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O’Brien v. Muskin Corp

Citation. O’Brien v. Muskin Corp., 94 N.J. 169, 463 A.2d 298, CCH Prod. Liab. Rep. P9735 (N.J. Aug. 2, 1983)
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Brief Fact Summary.

The Plaintiff, Gary O’Brien (Plaintiff), was injured when he dove into an above ground pool designed and manufactured by the Defendant, Muskin Corp. (Defendant). Plaintiff brought suit claiming that Defendant was strictly liable for the defectively designed pool.

Synopsis of Rule of Law.

Based on risk utility analysis, a defendant may be liable for a design defect even if his product complied with the existing level of technological advances at the time of design.


Plaintiff arrived uninvited at the home of Arthur and Jean Henry and dove into their above ground pool made by Defendant. As Plaintiff’s hands hit the vinyl lined pool bottom, they slid apart and Plaintiff sustained injuries when his head hit the bottom. The water in the pool was filled to a depth of approximately three and one-half feet and a warning decal saying Do Not Dive appeared beneath the manufacturer’s logo in letters approximately one-half inch high. Plaintiff claimed that Defendant was strictly liable for manufacturing and marketing a defectively designed pool, specifically because of the slippery quality of the lining and inadequate warnings. The trial court limited the jury’s consideration to the adequacy of the warning.


Did the trial court err by not permitting the jury to determine if the risks of injury associated with the pool so outweighed the utility of the product as to constitute a defect?


Yes. Judgment reversed and remanded.
* At trial, Plaintiff produced a witness that testified that the wet vinyl used in the pool was twice as slippery as the rubber latex used in in-ground pools. The witness admitted that he knew of no above ground pool that used any material for liner except for latex, but nonetheless contended that vinyl should not be used even if no other material was available. Defendant’s witness testified that vinyl was the best material because it allowed outstretched arms to glide, thus preventing the diver’s head from striking bottom.
* In contrast to manufacturing defects, the standard measure for design defects is a comparison of the utility of the product with the risk of injury that it poses to the public. Factors relevant to this decision include: (1) The usefulness and desirability of the product; (2) The safety aspects of the product; (3) The availability of a safer substitute product; (4) The ability of the manufacturer to eliminate the unsafe character of the product; (5) The user’s ability to avoid danger; (6) The anticipated awareness of the user of the inherent dangers of the product and their avoidability and (7) The feasibility of the manufacturer spreading the loss.
* These factors also include the “state-of-the-art”, or the scientific knowledge available in the industry at the time the product was designed. However, complying with the state-of-the-art does not provide an absolute defense, as the burden is on the Defendant to prove that compliance with this justifies placing a product on the market. Other considerations, such as the relative need for the product, or if the product was an essential or a luxury, might lead to the determination that the risk involved with the product still outweighed its utility.


Justice Schreiber’s concurring and dissenting opinion omitted.
Concurrence. Justice Clifford concurring in the result.


The majority of jurisdictions today use some form of risk utility analysis in design defect cases.

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