Restatement Third, Torts: Products Liability: What Hath the ALI Wrought?

By Henderson, James A., Jr.; Patterson, Donald et al. | Defense Counsel Journal, October 1997 | Go to article overview

Restatement Third, Torts: Products Liability: What Hath the ALI Wrought?


Henderson, James A., Jr., Patterson, Donald, Kaplan, Harvey L., Birnbaum, Sheila L., Defense Counsel Journal


In May 1997, the American Law Institute approved the Restatement Third, Torts: Products Liability. This article provides the black-letter text of the new restatement, based on the Proposed Final Draft (April 1, 1997), along with an introduction by James A. Henderson Jr., one of the reporters, and comments on the sections by Donald Patterson, Harvey L. Kaplan and Sheila L. Birnbaum. Initials are used to indicate which author comments on which section.

I RECALL a windy, stormy day last November at an oceanside resort near Jacksonville, Florida, when I sat down in the nearly deserted lobby of the hotel to try my hand at rearranging the 20-odd sections into chapters and topics that would replace the jumble that had emerged as the Restatement of the Law of Torts (Third): Products Liability over the four-plus years I had been working on the project. Nearly everyone else who had attended that Florida meeting of the Advisers on the Restatement project had left early for home once it became clear that the gathering storm was not going to blow over. I decided to stick with travel plans made earlier, when better weather had been expected.

What came out of that day of musings is an organizational structure for the new Restatement with which Prof. Twerski and I, as reporters, are quite pleased.

Heart of the matter

Chapter 1, the centerpiece of the project, deals with liability based on product defects at the time of sale. Topic 1 of that chapter, encompassing Sections 1 through 4, covers products generally; Topic 2, which includes Sections 5 through 8, covers special products and product markets, including prescription drugs and medical devices.

Chapter 2, Sections 9 through 11, deals with bases of liability other than defects at time of sale-for example, time-of-sale misrepresentations and post-sale duties to warn and recall.

Chapter 3, Sections 12 through 14, deals with the liability of successors and apparent manufacturers.

Chapter 4, Sections 15 through 18, contains provisions of general applicability, such as causation and affirmative defenses. Definitions appear at the end of Chapter 4 in Sections 19 through 21.

As reporters, we often have been asked why certain topics are not included at allpunitive damages, for example-and why other topics-causation and plaintiff's fault, for example-are included only in the sense that the relevant sections make general reference to applicable local law. Two major criteria combined to determine the boundaries of the project. First, a subject is not included unless it presents unique problems in the context of products liability. Second, a subject is not treated determinatively if it is likely to be treated elsewhere in the near future, including in subsequent projects carried out under the auspices of the Restatement of the Law of Torts (Third). Thus, because causation and plaintiff's fault are to be included in subsequent segments of the third Restatement project, this Restatement of products liability defers to local law on these subjects.

Most important sections

By far the two most important sections of this Restatement are Sections 1 and 2 setting forth the basic rules holding commercial product sellers liable for harm caused by defects at time of sale. And by far the most controversial single provision is Subsection 2(b), which deals with liability for harm caused by defective product designs. The controversy surrounding 2(b) arises from its requirement that the plaintiff in most design cases show that a safer, reasonable alternative design was available at the time of sale, and that failure to adopt the safer alternative rendered the product design not reasonably safe.

Section 2(b) adopts the risk-utility test traditionally associated with the negligence standard. The overwhelming majority of courts have opted for risk-utility balancing to determine whether a product is defectively designed. Many courts and commentators have recognized that the risk-utility test originates in negligence, although some courts have noted subtle differences between design-related risk-utility balancing under negligence, as opposed to strict products liability doctrine, and the new Restatement recognizes these nuances.

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