“State of the Art” Defined

 

There is often confusion about the term “state of the art” vs. “custom of the industry. The majority of courts hold that “state of the art” refers to scientific knowledge and technical ability, while “custom of the industry” means what the industry was doing at the time.

Nevada has indirectly addressed the definition of “state of the art” in Fyssakis v. Knight Equip. Corp., 108 Nev. 212, 214, 826 P.2d 570, 572 (1992) where the Court stated “Under Nevada law, evidence that a product lacked adequate safety features or that a safer alternative design was feasible at the time of manufacture will support a strict liabilities claim.”  Thus, the Court implicitly defined “state of the art” as “possible at the time of manufacture”.

Moreover, in Robinson v. G.G.C., Inc., 107 Nev. 135, 138, 808 P.2d 522, 524 (1991), the Nevada Supreme Court held that manufacturers are “require[d]” to “make their products as safe as commercial feasibility and state of the art will allow.”

If  “state of the art” meant only “custom of the industry” then the Court’s statement in Robinson would be essentially neutered.  Additionally, the Robinson court allowed evidence of post-manufacture standards as evidence of feasibility, indicating that state of the art does not mean custom of the industry.

Finally, Robinson notes that an entire industry might be making a defective product. If that is true, then “state of the art” cannot mean custom of the industry.

 

Cases:

The most instructive case, as noted above, Robinson v. G.G.C., Inc., 107 Nev. 135, 138, 808 P.2d 522, 524 (1991). The most instructive quotes are below:

 

The question before us now is when, in spite of an adequate warning, a manufacturer is still liable for a foreseeable misuse. When the defect in the product is the lack of a safety device, the misuse is often an accidental misuse. In these situations, a warning, although it adequately informs of the danger, is of no help to the consumer. Strict products liability law should not punish manufacturers for unanticipated injuries from reasonably safe products, but it should encourage manufacturers to take all measures to avoid accidents from product misuse. Therefore, we must require manufacturers to make their products as safe as commercial feasibility and the state of the art will allow.

Robinson v. G.G.C., Inc., 107 Nev. 135, 138, 808 P.2d 522, 524 (1991)

 

In finding that a whole industry may have been producing a defective product, the court stated, “the question is not whether anyone else was doing more, although that may be considered, but whether the evidence discloses that anything more could reasonably and economically be done.” Id. at 907 (quoting Hancock v. Paccar, Inc., 283 N.W.2d 25, 35 (Neb.1979)). The best way to determine if a defendant should have built a safer product is to let the jury hear all the evidence relating to the course of conduct of both the industry, and the particular manufacturer.

Robinson v. G.G.C., Inc., 107 Nev. 135, 142–43, 808 P.2d 522, 527 (1991)

 

Other courts more directly address the distinction between “state of the art” and “custom of the industry”.

 

Other Courts:

 

It is undisputed in the summary-judgment record that, in general, the design of the tanks, i.e., a steel “hemisphere” welded to each end of the cylindrical body, was the accepted method of manufacturing such tanks in 1971. However, there is a distinction between “custom in the industry” and “state of the art.” “Custom refers to what was being done in the industry; state of the art refers to what feasibly could have been done.” Chown v. USM Corp., 297 N.W.2d 218, 221 (Iowa 1980); see also Mercer v. Pittway Corp., 616 N.W.2d 602, 622 (Iowa 2000); Hughes v. Massey-Ferguson, Inc., 522 N.W.2d 294, 295 (Iowa 1994).

Falada v. Trinity Indus., Inc., 642 N.W.2d 247, 250 (Iowa 2002)

 

We state the facts very briefly because this appeal concerns instructions. The first issue relates to the state-of-the-art instructions. The trial was in November 1989. Then, as now, under Indiana law a defendant may assert a “state of the art” defense to a strict liability claim. Ind.Code § 33–1–1.5–4(b)(4). The statute does not define “state of the art” and there was, in 1989, some confusion among courts and commentators about the meaning of the term. See 1A L. Frumer & M. Friedman, Products Liability, § 2.26[8][b] at 2–1666 to 2–1670 (1991). Most considered it as signifying existing technological capability, but some related it to then-existing standards of the industry. In November 1989, Indiana had not expressly adopted either standard, although Indiana Pattern Jury Instruction 7.05 had recently cast its lot with the technological capability standard. Because the law was unsettled, the trial court opted not to define “state of the art,” although plaintiff offered an instruction substantially similar to, although not precisely the same as, the pattern instruction. The court left the fleshing-out of the concept to the arguments of counsel. A few months later, the concept of industry practice was expressly rejected in Montgomery Ward & Co. v. Gregg, 554 N.E.2d 1145, 1155 (Ind.App. 1st Dist.1990). The court there embraced the concept of technological advancement inherent both in the pattern instruction and the instruction offered by plaintiff here.

Phillips v. Cameron Tool Corp., 950 F.2d 488, 490 (7th Cir. 1991)

 

State-of-the-art “refers to the existing level of technological expertise and scientific knowledge relevant to a particular industry at the time a product is designed.” O’Brien v. Muskin Corp., 94 N.J. 169, 182, 463 A.2d 298 (1983). State-of-the-art or “the very safest product of that type which [an] industry could design at the time of manufacture” “is defined as a product for which there was no reasonable alternative design.” Dreier, Goldman & Katz, New Jersey Products Liability & Toxic Torts Law § 14:2 at 330 (Gann 1999).

Cavanaugh v. Skil Corp., 331 N.J. Super. 134, 164, 751 A.2d 564, 581 (App. Div. 1999), aff’d, 164 N.J. 1, 751 A.2d 518 (2000)

 

“State of the art” means the level of pertinent scientific and technical knowledge existing at the time. Frumer & Friedman, Products Liability s 6.05(15) (1978).

Wiska v. St. Stanislaus Soc. Club, Inc., 7 Mass. App. Ct. 813, 821, 390 N.E.2d 1133, 1138 (1979)

 

Plaintiff points out, correctly we believe, that a distinction exists between custom of the industry and state of the art. Custom refers to what was being done in the industry; state of the art refers to what feasibly could have been done.

Chown v. USM Corp., 297 N.W.2d 218, 221 (Iowa 1980)

 

While the jury may consider, as evidence of the state of the art, the fact that no manufacturer is doing that which it is claimed could be done, such evidence will not establish conclusively the state of the art. Obviously, the inaction of all the manufacturers in an area should not be the standard by which the state of the art should be determined. Whether the design represents the state of the art is still a question of fact to be determined by the jury.

Hancock v. Paccar, Inc., 204 Neb. 468, 479, 283 N.W.2d 25, 35 (1979)

 

State of the art includes all of the available knowledge on a subject at a given time, and this includes scientific, medical, engineering, and any other knowledge that may be available. State of the art includes the element of time: What is known and when was this knowledge available.

Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1164 (4th Cir.1986).

 

State of the art is not synonymous with industry standards.

 

Industry standards are the practices common to a given industry. They are often set forth in some type of code, such as a building code or electrical code, or they may be adopted by the trade organization of a given industry. State of the art is a higher standard because scientific knowledge expands much more rapidly than industry can assimilate the knowledge and adopt it as a standard.

ACandS, Inc. v. Asner, 344 Md. 155, 165, 686 A.2d 250, 254–55 (1996) (quoting Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1164 (4th Cir.1986)).

 

The “state-of-the-art” refers to the existing level of technological expertise and scientific knowledge relevant to a particular industry at the time a product is designed. Robb, “A Practical Approach to Use of State of the Art Evidence in Strict Products Liability Cases,” 77 Nw.U.L.Rev. 1, 4-5 & n. 15 (1977). Although customs of an industry may be relevant, Suter, 81 N.J. at 171-72, 406 A.2d 140, because those customs may lag behind technological development, they are not identical with the state-of-the-art. See Michalko, 91 N.J. at 397-98, 451 A.2d 179; Robb, supra, 77 Nw.U.L.Rev. at 4-5. A manufacturer *183 may have a duty to make products pursuant to a safer design even if the custom of the industry is not to use that alternative. Michalko, 91 N.J. at 397, 451 A.2d 179.

O’Brien v. Muskin Corp., 94 N.J. 169, 182–83, 463 A.2d 298, 305 (1983)

 

The majority of courts, however, have defined state-of-the-art evidence as the level of relevant scientific, technological and safety knowledge existing and reasonably feasible at the time of design. See, e.g., Carter v. Massey-Ferguson, Inc., 716 F.2d 344, 347 (5th Cir.1983) (“ ‘state of the art’ refers to the technological environment, that is, what can be done” [emphasis in original] ); Gosewisch v. American Honda Motor Co., 153 Ariz. 389, 394, 737 P.2d 365 (App.1985) (“state of the art refers to what feasibly could have been done”); Montgomery Ward & Co. v. Gregg, 554 N.E.2d 1145, 1155-56 (Ind.App.1990) (defining state of the art as technological advancement, not as industry custom or practice); Chown v. USM Corp., 297 N.W.2d 218, 222 (Iowa 1980) (defining state of the art as technological and practical feasibility); O’Brien v. Muskin Corp., 94 N.J. 169, 182, 463 A.2d 298 (1983) (defining state of the art as “existing level of technological expertise and scientific knowledge relevant to a particular industry at the time a product is designed”); Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 748 (Tex.1980) (“[state of the art] includes the scientific knowledge, economic feasibility, and the practicalities of implementation when the product was manufactured”); see also 2 American Law of Products Liability 3d (1996) § 30:50, p. 30-77 (“ ‘[s]tate of the art’ has been defined as the safety, technical, mechanical, and scientific knowledge in existence and reasonably feasible for use at the time of manufacture”).

Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 247, 694 A.2d 1319, 1346 (1997)

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