Products Liability in a Nutshell by David Owen

Author:David Owen
Language: eng
Format: epub
ISBN: 9781634592123
Publisher: West Academic
Published: 2014-01-15T00:00:00+00:00

§ 8.8 THE THIRD RESTATEMENT

Products Liability Restatement § 1 provides that one who sells “a defective product is subject to liability for harm to persons or property caused by the defect.” Section 2(b) explains that a product is “defective in design” if:

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.

Paraphrased, § 2(b) says:

A product is defective in design if the seller failed to reduce the foreseeable risk that harmed the plaintiff by adopting a reasonable alternative design, the omission of which renders the product not reasonably safe.

Risk-Utility

By requiring that an alternative design be “reasonable,” and basing a manufacturer’s liability on its failure to adopt such an alternative design only if its omission renders the product “not reasonably safe,” the Third Restatement rejects absolute safety in favor of optimality: “Society does not benefit from 270

products that are excessively safe … any more than it benefits from products that are too risky. Society benefits most when the right, or optimal, amount of product safety is achieved.” Cmt. a. The risk-utility balance prescribed in § 2(b) for design defectiveness determinations ordinarily resolves into a negligence-style evaluation of the foreseeable costs and benefits of the manufacturer’s decision to forego an alternative design:

Subsection (b) adopts a reasonableness (“risk-utility balancing”) test as the standard for judging the defectiveness of product designs. More specifically, the test is whether a reasonable alternative design would, at reasonable cost, have reduced the foreseeable risks of harm posed by the product and, if so, whether [its] omission … rendered the product not reasonably safe.

Cmt. d. The Third Restatement’s “reasonable alternative design” requirement “is based on the commonsense notion that liability for harm caused by product designs should attach only when harm is reasonably preventable.” In making the relevant risk-utility assessments, “[a] broad range of factors may be [balanced] in determining whether an alternative design is reasonable and whether its omission renders a product not reasonably safe,” including such factors as the foreseeable risks of harm, consumer expectations, usefulness, costs, aesthetics, longevity, responsibility for the product’s maintenance, marketability, and other advantages 271

and disadvantages of both the chosen and alternative designs. Cmt. f.

A judge or jury must evaluate these factors with respect to both the accident product as designed and the alternative design feature put forward by the plaintiff. A product’s design is “not reasonably safe,” and hence is “defective,” if a comparison between the accident product without the plaintiff’s proposed safety feature and the alternative product with the proposed safety feature demonstrates that the balance of costs and benefits of the alternative design is better than the balance of these same factors in the accident product. And the converse is also true: if the balance of competing design considerations in the accident product without the proposed safety feature was as

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