§ 82.005.Design Defects

The design defect elements, and the safer alternative design requirement is what makes these claims difficult.

The claimant must prove by a preponderance of the evidence that there was a safer alternative design and that the defect was a producing cause of the injury, damage, or death.

"Safer alternative design" is defined with four requirements built in. It means a design other than the one used that in reasonable probability: would have prevented or significantly reduced the risk without substantially impairing the product's utility; and was economically and technologically feasible at the time the product left the control of the manufacturer or seller by applying existing or reasonably achievable scientific knowledge.

The claimant must design the product. It is not enough to show the product was dangerous or that it failed — an alternative must be identified and shown to work, to preserve the product's usefulness, and to have been buildable and affordable at the time.

"At the time the product left the control of the manufacturer" excludes hindsight. A design that became feasible later does not establish the element.

Two exclusions. The section does not apply to a toxic or environmental tort as the proportionate responsibility chapter defines it, or to a drug or device as the federal Food, Drug, and Cosmetic Act defines those terms — pharmaceutical design claims are outside it.

Subsection (e) leaves the common law open: the section is not declarative of the common law and shall not be construed to restrict the courts in developing the common law with respect to any product not subject to this section.