The Citadel Reburied Restatement of the Law Third Torts: Products Liability

By Patterson, Donald | Defense Counsel Journal, April 1996 | Go to article overview

The Citadel Reburied Restatement of the Law Third Torts: Products Liability


Patterson, Donald, Defense Counsel Journal


IN MAY 1995, the American Law Institute adopted Sections 1 through 8 and Section 11 of Tentative Draft No. 2 of the Restatement of the Law Third Torts: Products Liability, subject, according to ALI President Charles Alan Wright, "to editorial improvements, and to an opportunity to revisit them at a later date."(1) Of the portions of the new restatement adopted, Sections 2(a), 2(b) and 2(c), as well as Section 3, are the heart of an attempt to change products liability law, and they contain troublesome provisions. The document may now be cited with authority; indeed, a previous draft was cited as authority.(2)

Instead of two sections - 402A and 402B - as in the current Restatement (Second) of Torts, the reporters for the Third Restatement envision Sections 1 through 19 with components that have been isolated for separate treatment by appellate courts applying Sections 402A and 402B. The reporters - Professors James A. Henderson Jr. of Cornell Law School and Aaron D. Twerski of Brooklyn Law School - contend in their explanatory notes that the end result of their draftsmanship is a synthesis of the prevailing law. They are to be commended for a monumental effort of scholarship, organization and, above all else, patience and willingness to accept suggestions from diverse groups of lawyers, judges and academicians interested in the final product.

The new restatement follows the familiar form. Each section commences with a black-letter statement of substantive law, followed by a "Comment," which incorporates "Illustrations," and concludes with the "Reporters' Note," which explains each of the comments separately, with exhaustive citations of authority. Most jurisdictions have departed from the concept of defect as measured by Comments g and i of Section 402A, and these comments are not included in the new restatement.

This article will attempt to identify some of the major changes, the possible pitfalls, and the advantages of the new provisions compared to what we now understand the law to be in the various jurisdictions. But it is not possible to cover all of them.

SECTION 2(A) - MANUFACTURING

DEFECT

Section 1 simply spells out in broad terms the conditions under which a manufacturer may be held liable. The basic concept is "defect" which may take the form of a manufacturing defect, a defect in design, or inadequate instructions or warnings. Section 1 also states the limitations on those suppliers of products that are to be held strictly liable for defective products.

For purposes of determining liability under Section I, the black letter of Section 2(a) provides as follows:

For purposes of determining liability under [sections] 1: (a) a product 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;...

This is little, if any, different from existing law. The two main problems encountered in its application are, first, whether a causal connection existed between the manufacturing defect and a loss,(3) and second, whether the defect that caused the loss existed at the time the product left the hands of the target seller. This appears to be no different from existing law.(4) The defect may have occurred as the result of final assembly by a downstream seller or a container may have developed a defect while it was sitting on the shelf of a retailer. Liability still requires proof that the defect existed at the time the product left the possession and control of the target defendant.

SECTION 2(B) - DESIGN DEFECT

The black letter of Section 2(b) provides:

(b) a product 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, add the omission of the alternative design renders the product not reasonably safe;. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Citadel Reburied Restatement of the Law Third Torts: Products Liability
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.