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
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;. …