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58326.4 Claims and defenses in product liability cases adequate warnings or instructions to the users of the product. Of greatest concern for AV litigation are design defect and failure to warn claims. A plaintiff asserting a design defect would show the existence of a “defect” under the applicable state law test. Courts in the U.S. apply one of the following tests: ‡ A test based on what an ordinary consumer would expect from a product, typically used where the potential for injury is clear to consumers from the nature of the product. ‡ The risk-utility balancing test, where the plaintiff contends that the risks from a design outweigh the benefits to the consumer or public from a design. ‡ The product manufacturer test, which asks whether a reasonably prudent manufacturer or seller, aware of the product’s dangerous condition, would not have put the product on the market if it had been aware of the product’s condition. ‡ A combination test, which may shift the burden of proof to the manufacturer to show a lack of defect in certain situations. ‡ The ultimate issue approach, in which the jury has the discretion to determine whether a design is defective [31]. Frequently, a plaintiff asserting a design defect will use expert testimony to explain why the defendant’s design is defective and will attempt to prove that an alternative design could have prevented the accident. In addition to relying on design defects, a plaintiff may also assert a strict liability claim based on a “failure to warn” theory. Under this theory, the plaintiff could contend that an AV was defective because the defendant failed to provide adequate warnings or instructions about the vehicle. The plaintiff would need to prove that the warnings did not adequately reduce risks associated with the product or that the instructions were inadequate to tell the user how to use the product. 26.4.2 Negligence claims As an alternative claim, product liability plaintiffs often include a negligence claim in their complaints. The concept of “negligence” refers to careless conduct that falls below the standard of conduct to which a hypothetical “reasonable man” would adhere. As with strict liability, a plaintiff can assert a negligence claim based on the design of the product, the way in which the product was manufactured, or the failure to give adequate warnings or instructions. Negligence is a harder claim for a plaintiff than strict liability, because the plaintiff must show some degree of fault on the part of the defendant. In order to prevail in a negligence claim, the plaintiff must prove: ‡ The defendant owed a duty of care to provide a reasonably safe product in terms of design or to warn of dangerous defects – meeting a standard of conduct to protect others against unreasonable risk,