Academic journal article The Review of Litigation

The Bulk Supplier, Sophisticated User, and Learned Intermediary Doctrines since the Adoption of the Restatement (Third) of Torts

Academic journal article The Review of Litigation

The Bulk Supplier, Sophisticated User, and Learned Intermediary Doctrines since the Adoption of the Restatement (Third) of Torts

Article excerpt


The approaching tenth anniversary of the Restatement (Third) of Torts: Products Liability warrants reflection on its impact on developments in case law. Due to the considerable breadth of the Third Restatement, which embraces the entire field of products liability law, this article will narrow its focus to the Third Restatements effect on three interrelated, yet discrete, doctrines: the bulk supplier doctrine, the sophisticated user doctrine, and the learned intermediary doctrine.

This article will first discuss the general evolution of products liability law as it relates to the development of the Restatements of Torts. It will then explore the development of the Third Restatement, followed by a broad, individualized discussion of its impact on the bulk supplier, sophisticated user, and learned intermediary doctrines. Finally, the article will delve into each doctrine separately and look at the impact the Third Restatement has had on each doctrine.


In general, products liability law determines the responsibility of designers, producers, or suppliers of products that cause harm to others. The purpose of this body of law is to protect consumers from harm caused by unreasonable risks associated with manufactured or processed products. The theory underlying products liability law is to distribute liabilities and burdens to parties who are most able to control the potential harm a product may inflict.1

Originally, products liability laws were either nonexistent or minimally restrictive. Years ago, there were comparatively fewer products that a regular person used from day to day. Those products were generally so simplistic in nature that the average person could understand their intricacies and potential dangers, as well as ways in which to minimize or protect themselves from those dangers. Accordingly, the traditional thinking was that because society was well aware of the dangers inherent in the relatively limited number of products that people came in contact with, there was no need for laws imposing liability on manufacturers or suppliers of products for harm caused by those products.

This traditional thinking slowly evolved and led to the development of products liability laws, either based on already established contract law theories or on tort law theories.2 One reason for the development of products liability law is that products available to the average person grew more numerous and complex.3 The typical person today interacts with innumerable products of such a complex nature that he may not have the ability to either know of or effectively protect himself from dangers inherent in the products. Additionally, a wide variety of complex products must be used or consumed in order for an average person to properly function within modern society.

Just as the products used by society have evolved with increasingly greater complexity, so too has the law related to those products. Modern products liability theory suggests that manufacturers and suppliers of products are in a far better position than today's average person to identify potential risks, determine acceptable levels for those risks, and ultimately confine the identified risks to those levels.4 Product manufacturers and suppliers are also thought to be in a better position to absorb costs associated with product risks. The theory that the costs of risks are most fairly placed on product makers and sellers stems from the idea that they can incorporate such costs into their overall cost of doing business. This notion of cost-spreading or risk-spreading ensures that manufacturers and suppliers '"pay their way' in the society from which they derive their profits."

The Restatement (Third) of Torts: Products Liability, like all other Restatements, is a publication drafted by the American Law Institute, or "ALL" ALI, founded in 1923, is a private body of judges, practicing attorneys, and legal scholars who work together to restate various fields of law in an effort to bring greater coherence, reason, and consistency to state common law. …

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