Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 9. Liability without Fault?
(a) contains a manufacturing defect when the product departs from its intended
design even though all possible care was exercised in the preparation and marketing
of the product;
(b) is defective in design when the foreseeable risks of harm posed by the product
could have been reduced or avoided by the adoption of a reasonable alternative
design by the seller or other distributor, or a predecessor in the commercial chain of
distribution, and the omission of the alternative design renders the product not
reasonably safe;
(c) is defective because of inadequate instructions or warnings when the foreseeable
risks of harm posed by the product could have been reduced or avoided by the
provision of reasonable instructions or warnings by the seller or other distributor,
or a predecessor in the commercial chain of distribution, and the omission of the
instructions or warnings renders the product not reasonably safe.
Products Restatement § 2, at 14.
The commentators give the following explanation for the analytical framework adopted in the
Products Restatement:
In contrast to manufacturing defects, design defects and defects based on inadequate
instructions or warnings are predicated on a different concept of responsibility. In
the first place, such defects cannot be determined by reference to the manufacturer’s
own design or marketing standards because those standards are the very ones that
the plaintiffs attack as unreasonable. Some sort of independent assessment of
advantages and disadvantages, to which some attach the label “risk-utility
balancing,” is necessary. Products are not generically defective merely because
they are dangerous. Many product-related accident costs can be eliminated only by
excessively sacrificing product features that make products useful and desirable.
Thus, the various trade-offs need to be considered in determining whether accident
costs are more fairly and efficiently borne by accident victims, on the one hand, or,
on the other hand, by consumers generally through the mechanism of higher product
prices attributable to liability costs imposed by the courts on product sellers.
Products Restatement § 2 cmt. a, at 15-16. [T]he Products Restatement has essentially “dropped
the consumer expectation test traditionally used in the strict liability analysis and adopted a riskutility
analysis traditionally found in the negligence standard.” [citation omitted]
. . .
In summary, we now adopt Restatement (Third) of Torts: Product Liability sections 1 and
2 for product defect cases. Under these sections, a plaintiff seeking to recover damages on the
basis of a design defect must prove “the foreseeable risks of harm posed by the product could
have been reduced or avoided by the adoption of a reasonable alternative design by the seller or
other distributor, or a predecessor in the commercial chain of distribution, and the omission of the
alternative design renders the product not reasonably safe.” . . .
564