In the case Tannebaum v. Yale Materials Handling Corp., __ D.Md. __ (1999), the Honorable Andre M. Davis, writing for the United States District Court for the District of Maryland, held that in strict liability design defect cases where safety devices are lacking, the risk/utility test should be used.

The issue faced by this Court was whether the risk/utility test or the consumer expectation test should be used as the proper standard in a design defect case.

William Tannebaum was employed as an assistant manager in a grocery store. Among his duties was to bale and bind empty cardboard boxes and then load the bales into a trailer using a forklift. Each bale loaded weighed about 700 to 800 pounds. On November 8, 1994, Tannebaum was using the forklift when one of three bales stacked on the forklift fell from its perch. In his complaint, Tannebaum alleged that a portion of the bale penetrated into the gap between the overhead guard bars and struck him in the head, knocking him backward out of the operator's compartment of the forklift. The bale then fell on him, crushing his legs and causing severe injury.

At the time of the forklift's manufacture, several optional safety devices, including a wire mesh overhead covering as well as a side entry modification with a rear guard, were available as options. None of these safety devices were part of the forklift that Tannebaum was operating. However, even without these devices, the forklift still complied with all applicable Occupational Safety and Health Administration ("OSHA") regulations and with all applicable American National Standards Institute ("ANSI") manufacturing standards.

Tannebaum and his wife filed a three count complaint in the federal court based on diversity. The first two counts were based on strict liability based on defective design because the forklift lacked the wire mesh and the rear door. The third count alleged a derivative claim for lack of consortium.

Tannebaum argued that the Court should apply the risk/utility test while Yale Materials Handling Corp. argued that the consumer expectation test should be used as the proper standard.

Although the Court recognized that Maryland is among the states which accept and apply both tests, it agreed with Tannebaum that the risk/utility test should apply. The Court reasoned that in Maryland, "in design defect cases based on the lack of a safety device whose absence does not create an 'inherently unreasonable risk' of harm, the 'risk/utility' balancing test is applied to determine whether the product, marketed without the safety device, is 'unreasonably dangerous' so that the product is 'defective.'" Ziegler v. Kawasaki Heavy Indus., Ltd., 74 Md. App. 613, 623, 539 A.2d 701, 706 (1988). The Court stated that the "ultimate question" was whether "a manufacturer, knowing the risk inherent in his product, acted reasonably in putting it on the market." Pease v. American Cyanamid, 795 F.Supp. 755, 758 n.3 (D.Md.1992). The Court reiterated that seven factors must be considered when applying the risk utility test to determine "whether the product is unreasonably dangerous:"

"(1) The usefulness and desirability of the product - its utility to the user and to the public asa whole;

(2) The safety aspects of the product - the likelihood that it will cause injury, and the probable seriousness of the injury it will cause;

(3) The availability of a substitute product which would meet the same need and not be as unsafe;

(4) The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility;

(5) The user's ability to avoid danger by the exercise of care in the use of the product;

(6) The user's anticipated awareness of the dangers inherent in the product and ability to avoid the dangers, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions;

(7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance." Id. at 759.

Although the Court agreed with Tannebaum as to which standard to use, it granted summary judgment for the defendant, reasoning that "a reasonable fact finder could not conclude by a preponderance of the evidence that the manufacturer acted unreasonably when it marketed a narrow-isle forklift, accompanied by clear and adequate warnings and instructions as to its proper operation, without a wire mesh covering the operator's compartment or a rear door as standard equipment." The Court further bolstered its analysis by noting that the forklift in question complied with all relevant OSHA regulations and ANSI requirements. Moreover, adding a rear door to this type forklift would increase its size so that its functional utility would be diminished. The Court also looked to the fact that ANSI had twice rejected the idea that a rear door should be required as a standard feature on such forklifts as evidence that engineering professionals have assessed the risk of rearward ejectment from stand-up forklifts as not unreasonably high. The record also indicated that the presence of the rear door could actually worsen injury if, for example, an operator of the forklift needed to escape from a forklift falling off a dock.

After examining the seven risk/utility factors listed supra, the Court concluded that factors (1), (2), (4), (5), and (6) weighed "overwhelmingly in favor of the defendant," factor (7) favored Tannebaum, and factor (3) was evenly balanced between the parties. The defendant was thus entitled to judgment as a matter of law and its summary judgment motion was granted.