OPINION
WHITE, Justice.
In this Rule 23 case we are called upon to address whether our products liability statute, codified at Tennessee Code Annotated Section 29-28-101 to -108, provides for a risk-utility test in addition to the consumer expectation test for determining whether a product is unreasonably dangerous. For the reasons set forth below, we hold that our present statute provides for two tests: the consumer expectation test and the prudent manufacturer test. The latter requires risk-utility balancing in its application.
I. Facts
On September 3, 1982, the Memphis apartment building in which Erma Holman and her two minor sons, Frederick and Donnie Ray, were residing was destroyed by fire. A cigarette lighter, manufactured by the BIC Corporation, had been left in the apartment by a friend of Holman’s.
When Holman left to walk her oldest son, Donnie, to the bus stop, four-year old Frederick was left alone in the apartment. When Holman returned, the apartment was ablaze. Young Frederick sustained serious injuries, including incapacitating brain damage.
Ten years later, on September 3, 1992, Holman filed a lawsuit against BIC Corporation on behalf of her minor son, Frederick. In her complaint, she alleged that the source
of the fire,
the BIC cigarette lighter, was an “unreasonably dangerous” product within the meaning of Tennessee Code Annotated Section 29-28-102(8) because it was not child-resistant. Specifically, plaintiff alleged that “[d]efendant ... manufactured an unreasonably dangerous disposable cigarette lighter which was unreasonably dangerous at the time it left the control of the Defendant.” Additionally, plaintiff contended that defendant was liable because the fighter “would not be put on the market by a reasonably prudent manufacturer or seller assuming that [the manufacturer or seller] knew of its dangerous condition.”
BIC Corporation moved for summary judgment on the basis that the product was not unreasonably dangerous. Plaintiff countered with the affidavit of an engineer whose opinion was that the lighter could have been manufactured without significantly increasing the cost to include child-resistant features which would more likely than not have prevented the injuries.
The federal district court granted summary judgment to defendant. Plaintiff appealed to the Sixth Circuit Court of Appeals which has certified this question for our consideration:
whether Tenn.Code Ann. § 29-28-102(8), in addition to the “consumer expectation” test, provides for another separate and distinct test for determining whether a product is “unreasonably dangerous,” i.e., the “risk-utility” test.
II. Background of the Act
The Tennessee Products Liability Act provides that a manufacturer or seller may be liable for injuries caused by a product that is determined to be in a “defective condition or unreasonably dangerous at the time it loft the control of the manufacturer or seller.” Tenn.Code Ann. § 29-28-105(a) (1980 Repl.). In this case, plaintiff alleges that the BIC cigarette fighter was an unreasonably dangerous product.
The Act defines an unreasonably dangerous product as
a product [that] is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, or a product [that] because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller assuming that [the manufacturer or seller] knew of its dangerous condition.
Tenn.Code Ann. § 29-28-102(8)(1980 Repl.).
Unquestionably, the first clause of the definition establishes a “consumer expectation” test for determining whether a product is unreasonably dangerous. That test, defined generally as, whether the product’s condition poses a danger beyond that expected by an ordinary consumer with reasonable knowledge, has been employed by many states.
See e.g., Caterpillar Tractor v. Beck,
598 P.2d 871 (Alaska 1979);
Barker v. Lull Eng’g Co., Inc.,
20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 (1978)(one prong of test);
Ontai v. Straub Clinic and Hosp., Inc.,
66 Haw. 237, 659 P.2d 734 (1983);
Lester v. Magic Chef,
230 Kan. 643, 641 P.2d 353 (1982);
Rahmig v. Mosley Machinery Co.,
226 Neb. 423, 412 N.W.2d 56 (1987);
Woods v. Fruehauf Trailer Corp.,
765 P.2d 770 (Okla.1988). In a host of cases, decided prior to and after the passage of the Products Liability Act, Tennessee courts have used the standard.
See generally Gann, et al. v. International Harvester Co.,
712 S.W.2d 100, 105 (Tenn.1986);
Pemberton v. American Distilled Spirits Co.,
664 S.W.2d 690, 692 (Tenn.1984);
Reece v. Lowe’s of Boone, Inc.,
754 S.W.2d 67, 71 (Tenn.App.),
perm. to appeal denied,
(Tenn.1988). While many states are abandoning its approach,
or meshing it with
more sophisticated proof requirements, it has remained unchanged in our statute for nearly two decades.
See generally
William L. Prosser & W. Page Keeton,
The Law of Torts,
§ 99, at 669 (5th ed.1984); M. Stuart Madden,
Products Liability
§ 6.23 (2d ed.1994); Schwartz,
Forward: Understanding Products Liability,
67 Cal.L.Rev. 435 (1979); Keeton,
Products Liability Design Hazard and the Meaning of Defect,
10 Cumb.L.Rev. 293, 310 (1979).
It is also unquestionable that defendant in this ease would be entitled to summary judgment if the consumer expectation test is the only applicable standard for determining unreasonable dangerousness. An ordinary consumer would expect that a cigarette lighter, left in the hands of a young child, could cause danger and injury concomitant to that occurring in this case. The more difficult question is whether that conclusion ends the inquiry. Again, unquestionably, it does not.
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OPINION
WHITE, Justice.
In this Rule 23 case we are called upon to address whether our products liability statute, codified at Tennessee Code Annotated Section 29-28-101 to -108, provides for a risk-utility test in addition to the consumer expectation test for determining whether a product is unreasonably dangerous. For the reasons set forth below, we hold that our present statute provides for two tests: the consumer expectation test and the prudent manufacturer test. The latter requires risk-utility balancing in its application.
I. Facts
On September 3, 1982, the Memphis apartment building in which Erma Holman and her two minor sons, Frederick and Donnie Ray, were residing was destroyed by fire. A cigarette lighter, manufactured by the BIC Corporation, had been left in the apartment by a friend of Holman’s.
When Holman left to walk her oldest son, Donnie, to the bus stop, four-year old Frederick was left alone in the apartment. When Holman returned, the apartment was ablaze. Young Frederick sustained serious injuries, including incapacitating brain damage.
Ten years later, on September 3, 1992, Holman filed a lawsuit against BIC Corporation on behalf of her minor son, Frederick. In her complaint, she alleged that the source
of the fire,
the BIC cigarette lighter, was an “unreasonably dangerous” product within the meaning of Tennessee Code Annotated Section 29-28-102(8) because it was not child-resistant. Specifically, plaintiff alleged that “[d]efendant ... manufactured an unreasonably dangerous disposable cigarette lighter which was unreasonably dangerous at the time it left the control of the Defendant.” Additionally, plaintiff contended that defendant was liable because the fighter “would not be put on the market by a reasonably prudent manufacturer or seller assuming that [the manufacturer or seller] knew of its dangerous condition.”
BIC Corporation moved for summary judgment on the basis that the product was not unreasonably dangerous. Plaintiff countered with the affidavit of an engineer whose opinion was that the lighter could have been manufactured without significantly increasing the cost to include child-resistant features which would more likely than not have prevented the injuries.
The federal district court granted summary judgment to defendant. Plaintiff appealed to the Sixth Circuit Court of Appeals which has certified this question for our consideration:
whether Tenn.Code Ann. § 29-28-102(8), in addition to the “consumer expectation” test, provides for another separate and distinct test for determining whether a product is “unreasonably dangerous,” i.e., the “risk-utility” test.
II. Background of the Act
The Tennessee Products Liability Act provides that a manufacturer or seller may be liable for injuries caused by a product that is determined to be in a “defective condition or unreasonably dangerous at the time it loft the control of the manufacturer or seller.” Tenn.Code Ann. § 29-28-105(a) (1980 Repl.). In this case, plaintiff alleges that the BIC cigarette fighter was an unreasonably dangerous product.
The Act defines an unreasonably dangerous product as
a product [that] is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, or a product [that] because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller assuming that [the manufacturer or seller] knew of its dangerous condition.
Tenn.Code Ann. § 29-28-102(8)(1980 Repl.).
Unquestionably, the first clause of the definition establishes a “consumer expectation” test for determining whether a product is unreasonably dangerous. That test, defined generally as, whether the product’s condition poses a danger beyond that expected by an ordinary consumer with reasonable knowledge, has been employed by many states.
See e.g., Caterpillar Tractor v. Beck,
598 P.2d 871 (Alaska 1979);
Barker v. Lull Eng’g Co., Inc.,
20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 (1978)(one prong of test);
Ontai v. Straub Clinic and Hosp., Inc.,
66 Haw. 237, 659 P.2d 734 (1983);
Lester v. Magic Chef,
230 Kan. 643, 641 P.2d 353 (1982);
Rahmig v. Mosley Machinery Co.,
226 Neb. 423, 412 N.W.2d 56 (1987);
Woods v. Fruehauf Trailer Corp.,
765 P.2d 770 (Okla.1988). In a host of cases, decided prior to and after the passage of the Products Liability Act, Tennessee courts have used the standard.
See generally Gann, et al. v. International Harvester Co.,
712 S.W.2d 100, 105 (Tenn.1986);
Pemberton v. American Distilled Spirits Co.,
664 S.W.2d 690, 692 (Tenn.1984);
Reece v. Lowe’s of Boone, Inc.,
754 S.W.2d 67, 71 (Tenn.App.),
perm. to appeal denied,
(Tenn.1988). While many states are abandoning its approach,
or meshing it with
more sophisticated proof requirements, it has remained unchanged in our statute for nearly two decades.
See generally
William L. Prosser & W. Page Keeton,
The Law of Torts,
§ 99, at 669 (5th ed.1984); M. Stuart Madden,
Products Liability
§ 6.23 (2d ed.1994); Schwartz,
Forward: Understanding Products Liability,
67 Cal.L.Rev. 435 (1979); Keeton,
Products Liability Design Hazard and the Meaning of Defect,
10 Cumb.L.Rev. 293, 310 (1979).
It is also unquestionable that defendant in this ease would be entitled to summary judgment if the consumer expectation test is the only applicable standard for determining unreasonable dangerousness. An ordinary consumer would expect that a cigarette lighter, left in the hands of a young child, could cause danger and injury concomitant to that occurring in this case. The more difficult question is whether that conclusion ends the inquiry. Again, unquestionably, it does not.
In addition to the consumer expectation test clearly set forth in the first clause of the statutory definition, the second clause, joined disjunctively with the first, establishes a second test. That clause provides that a product is unreasonably dangerous if a reasonably prudent manufacturer or seller, aware of the product’s dangerous condition, would not put the product on the market. Tenn. Code Ann. § 29-28-102(8)(1980 Repl.). We must determine whether that test, which we will refer to as the “prudent manufacturer” test, is a separate, distinct test from the consumer expectation test found exclusive by the district court or the risk-utility test urged by the plaintiff.
A. Consumer Expectation Test v. Prudent Manufacturer Test
The consumer expectation test, clearly set forth in the first clause of the definition section, derives from the
Restatement (Second) of Torts,
Section 402A. Comment (i) to that section states that before a product is deemed unreasonably dangerous it must be “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Restatement (Second) of Torts, § 402A, comment i;
Vincer v. Esther Williams All-Aluminum,
69 Wis.2d 326, 230 N.W.2d 794, 798-99 (1975).
Under this test, a product is not unreasonably dangerous if the ordinary consumer would appreciate the condition of the product and the risk of injury-
By contrast, the prudent manufacturer test imputes knowledge
of the condition of the product to the manufacturer. The test is whether, given that knowledge, a prudent manufacturer would market the product.
Phillips v. Kimwood Machine Co.,
269 Or. 485, 525 P.2d 1033, 1036 (1974).
Some jurisdictions — notably Washington and Oregon — have, at times, concluded that the two approaches are really one, representing “two sides of the same coin.”
Estate of Ryder v. Kelly-Springfield Tire Co.,
91 Wash.2d 111, 587 P.2d 160, 164 (1978);
Phillips v. Kimwood Machine Co.,
269 Or. 485, 525 P.2d 1033, 1036 (1974). In explaining this conclusion these courts have suggested that “a manufacturer who would be negligent
in marketing a given product ..., would necessarily be marketing a product which fell below the reasonable expectations of consumers who purchase it.”
Phillips v. Kimwood Machine Co.,
525 P.2d at 1037.
Clearly, however, as the courts combining the tests have come to realize, the focus of the two tests is entirely different. The consumer expectation test is, by definition, buyer oriented; the prudent manufacturer test, seller oriented. Notwithstanding the difference in focus, these courts predict that the tests “should produce similar results.”
Estate of Ryder v. Kelly-Springfield Tire Co.,
587 P.2d at 164.
While this prediction may be accurate, we see distinct and important differences in the consumer expectation and the prudent manufacturer tests under our statute. First, the former requires the consumer to establish what an ordinary consumer purchasing the product would expect. The manufacturer or seller’s conduct, knowledge, or intention is irrelevant. What is determinative is what an ordinary purchaser would have expected. Obviously, this test can only be applied to products about which an ordinary consumer would have knowledge. By definition, it could be applied only to those products in which
“everyday experience
of the product’s users permits a conclusion. ...”
Soule v. General Motors Corp., 8
Cal.4th 548, 34 Cal.Rptr.2d 607, 617, 882 P.2d 298, 308 (1994)(emphasis in original). For example, ordinary consumers would have a basis for expectations about the safety of a can opener or coffee pot, but, perhaps, not about the safety of a fuel-injection engine or an air bag.
Alternatively, the prudent manufacturer test requires proof about the reasonableness of the manufacturer or seller’s decision to market a product assuming knowledge of its dangerous condition. What the buyer expects is irrelevant under this test. In contrast to the consumer expectation test, the prudent manufacturer test is more applicable to those circumstances in which an ordinary consumer would have no reasonable basis for expectations. Accordingly, expert testimony about the prudence of the decision to market would be essential.
The straight-forward, unambiguous language of our statute establishes two distinct tests for ascertaining whether a product is unreasonably dangerous: the consumer expectation test and the prudent manufacturer test. In addition to having completely different focuses, the two tests have different elements which require different types of proof. The two tests are neither mutually exclusive nor mutually inclusive. While the statute does not limit applicability of the tests, the prudent manufacturer test will often be the only appropriate means for establishing the unreasonable dangerousness of a complex product about which an ordinary consumer has no reasonable expectation. Likewise, it may form the sole basis for establishing liability for a product whose dangerousness is the result of a latent defect.
We decline to weave the two tests into one. As the Oregon courts noted after revising their previous combined approach:
[T]he distinction between the [two] tests is not merely academic. The result in some, perhaps most, product liability eases might be the same regardless of which test the jury applies; nonetheless, in some cases, the difference in the test can affect the outcome. A jury might well conclude that a product is not unreasonably dangerous under the cost/benefit calculus of an omniscient reasonable manufacturer but is still unsafe in a manner, or to an extent, not expected by an ordinary consumer.... The difference in perspective — “reasonable manufacturer” versus “ordinary consumer” — can, as a practical matter, make all the difference.
Burns v. General Motors Corp.,
133 Or.App. 555, 891 P.2d 1354, 1357-58 (1995).
B. Prudent Manufacturer Test v. Risk-Utility Test
Having concluded that our statute incorporates a test other than the consumer expectation test for proving the unreasonable dangerousness of a product, we turn now to the issue of the relationship, if any, between that test and the risk-utility test urged by plaintiff.
Our research has revealed that, in reality, what plaintiff refers to as the risk-utility test is more correctly an analysis which involves the balancing of numerous factors. Under the approach, the court balances the usefulness of the product against the magnitude of risk or danger likely to be caused by the product.
Prosser & Keeton on Torts
699 (P. Keeton ed 5th ed.1984).
In order to determine whether the second test in our statute, which we have called the prudent manufacturer test, anticipates a risk-utility analysis, we turn to the most commonly used description of both. Generally stated, the prudent manufacturer test imposes liability in circumstances in which a reasonably prudent manufacturer with knowledge of a product’s dangerousness would not place the product in the stream of commerce. As expanded by Dean Wade, the test has evolved into a consideration of various factors which must be weighed to determine whether the manufacturer was reasonably prudent. The factors include the usefulness and desirability of the product, the safety aspects of the product, the availability of a substitute product which would meet the same need, the manufacturer’s ability to eliminate the unsafe character, the user’s ability to avoid danger, the user’s awareness of the danger, and the feasibility of spreading the loss. Wade,
On the Nature of Strict Tort Liability for Products,
44 Miss.L.J. 825, 837-38 (1973). Thus, Dean Wade summarizes the test as follows:
“A
[product] is not duly safe if it is so likely to be harmful to person [or property] that a reasonable prudent manufacturer, who had actual knowledge of its harmful character, would not place it on the market.”
Id.
at 839-40.
In effect, the prudent manufacturer test, by definition, requires a risk-utility analysis. The determination of whether a product is unreasonably dangerous turns on whether, balancing all the relevant factors, a prudent manufacturer would market the product despite its dangerous condition. Naturally, a prudent manufacturer would consider usefulness, costs, seriousness and likelihood of potential harm, and the myriad of other factors often lumped into what plaintiff called a risk-utility test,
see Banks v. ICI Americas, Inc.,
264 Ga. 732, 450 S.E.2d 671, 673 (1994)(citing Preliminary Draft No. 1 (April 20, 1995) Restatement (Third) of Torts: Products Liability, § 101, Reporter’s Notes to comment g). These factors mirror those designated by Deans Wade and Keeton as appropriate for consideration under the prudent manufacturer test.
Defendant’s argument that the Tennessee General Assembly could not have intended to include the risk-utility test, (or what we have determined to be a risk-utility analysis), in the 1978 enactment of the Products Liability Act since the test originated that same year
is not persuasive. We must interpret the plain language of the legislation,
Mercy v. Olsen,
672 S.W.2d 196 (Tenn.1984), and we must give effect to “every word, phrase, clause and sentence....”
Tidwell v. Collins,
522 S.W.2d 674, 677 (Tenn.1975). Clearly, the legislation includes a second test to determine whether a product is unreasonably dangerous. Whether that test—whatever name it is ultimately given— is the same as an approach originating elsewhere is of no consequence.
In an aberrant move, California adopted a hybrid consumer expectation risk-utility test that shifts the burden of proof to defendant to establish “that on balance the benefits of the challenged design outweigh the risk of danger inherent in such design.”
Barker v. Lull Engineering Co., Inc.,
143 Cal.Rptr. 225, 573 P.2d at 452. Setting aside this aberration, it is obvious that the prudent manufacturer test set out in our statute and the analysis which plaintiff refers to as the risk-utility test are substantially the same.
Stated more precisely, we hold that the prudent manufacturer test set forth in the Tennessee Products Liability Act requires a risk-utility balancing of factors, including those factors identified as part of the Wade-Keeton prudent manufacturer test.
The test under our statute does not include a shifting of the burden of proof to defendant. Rather, the burden remains on plaintiff in a products liability action to establish injury as a result of an unreasonably dangerous product. Plaintiff may meet this burden either by establishing that the product was dangerous beyond that contemplated by an ordinary consumer (consumer expectation test) or by establishing that a reasonably prudent manufacturer, assumed to know the product’s dangerous condition, would not have marketed the product (prudent manufacturer test employing risk-benefit analysis).
Our statute does not limit the application of either test to only certain types of actions. Nonetheless, the consumer expectation test will be inapplicable, by definition, to certain products about which an ordinary consumer can have no expectation. Despite the potentially overlapping nature of the tests, plaintiff here relied only on the second test, which we have defined as requiring consideration of numerous factors. Our statute clearly authorizes plaintiff to attempt to establish the unreasonable dangerousness of a product by employing a prudent manufacturer test which includes a risk-utility balancing approach.
The Clerk will transmit this opinion in accordance with Rule 23, Section 8 of the Rules of the Supreme Court. The costs in this Court will be taxed equally between plaintiff and defendant.
BIRCH, C.J., and DROWOTA, ANDERSON and REID, JJ., concur.