Georgia’s Risk-Utility Test for Design Defects (Banks v. ICI Americas)

Georgia decides design defect claims by balancing the risks of the design against the product’s usefulness, under Banks v. ICI Americas, 264 Ga. 732 (1994). The court adopted “a test balancing the risks inherent in a product design against the utility of the product so designed”. The list of factors isn’t closed, a safer alternative is a factor rather than a required element, and a manufacturer “is not an insurer that its product is, from a design viewpoint, incapable of producing injury”.

Where the test came from

A nine-year-old boy found rat poison in an unmarked container at a boys club and died after eating it, as alleged. The jury ruled against the maker, the Court of Appeals reversed, and the Supreme Court reversed that in part, ordering a new trial on design.

The court’s account of earlier law matters. It described Center Chemical v. Parzini, 234 Ga. 868 (1975), as a decision that “addressed manufacturing and packaging defects and did not recognize the existence of design defects”. So Banks filled a gap on design, and it isn’t accurate to call Parzini a consumer expectations rule that Banks replaced. Parzini’s manufacturing and packaging analysis still applies to those claims. Banks did disapprove part of Mann v. Coast Catamaran, 254 Ga. 201 (1985): “Anything to the contrary in Mann is disapproved.”

The factors

Banks listed these in a footnote and said “no finite set of factors can be considered comprehensive”.

Group	Factor
Risk	Gravity and severity of the danger
Risk	Likelihood of the danger
Avoidability	User's knowledge, publicity, efficacy of warnings, common knowledge, and expectation of danger
Avoidability	User's ability to avoid the danger
Maker's side	State of the art when made
Maker's side	Ability to remove the danger without impairing use or making it too expensive
Maker's side	Feasibility of spreading the loss through price or insurance
Usefulness	Usefulness of the product
Benefit	Appearance and aesthetic attractiveness
Benefit	Use for multiple purposes
Benefit	Convenience and extent of use, especially without harm over time
Benefit	Collateral safety of a feature other than the one that harmed the plaintiff

The alternative design factors are separate: feasibility of an alternative, a safer substitute meeting the same need, the financial cost of the improvement, and adverse effects of the alternative.

A safer design: strong evidence, not an element

The holding says the trier of fact “may consider evidence establishing that at the time the product was manufactured, an alternative design would have made the product safer than the original design and was a marketable reality and technologically feasible”. A separate opinion wanted to make that an element, and the majority didn’t. Bodymasters v. Wimberley, 232 Ga. App. 170 (1998), calls it “one factor”.

Still, a plaintiff with no alternative has a hard road, as these cases show.

Decision	Alternative evidence	Result
Dean v. Toyota Industrial (2000)	Forklift alarm at $30 to $100, standard at Nissan, per an expert	Jury question
Ogletree v. Navistar (1999)	"[S]ome evidence" on an alarm	Jury question
Sheffield v. Conair (2018)	No evidence of a safer pad's cost or effect	Summary judgment
Woods v. A.R.E. Accessories (2018)	Expert's features seen at no maker, and unforeseeable misuse	Summary judgment

Sheffield v. Conair, 348 Ga. App. 6 (2018), lists what was missing: operating temperature, heat needed to ignite, the likelihood or avoidability of the danger, and the effectiveness and cost of a safety feature. That’s a useful checklist in reverse.

Dean v. Toyota Industrial Equipment, 246 Ga. App. 255 (2000), shows how a low-cost feature changes the case: “Where there is some evidence that the risk caused by not having an alarm outweighed the utility of the forklift in not having an alarm, the issue of negligent design cannot be decided as a matter of law.”

Obvious dangers

The obviousness of a danger doesn’t end a design case. “We hold that the ‘open and obvious danger’ rule is not controlling in a case where, as here, it is alleged that a product has a design defect”, said Ogletree v. Navistar, 269 Ga. 443 (1998). It’s “only one of many factors”. Earlier cases that said otherwise were overruled. A later visit to the same case, 271 Ga. 644 (1999), added that Banks “does not mean that adjudication as a matter of law ‘is no longer appropriate in any case in which a design defect is alleged.'” Ogletree left the question open for warning claims.

Compliance and warnings as evidence

Standards. A footnote says that “a manufacturer’s proof of compliance with industry-wide practices, state of the art, or federal regulations does not eliminate conclusively its liability”. But a federal rule might preempt a claim, as federal preemption explains. Those are different questions.

Warnings. Because avoidability includes “the efficacy of warnings”, a warning’s content can matter on design, even if it’s out of the warning claim. In Yamaha v. Hall, A26A0228 (2026), a trial court kept the jury from hearing what Yamaha’s warnings said. The Court of Appeals reversed: “The contents of Yamaha’s warnings were relevant to the jurors’ analysis.” The $7 million verdict was set aside.

Beyond the person who was using it

Design duties aren’t limited to users. In Jones v. NordicTrack, 274 Ga. 115 (2001), “the focus is not on use of the product”, and a person walking by could sue. In CertainTeed v. Fletcher, 300 Ga. 327 (2016), a daughter who said she was exposed to asbestos through her father’s work clothes had a design claim judged by Banks, while her warning claim failed. A maker seeking judgment has the burden “to show plainly and indisputably an absence of any evidence that a product as designed is defective”.

Building the case

1. Name the feature. What exactly about the design caused this harm?
2. Show risk. Severity, how likely, and who’s exposed. Use sound data, since other incidents must clear a similarity rule.
3. Show a real alternative. Existed at manufacture, worked, could be sold, and at what cost?
4. Address the downside. What did the change take away?
5. Address avoidability. What did the user know, and what did the warnings say?
6. Choose the right expert. The decisions above reward specifics and punish generalities. See expert disclosures.
7. Check the date. The time of manufacture controls what was feasible, and repose may bar the claim.

Prescription drugs get a different treatment under Bryant v. Hoffmann-La Roche, 262 Ga. App. 401 (2003), which uses comment k case by case, as pharmaceutical claims explains. The other two defect theories are on the three defect types.

Sources

• Banks v. ICI Americas, 264 Ga. 732
• Center Chemical v. Parzini, 234 Ga. 868
• Mann v. Coast Catamaran, 254 Ga. 201
• Bodymasters v. Wimberley, 232 Ga. App. 170
• Sheffield v. Conair, 348 Ga. App. 6
• Dean v. Toyota Industrial Equipment, 246 Ga. App. 255
• Ogletree v. Navistar, 269 Ga. 443
• Ogletree v. Navistar, 271 Ga. 644
• Woods v. A.R.E. Accessories, A18A0292
• Yamaha v. Hall, A26A0228
• Jones v. NordicTrack, 274 Ga. 115
• CertainTeed v. Fletcher, 300 Ga. 327
• Bryant v. Hoffmann-La Roche, 262 Ga. App. 401
• Official Code of Georgia Annotated, November 2022 public release: § 51-1-11

This page was last reviewed in November 2026 for general information. Laws and court decisions can change after that date. It is not legal advice and does not create an attorney-client relationship.