United States: Alabama Supreme Court Imposes Tough Standard On Safer Alternative Design

Last Updated: September 2 2016
Article by Stephen J. McConnell

As the calendar turns from August to September, it is time once again to concede the strength of the Southeastern Conference. You probably think we are referring to college football or basketball, in which teams from Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, Missouri, South Carolina, Tennessee, and Texas prevail with grinding monotony. [We have a feeling that OJ's old college squad, USC, will have an ugly time of it against Alabama in the ostensibly neutral site of Jerry World this weekend.] But, no, we are talking about product liability law. [For the moment, we are pretending that the Weeks innovator liability abomination in Alabama never happened. Moreover, the Alabama legislature eventually cleaned up that mess.] Today we are focusing on the safer alternative requirement in design defect cases. It occurs to us that some very good cases on this issue come out of the SEC. In the beginning of the year, we discussed a Mississippi case, Mealer v. 3M, where the court dismissed a case on the ground that an elastomeric respirator was not a safer alternative to a cheap paper respirator mask. They were two entirely different products, fundamentally different in terms of operation, longevity, and expense. Consumers might have all sorts of important reasons, aside from safety, to choose one over the other.

[Readers who are especially nerdy or possess especially good memories might point out that in July we bemoaned a Louisiana opinion permitting a plaintiff to suggest that other drugs could constitute a safer alternative to the drug at issue. To our mind, different drugs, which consist of different molecules with entirely different risk-benefit profiles, are separate products and cannot be treated as a safer alternative that can shame other drugs out of existence. Under the plaintiff's (and, unfortunately, the Louisiana court's) theory, jury verdicts might drive all drugs that treat, say, diabetes, out of the market except one. And even that one would not be safe from attack. Or, to veer away from drugs and devices, we might as well shut down Harley-Davidson, since motorcycles are less safe than other modes of motorized transportation. Live to ride, ride to live? Not anymore. But don't worry too much. You can still sing “Born to be Wild” on your Hydra Glide. The recent Louisiana error stands as an aberration. As Bexis pointed out in a magnum opus blogpost that strolled down bone screw memory lane back in 2013, Louisiana has quite a lot of good safer alternative decisions.]

Today's case, Hosford v. BRK Brands, Inc., 2016 Ala. LEXIS 91 (Ala. August 19, 2016), sees the Alabama Supreme Court apply an even stricter test in pouring out a plaintiffs' case on the ground that the proposed safer alternative was a separate product altogether. The facts of Hosford are grim. A four-year-old girl died in a fire that destroyed her family's mobile home in May 2011. The fire began in a faulty electrical outlet in the girl's bedroom. Her family sued the manufacturer of the smoke alarms in their mobile home. The theory was that the smoke alarms were defectively designed because they relied solely on ionization technology which, the plaintiffs alleged, failed to give adequate warning to allow an escape in the event of a slow smoldering fire. There are dual sensor smoke alarms on the market that employ both ionization and photoelectric technology. According to the plaintiffs, such alarms would have roused the family in time to save the little girl. After the plaintiffs presented their case at trial, the defendant moved for judgment as a matter of law. The trial court mostly granted that motion, and only one claim went to the jury. The jury ultimately returned a verdict in favor of the defendant.

The key issue on appeal in Hosford was whether the plaintiffs should have been permitted to tell the jury that a dual sensor smoke alarm was a safer alternative to the ionization alarm. The plaintiffs argued that it was, and that the issue at the very least was a factual one for the jury. But was the dispute on this point factual or philosophical – which is to say, legal? It appears to be undisputed that smoke alarms using photoelectric technology are generally more sensitive to smoke originating from smoldering fires. Then again, photoelectric technology is, in turn, generally considered to be less sensitive to smoke coming from flaming fires. The plaintiffs argued that a safer, practical, alternative to an ionization smoke alarm is a dual-sensor smoke alarm incorporating both ionization and photoelectric technology. Guess what? The defendant actually manufactures and sells such dual-sensor smoke alarms. Not surprisingly, those dual sensor alarms are generally more expensive than alarms relying solely on one technology.

Hosford plaintiffs argued that "the fundamental purpose of any residential smoke alarm – regardless of the technology it is based on – is to detect smoke and to provide a warning so that occupants of the residence can escape safely and that any residential smoke alarm can reasonably be considered an alternative to another, regardless of the specific technology used to detect that smoke." We'd be lying if we asserted that this is an easy issue. As we were taught way back in law school, it is time to start reasoning by analogy. That is what the Hosford court did. For one thing, it went through the motorcycle-car example we mentioned above. Motorcycles and cars are simply different products, even if they perform essentially the same function. The Hosford court also cited Brockert v. Wyeth Pharmaceuticals, Inc., 287 S.W. 3d 760 (Tex. App. 2009), a hormone replacement case. Even though Prempro, the allegedly defective product, and Premarin, the proposed alternative product, had essentially the same purpose – to treat menopausal symptoms – the Texas court held as a matter of law that one was not a safer alternative to the other because they were different products. The Hosford court was persuaded by the reasoning in Brockert, and therefore held as a matter of law that the dual-sensor smoke-alarm design put forth by the plaintiffs is not, in fact, a safer, practical, alternative design to an ionization smoke alarm; rather, it is a design for a different product altogether.

The Hosford court was plainly concerned that the plaintiffs' position had no logical stopping point. Entire categories of products would be at risk. Consumer choice would be squashed. Forget about motorcycles, would it be possible to justify selling convertibles or sports cars when Volvo wagons sit smugly on car lots with lots of safety features and extra metal between the driver and the opposition? If plaintiffs can insist on the safest possible product, no matter the cost, people might end up using fewer of the products. The Hosford court pointed out that the increased expense of the dual sensor smoke alarm might have resulted in installation of fewer, or even no, alarms at all. More members of the family might have perished. These are extraordinarily difficult calculations, if they can even be called calculations.

Maybe plaintiffs need to get more clever and think about how markets are defined in antitrust cases. A plaintiff might argue that products in the same market can act as alternatives for each other. If the market is Buicks, it is easy to monopolize that market. Buick does a pretty good job of that. If the market is cars, we are talking about something else. If the market is transportation, we are really talking about something else. Courts usually resolve the market definition issue by looking at cross-elasticities. Can slight price rises in one product send consumers to alternatives? If yes, we are in the same market. If not, we are not. A Buick SUV is probably in the same market as a Chevy SUV or Honda SUV. So they can be construed as alternatives to each other. (But what about a Range Rover?) Of course, product liability involves different considerations from antitrust law. But at least antitrust law has some rigor and concreteness. Product liability law is packed with way more emotion. Injuries and deaths impact jurors more than price gouging. Further, people choose products that are less safe for all sorts of reasons, including cost, jingling neurons, a doctor's bed side manner, and a million other reasons. The Hosford court wrestled with a difficult issue in a difficult case and probably did as well as it could do. At the very least, the decision offers a powerful analogy for future defendants arguing that a plaintiff's failure to suggest a safer alternative design should spell the end of design defect claim.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions