Academic journal article The University of Memphis Law Review

A Call for an Accurate Restatement (Third) of Torts: Design Defect

Academic journal article The University of Memphis Law Review

A Call for an Accurate Restatement (Third) of Torts: Design Defect

Article excerpt


Section 2(b) of the Restatement (Third) of Torts: Products Liability provides:

§ 2. Categories of Product Defect

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:

(b) 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, and the omission of the alternative design renders the product not reasonably safe.1

Section 2(b) is flawed in three interrelated ways. First, it does not reflect the history of products liability. Second, it leads to higher costs of litigation and other serious problems with implementation. Third, it has not been adopted by a majority of the courts since 1994. For these reasons and others there is a need for a new Restatement of Torts) for Design Defect that would accurately reflect the law and present a case-based test for design defect.

Part II will explain the history of products liability law. Part III will critique the Restatement (Third) of Torts section 2(b),3 and Part IV will examine the key cases over the past eight years that have examined section 2(b).


The Restatement (Third) of Torts argues that negligence is the basis of the new test for design defect.4 It is arguable from a historical perspective, however, that strict liability in products and all civil liability has its foundation in absolute liability. This is made clear by the case of Anonymous.5 In that 1466 case, Judge Bryant said:

If a man does a thing he is bound to do it in such a manner that by his deeds no injury or damage is inflicted upon others. Similarly, if a man commits an assault upon me and I cannot avoid him if he wants to beat me, and I lift my stick in self defense in order to prevent him and there is a man in back of me and I injure him in lifting my stick, in that case he would have an action against him, although my lifting the stick was lawful to defend myself and I injured him without intent.6

In the context of products cases, negligence did not emerge until 1850.7

One of the earliest stumbling blocks to liability in civil suits was the concept of privity. Simply stated, privity means that liability will extend only to the immediate parties to the contract. It will not extend to third parties. The first case to recognize privity was Winterbottom v. Wright.8 In that case, the defendant Wright, under a contract with the postmaster general, agreed to maintain a stagecoach for the delivery of mail. The coach subsequently broke down as a result of the defendant's failure to perform the contract with the postmaster general. Winterbottom, the driver of the coach, was thrown from his seat and permanently injured. In rejecting the suit by the driver, the court said:

There is no privity of contract between these parties: and if the plaintiff can sue, every passenger, or even any person passing along the road, who is injured by the upsetting of the coach, might bring a similar action. Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue.9

In order to accomplish just results, the courts over the subsequent sixty years developed numerous exceptions to privity. Perhaps the clearest examples are cases involving eminently dangerous products. In Thomas v. Winchester,10 a dealer in drugs sold to a druggist a jar of belladonna, a deadly poison, and labeled it extract of dandelion.11 The druggist sold it to a patient and the patient suffered serious injury. Although there was no privity, the court allowed the suit to go forward because the product was eminently dangerous. …

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