Litigation Defenders

Can the failure to include a safety feature make a product defective?

Increasingly, plaintiff attorneys are arguing, yes! The theory might involve a vehicle without certain driver-assistance technology, a tree stand for hunting without a fall-detection sensor or another product allegedly missing a protective feature. Candidly, it’s a creative argument.

Fortunately, for defendants, under Michigan law, omission can be the theory, but it is not enough to say the product could have been safer.

Omission Is Not Enough in Michigan

Michigan design-defect law asks whether the product was reasonably safe when it left the manufacturer’s control, not whether a plaintiff can later imagine a safer version. Prentis v. Yale Manufacturing Co., 421 Mich. 670 (1984) applies a negligence-based risk-utility framework.

Under MCL 600.2946 to prove a defect it requires proof of a practicable and feasible alternative production practice available at the time of manufacture but compliance with applicable governmental safety standards can create a presumption of non-defect.

Owens v. Allis-Chalmers Corp., 414 Mich. 413 (1982) is the defense-friendly reminder: the mere absence of a safety device does not prove defect. Plaintiffs still need evidence of risk magnitude, design utility, feasibility, reasonableness and causation.

The New Missing-Feature Claim

Advanced Driver Assistance Systems (ADAS) is one example, not the whole story. The same theory could be repackaged in any number of ways: a fall-alert sensor on a shutoff device on equipment, a guard, an alarm or software that warns of a dangerous condition.

The defense response should be equally direct. What exactly was missing? Was it production-feasible when manufactured, was it required then and would it have changed the incident?

Key pressure points include:

• Timing and feasibility. Was the feature actually available for that product, in that configuration, when it was made?
• Regulatory compliance. Did the product comply with then-existing governmental safety standards? Later standards or newer technology do not automatically prove earlier defect.
• Options and purchaser choice. If the feature was available but not selected, who made that choice and what did they know?
• System limits and causation. Would the proposed feature have detected or addressed this hazard, under these conditions, in time to prevent or mitigate this injury?
• User conduct and trade-offs. Misuse, environmental conditions, false alarms, over-reliance and interference with product utility all matter to risk-utility.

Optional Equipment: When the Buyer Said “No Thanks”

The optional-equipment doctrine is not best treated in Michigan as a magic phrase. It is better used as a defense theme: the manufacturer offered the feature, a knowledgeable purchaser declined it and the product was not unreasonably unsafe for its intended use without it.

That theme fits Michigan’s risk-utility analysis. Purchaser sophistication, available options, cost, intended use and causation all bear on whether the design was reasonably safe under Prentis and MCL 600.2946.

Bottom Line

Can the failure to include a feature be a product defect? In Michigan, the answer is yes, it can be alleged, and sometimes survive, but absence alone does not establish   liability.

Plaintiffs still must prove a feasible alternative design, unreasonable risk and causation under Michigan’s framework. For defenders, the winning move is to keep the case focused on what was known, available, required, chosen and capable of changing the outcome at the time the product left the manufacturer’s control.