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Reaffirming strict liability for product design cases: the battle over (section) 2 (b) of the latest restatement - which gives manufacturers a free pass from liability unless plaintiffs prove a reasonable alternative design - is far from over. It's time to return to the bedrock principles of strict liability in design defect cases.

Article Excerpt
Forty-three years ago, the American Law Institute (ALI) launched a revolution in products liability law when it introduced the Restatement (Second) of Torts [section]402A. Before this, courts had struggled to find a rationale for liability for products-related injuries. Many cases, brought under either negligence or warranty theories, failed due to lack of privity or evidence of what happened in the design and/or manufacture of the product, or because of notice and disclaimer defenses.

Section 402A provides that product sellers are strictly liable for injuries from unreasonably dangerous products even if a seller exercised all possible care in the preparation and sale of its product. (1) The rule was so self-evident that it quickly became the law of the land.

Under [section]402A, product sellers are liable for harms caused by any product that is "in a defective condition unreasonably dangerous" to the consumer and that is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer." (2) A knife, for example, is not unreasonably dangerous because it is capable of cutting--it would be quite useless if it wasn't--but if the knife's handle is made of a brittle material that breaks and injures the consumer, the seller would be liable. In the lexicon of products liability law, this became known as the consumer-expectation test.

But not long after its adoption, [section]402A's principle of strict liability for product defects became muddled by proposals for a risk-benefit "test" that would evaluate product defects under a negligence-type analysis, balancing the risk of injury against the benefit of the product. In many respects, the risk-benefit test stood products liability law on its head. It took what was an affirmative defense under [section]402A for "unavoidably unsafe" products and made it the basis for a determination of liability. Products would be presumptively safe unless plaintiffs proved that their inherent risks outweighed their benefits.

The ensuing debate over the proper rule for evaluating liability for product defects has generated much confusion. Part of the confusion comes from the conceptual difference between strict liability and the negligence-based risk-benefit theory. Further confusion results from the fact that risk-benefit is used to describe both a test of defectiveness and an affirmative defense. Many courts do not seem to appreciate these differences or choose to ignore them, and the resulting decisions are conflicting, inconsistent, and irreconcilable. (3)

Today, products liability law is a hodgepodge of rules, especially in design defect cases, where courts apply standards ranging from the consumer-expectation test to the risk-benefit test, with various hybrid combinations in between. Adding to the confusion, 11 years ago, the ALI did an about-face when it published the Restatement (Third) of Torts: Products Liability. Under the new restatement, [section]402A and the consumer-expectation test would be abolished and replaced with a risk-benefit test in which one element--the existence of a reasonable alternative design--is elevated to an absolute requirement.

In unintended ways, the harsh proposals of the new restatement have brought light to bear on the abysmal state of the law. But courts have so far largely rejected the core provisions of the new restatement, and it is not too late to bring reason and fairness back to products liability law. Consumer lawyers have an opportunity to direct a new look at products liability law, one that can reaffirm the social policies that underlie [section]402A.

The assault on strict liability

Modern products liability law began with the adoption of the Restatement (Second) of Torts [section]402A in 1965. (4) Section 402A was based on an elegantly simple rationale: In marketing products, sellers bear a special responsibility to...

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