Friday, April 3, 2026
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Court of Appeal:
Consumer Expectation Test Inapplicable to Freak Accident
By a MetNews Staff Writer
The Sixth District Court of Appeal has held that the “consumer expectations test” for determining if a product is defective does not apply in a case where a woman exited a car, leaving her fob inside, her two-and-a-half year old son climbed in, starting the vehicle, which then rammed into the mother, causing severe injuries.
Justice Daniel H. Bromberg authored the opinion, filed March 4 and certified for publication on Wednesday. It affirms a judgment pursuant to the granting of a nonsuit by Santa Clara Superior Court Judge Daniel T. Nishigaya.
The SUV that plaintiff/appellant Mallory Harcourt had purchased four days before the mishap—a Tesla Model X SUV—starts up without pressing an ignition button, being activated by the presence of the fob.
Appellant’s Contention
Arguing for a reversal, Harcourt set forth in her opening brief:
“There can be no serious dispute that—for decades—American consumers have had a reasonable expectation that two-year-old children will not be able to inadvertently operate ordinary passenger vehicles. Why? Because regardless of its manufacturer, our common, everyday experience tells us that a passenger vehicle cannot be put into motion unless a person simultaneously presses its brake pedal while activating the engine’s ignition through either a key or a button, and then again pressing the brake pedal while shifting the transmission into a gear. And because our common, everyday experience also tells us that most two-year-old children do not have arms and legs long enough to perform even one of these two coordinated actions, ordinary consumers have no reason to fear of being hit by a passenger vehicle driven by a two-year-old child.”
Unpersuaded, Bromberg declared:
“For reasons that the record does not make clear, Harcourt decided to proceed based solely on the consumer expectations test without also claiming a design defect under the risk-benefit test. This decision is somewhat surprising because there is no prior decision applying the consumer expectations test in a case such as this one.”
Supreme Court Opinions
That test, recognized by the California Supreme Court in its 1978 opinion in Barker v. Lull Engineering Co., Inc., was crystalized in its 1994 decision in Soule v. General Motors Co. Then-Justice Marvin Baxter (now retired) said in Soule:
“The crucial question in each individual case is whether the circumstances of the product’s failure permit an inference that the product’s design performed below the legitimate, commonly accepted minimum safety assumptions of its ordinary consumers.”
Bromberg said that Harcourt has failed to provide “any clear explanation how the threshold requirement for applying the test” is met. He wrote:
“[I]t is unclear that ordinary consumers have minimum safety assumptions about how cars should protect against misuse by toddlers and other young children….While it is foreseeable that children may be left unattended in or around vehicles, and that children may cause (and have caused) inadvertent vehicle rollaways, a toddler climbing into a car in which the door was open and a key was left inside and then starting the car is not a common situation. As a consequence, it is not clear that ordinary consumers have any ‘commonly accepted minimum safety assumptions’ about the safety measures that a car should have to deal with this situation.”
The justice continued:
“In addition, as Harcourt acknowledged, the Tesla Model X is ‘not a normal car,’ and it has many safety features—such as PIN-to-Drive—that most cars do not. Thus, even if ordinary consumers had minimum safety assumptions about how ordinary cars should deal with the toddler misuse in this case, it is not clear that those assumptions would apply to this car.”
Res Ipsa Loquitur
Nishigaya, in granting a nonsuit, expressed the view that “the consumer expectations test should be limited to res-ipsa-like cases,” alluding to res ipsa loquitur (the thing speaks for itself). Div. Six of the Court of Appeal for this district, in the 1999 case of Pruitt v. General Motors Corp., in an opinion by then-Acting Presiding Justice Arthur Gilbert (later the presiding justice, now retired), quoted a recent law review article as saying that “California clearly limited the consumer expectations test to res ipsa-like cases.”
Harcourt argued:
“[N]o court—other than the Second District—has ever attempted to incorporate the doctrine of ‘res ipsa loquitur’ into its analysis of this theory of strict products liability. And for good reason. ‘Res ipsa loquitur’ is a rule of evidence that allows an inference of negligence from proven facts, used when there is no direct evidence of defendant’s conduct. By contrast, the “consumer-expectations test” is a ground for recovery based on strict-liability that is rooted in California’s ‘warranty heritage,’ which applies when there is direct evidence that a manufacturer put a product into the stream of commerce.”
Bromberg did not did not discuss the point other than to observe that no “ ‘res ipsa-like’ case…in which a violation of commonly accepted, minimum safety assumptions may be inferred from the mere fact of malfunction or failure” was presented by the facts.
The case is Harcourt v. Tesla, Inc., H052308.
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