This Article begins by examining some of the case law involving the state-of-the-art concept and finds that it is principally concerned with technological feasibility. It also concludes that most cases do not treat state-of-the-art as conclusive on the design defect issue; rather, they merely consider it one of several factors that the fact finder may take into account when deciding whether a product's design is defective or not. Part II is concerned with technological development. This part examines two basic patterns of technological development and provides a number of historical examples for each. The first is a linear pattern, exemplified by violins and clipper ships. The second pattern includes development involving the interaction of two different technologies, as exemplified by the progress of shipbuilding and naval gunnery technology during the sixteenth century, as well as more complex interactions among a number of seemingly unrelated technologies. Examples of this include printing with movable type, railroads, and motor vehicles.
Part III discusses the concept of commercial feasibility. It identifies some of the conditions that often lead to prompt commercialization of new technology. These include sudden changes in the physical environment, depletion of natural resources, military competition among nations, popular dissatisfaction with the state of existing technology, as well as changing demographic and social conditions. At the same time, the Article points out that a particular technological innovation may not succeed commercially because of high cost, lack of demand, resistance by competitors or workers in other industries, social or cultural resistance, and lack of a supportive infrastructure.
Finally, the conclusion offers suggestions on how the state-of-the-art doctrine in design defect cases could be made more rational and coherent. First, state-of-the-art is not a useful concept when applied to the defendant's existing design. Instead, it should only be applied to evaluate a safer, alternative design proposed by the plaintiff. Second, the plaintiff must be required to prove that his or her proposed alternative design was technologically and commercially feasible at the time the product was sold. Third, the plaintiff's proposed alternative design can be hypothetical and does not have to be actually adopted by others in the industry. Fourth, the defendant should be allowed to dispute the plaintiff's claim by offering evidence that the proposed alternative design was not technologically or commercially feasible at the time the product was sold. Fifth, the defendant should be able to argue that the technology involved was interdependent and, therefore, it could not control the pace of its development. Sixth, technological and commercial feasibility should not be treated merely as factors for the jury to take into account; rather, they should be regarded as essential to the plaintiff’s case. Consequently, a plaintiff who fails to prove that a proposed alternative design is technologically and commercially feasible should lose. Finally, even if the plaintiff proves that his or her proposed design is technologically and commercially feasible, the defendant should still be able to offer reasons, such as convenience, price, or consumer choice, to explain why its existing design should not make its product defective.
Richard C. Ausness, "Fasten Your Seat Belt, Orville!": Exploring the Relationship Between State-of-the-Art, Technological and Commercial Feasibility, and the Restatement's Reasonable Alternative Design Requirement, 45 Ind. L. Rev. 669 (2012).