Products Liability Law Daily Wrap Up, DESIGN AND MANUFACTURING DEFECTS—MOTOR VEHICLES—Cal. App.: Design defect claim against Tesla dismissed where claimant relied on ‘consumer expectations test’, (Mar 6, 2026)

By Nicholas Kaster, J.D.

This case did not resemble any case in which the consumer expectations test previously has been held or said to apply, said the court.

A trial court properly dismissed a design defect claim against Tesla where the claimant relied solely on the “consumer expectations test,” a California state appellate court held. The claimant was injured when she left the key fob in her new Tesla Model X, and her toddler climbed in, started the car, and the car slammed into her. The state supreme court has stated that the consumer expectations test applies only in cases “in which the everyday experience of the product’s users permits a conclusion that the product’s design violated minimum safety assumptions.” The claimant failed to persuade the appellate court that the everyday experience of consumers created any safety assumptions concerning the sort of misuse involved in this case. Thus, the court concluded that the consumer expectations test did not apply here, and because the claimant chose not to assert a defect on any alternative ground, the trial court’s judgment was affirmed (Harcourt v. Tesla, Inc., No. H052308 (Cal. App. Mar. 4, 2026)).

Background. Four days after purchasing a Tesla Model X SUV, the claimant was injured when she left her key fob in the car, her two-and-a-half-year-old son climbed in, he started the car, and the car slammed into her. The claimant sued Tesla, Inc., alleging a design defect allowed the child to start the car.

Unlike most cars, the Model X was not equipped with a start/stop button. Instead, the driver’s door would open if a user approached with the key fob, and once the key fob was inside, the car would turn on. Thus, a driver did not need to press a button or insert a key into the ignition to start the car; instead, if the key fob was in the car, a driver could start it by pressing the brake pedal and shifting the car into gear. The gear shifter was similar in size and location to a windshield wiper, which a driver would click up or down to shift the car into reverse or drive. The car also was equipped with several safety features. Among these was a PIN-to-Drive feature, which, once set up, required an operator to enter a 4-digit personal identification number before driving the vehicle. The claimant, who did not read the vehicle’s manual before the accident, testified that she was unaware of this feature before the accident but, had she known about the feature, she would have activated it. The vehicle was also equipped with an “obstacle aware acceleration” feature, which activated during the incident at issue to slow the vehicle down, a “brake override system,” which would reduce torque on the engine and prevent the vehicle from moving forward, and an “auto shift to park” feature, which would shift the vehicle into park in certain situations. The claimant also did not know about these features.

The claimant asserted a single cause of action for strict product liability, alleging that her Model X injured her when it “did not perform as an ordinary consumer would have expected it to perform when used or misused in a reasonably foreseeable way.” At the beginning of trial, the claimant notified the court that she intended to assert a design defect solely under the consumer expectations test. The trial court accepted her “abandonment and waiver of any effort to establish liability under the risk benefit test.” The court also granted the claimant’s request to limit evidence concerning defects to that relevant to the consumer expectations test. At trial, the claimant testified that she left her key fob in the car, but it did not occur to her that it would be dangerous to do so or to leave the door open with her young son around. She explained that she did not believe that her son could start and operate the car “because normally you would have to get in the car, put your foot on the brakes, start the car, press the button.”

Tesla’s motion for nonsuit. After the claimant rested, Tesla moved for nonsuit, arguing that she had not presented evidence showing that the consumer expectations test applied to this case. The trial court granted Tesla’s motion.

In so doing, the trial court noted that the claimant “may be right” that the Model X is defective. However, said the court, the claimant “chose to pursue this claim exclusively on a theory that in the context of the facts and circumstances of this particular case the Model X was a product about which the ordinary consumer could have formed reasonable minimal safety expectations,” and, on this theory, the claimant was wrong.

The trial court reasoned that the consumer expectations test was inapplicable for two reasons. First, the claimant failed to adequately describe the relevant features of the Model X. When a product is within the common experience of ordinary consumers, the trial court observed, to establish a design defect under the consumer expectations test, a plaintiff must identify the objective features of the product relevant to evaluating its safety. Second, the court reasoned that, if the claimed defect was not the failure of a particular and identifiable component, it was the failure of a system, and the consumer expectations test did not apply to the system here. The Model X’s safety system, the court noted, included many components, such as the PIN-to-Drive feature, which are “complicated and outside the minimum safety expectations of ordinary consumers.” In addition, the misuse of the product in this case “involved a nuanced and unique set of circumstances outside the knowledge of the ordinary consumer.” Because the Model X’s safety system “falls well outside the realm of ordinary consumers’ common knowledge or ability to form minimum safety expectations,” the trial court concluded that the consumer expectations test was inapplicable. Because the claimant had waived use of the risk-benefit test to prove strict liability and dismissed claims besides strict liability, the trial court concluded that there were no claims for the jury to resolve and it granted Tesla’s motion for nonsuit and dismissal. The current appeal ensued.

Consumer expectations test. The appellate court noted that the consumer expectations test is not suitable in all cases for the simple reason that consumers do not have an expectation in all cases how safely a product should perform. A complex product, even when it is being used as intended, may often cause injury in a way that does not engage its ordinary consumers’ reasonable minimal assumptions about safe performance. Indeed, the ordinary consumer of a product simply has no idea how it should perform in all foreseeable situations, or how safe it should be made against all foreseeable hazards. Accordingly, “the consumer expectations test is reserved for cases in which the everyday experience of the product’s users permits a conclusion that the product’s design violated minimum safety assumptions.” Consequently, in determining whether the consumer expectations test applies to a case, the crucial question is whether “the product’s design performed below the legitimate, commonly accepted minimum safety assumptions of its ordinary consumers.”

The state supreme court has identified two circumstances in which ordinary consumers form minimum safety assumptions about a product. The first circumstance is a common safety device used in a common circumstance. The second circumstance is when there is an extreme product failure or malfunction.

Plaintiffs proceeding under the consumer expectations test bear the burden of showing that the product failed to satisfy ordinary consumer expectations as to safety. To satisfy this burden, a plaintiff must establish whether the product is one about which the ordinary consumer can form reasonable minimum safety expectations. Where a product is within the common experience of ordinary consumers, it is generally sufficient if the plaintiff provides evidence concerning (1) his or her use of the product; (2) the circumstances surrounding the injury; and (3) the objective features of the product which are relevant to an evaluation of its safety.

Where the consumer expectations test does not apply, plaintiffs may use the risk-benefit test to prove design defects. Under this test, the plaintiff has the burden of demonstrating that a product’s design proximately caused the plaintiff’s injury. If this burden is satisfied, the burden shifts to the defendant to show that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design.

Application of test. Here, the claimant decided to proceed based solely on the consumer expectations test without also claiming a design defect under the risk-benefit test. The court found this decision “somewhat surprising” because there is no prior decision applying the consumer expectations test in a case such as this one. In addition, the claimant failed to offer any clear explanation how the threshold requirement for applying the test—that “the product’s design performed below the legitimate, commonly accepted, minimum safety assumptions of its ordinary consumers”—should be applied in this case.

This case did not resemble any case in which the consumer expectations test previously has been held or said to apply, said the court. For example, this case did not involve an extreme malfunction or failure like those identified by the supreme court in which a car exploded while idling at a stoplight or rolled over and caught fire in a two-mile-per-hour collision. Nor did this case involve a safety device that failed to operate when it was supposed to. Nor did the claimant assert that the Model X was defective because it lacked a safety feature within the common experience of lay jurors.

Instead, said the court, this case involved a misuse and an unusual one at that. A key fob was left in a car with an open door, a toddler entered, and the child unexpectedly performed the multiple steps—pressing on the brake, shifting the car into gear while pressing on the brake, and then releasing the brake and depressing the accelerator pedal—needed to move the vehicle. As a consequence, the case did not involve a situation within the common experience of ordinary consumers. Nor was it a “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. To the contrary, it was unclear that ordinary consumers had 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, said the court, 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. In addition, 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 was not clear that those assumptions would apply to this car.

The claimant asserted that the Model X lacked a common safety feature that the general public expects, but she failed to clearly identify that feature, much less explain why ordinary consumers expect it. Instead, she maintained that American consumers have “a reasonable expectation that two-year-old children will not be able to inadvertently operate ordinary passenger vehicles.” That may be true, said the court, but it did not follow that the consumer expectations test applied here. The consumer expectations test does not apply merely because the consumer states that he or she did not expect to be injured by the product. In most, if not all, cases in which a consumer is injured by a product, the injury is unexpected; as a consequence, if an unexpected injury or occurrence alone were enough, “the consumer expectation test always would apply and every product would be found to have a design defect.” The supreme court has stated that the consumer expectations test applies only in cases “in which the everyday experience of the product’s users permits a conclusion that the product’s design violated minimum safety assumptions.” The claimant failed to persuade the court that the everyday experience of consumers created any safety assumptions concerning the sort of misuse involved in this case.

The appellate court therefore concluded that the consumer expectations test did not apply here, and because the claimant chose not to assert a defect on any alternative ground, the trial court properly granted Tesla’s motion for nonsuit and dismissal.

The case is No. H052308.

Judge: Bromberg, D.

Attorneys: Matthew Joseph Kita (Arias Sanguinetti Wang & Team LLP) for Mallory Harcourt. Theodore Joseph Boutrous, Jr. (Gibson Dunn & Crutcher LLP) for Tesla, Inc.

Companies: Tesla, Inc.

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