cost and feasibility of eliminating or minimizing the risk may be relevant in a particular case. In other instances the nature of the product or the nature of the claimed defect may make other factors relevant to the issue. ”14 Accordingly, under this modified formulation, the consumer expectation test would establish the product’s risks and utility, and *221the inquiry would then be whether a reasonable consumer would consider the product design unreasonably dangerous.15

In our view, the relevant factors that a jury may consider include, but are not limited to, the usefulness of the product, the likelihood and severity of the danger posed by the design, the feasibility of an alternative design, the financial cost of an improved design, the ability to reduce the product’s danger without impairing its usefulness or making it too expensive, and the feasibility of spreading the loss by increasing the product’s price. See Barker v. Lull Engineering Co., supra, 20 Cal. 3d 431; Banks