In 1965, the American Law Institute published the Restatement of Torts (Second). This document contained § 402A, which articulated the concept of strict liability in tort for product defects. Most states in the United States adopted § 402A and incorporated some version into their own law. Over the years, product liability law and § 402A were expanded and interpreted thousands of times. As a result of these developments, many persons came to believe that the present form of §402A had become outdated. Furthermore, some literal and conceptual inconsistencies and confusion had developed in product liability law in general and in the application of § 402A in particular.
Accordingly, the American Law Institute (ALI) decided to undertake a revision of the sections of the Restatement of Torts (Second) dealing with product liability. The project was completed in May 1997 when the ALI members approved the new Restatement of the Law, Third, Torts: Products Liability (referred to as "Restatement").
History of Project
The process of developing this new Restatement began in 1992. Professors Aaron Twerski and James Henderson, both with distinguished careers in teaching and writing about the law of product liability, were appointed the Reporters of the new Restatement. Furthermore, to assure broad-based input, "liaison groups" were formed to provide a formal mechanism for communicating the comments of groups outside the ALI who had a special interest in the terms of the Restatement. In addition, the Reporters received comments and suggestions through the traditional channels of the ALI Members Consultative Group, Advisors, and Council.
In early 1993, the Reporters circulated Preliminary Draft No. 1, which included the first group of "black-letter" sections, plus comments and "reporters' notes," on various aspects of the law related to product liability. Various meetings and revisions occurred and finally Council Draft No. 1A was approved by the ALI Council and became Tentative Draft No. 1 in April of 1994. This Tentative Draft was distributed to the full ALI membership and debated at the ALI annual meeting in May, 1994. While the specific provisions of the Draft were not submitted for approval at that time, the members debated the structure and approach taken by the Reporters, and ultimately took a vote which indicated that a majority of the membership approved the overall direction of the project.
Tentative Draft No. 1 was substantially amended and became Tentative Draft No. 2 in early 1995. This document was debated at the May 1995 ALI meeting and key sections concerning the basic approach were approved by the members. Additional sections and revisions to earlier sections were published in Tentative Draft No. 3 in early 1996 and most of these sections were approved at the May 1996 meeting.
Finally, Tentative Draft Nos. 2 and 3 were combined and revised in accordance with various comments and direction from the ALI members and various advisory groups in a document called Proposed Final Draft issued in April 1997. This draft was voted on and approved with revisions in May 1997.
Although the Final Draft of the Restatement was approved, the Reporters made minor revisions to the "black-letter" text, Comments and Reporter's Notes to reflect the votes and comments at the May meeting. The final version of this document was published on May 6, 1998 in both hardbound and soft-cover editions. Copies can be ordered from the American Law Institute, Customer Service Department, 4025 Chestnut Street, Philadelphia, PA 19104-3099 (tel: 1-800-CLE-NEWS, ext. 7000) (fax: 215-243-1664) (online: http://www.ali.org).
Summary of the Restatement
The Restatement contains twenty-one sections of law divided into 4 chapters: Chapter 1 (Sections 1-8) deals with liability for product defects at the time of sale; Chapter 2 (Sections 9-11) deals with liability for defects not existing at the time of sale; Chapter 3 (Sections 12-14) covers liability of successors and apparent manufacturers; and Chapter 4 (Sections 15-21) deals with causation, affirmative defenses and definitions.
Chapter 1
Section 1 states the basic premise that a commercial seller or distributor is liable for harm to persons or property caused by defects in its products. Section 2 then provides definitions and commentary for determining whether there are defects in manufacturing, design, and warnings and instructions.
Section 2(a) provides that a manufacturer is subject to liability for manufacturing defects if ". . . the product departs from its intended design ...." It contains no requirement that the plaintiff prove the departure rendered the product "unreasonably dangerous."
By contrast, § 2(b) states that a product is defectively designed if the foreseeable risks ". . . could have been reduced or avoided by the adoption of a reasonable alternative design . . . and the omission of the alternative design renders the product not reasonably safe." In other words, the plaintiff may not recover simply by criticizing the design of the subject product; the plaintiff must also prove that a feasible alternative design would have prevented the accident.
In Comment d to § 2, which addresses § 2(b) liability for defective design, the Reporters adopt a risk-utility balancing test that requires a comparison between a proposed alternative design and the product design that caused the injury, undertaken from the viewpoint of a reasonable person. However, Comment f to § 2 makes it clear that this alternative design must be practical and technologically feasible, although the plaintiffs need not present a prototype to the jury. The alternative design must also be evaluated with respect to overall safety, not only its safety in the circumstances of the plaintiff's accident. The comments further provide that the alternative design does not necessarily have to be commercially available so long as there is expert testimony that it could reasonably have been adopted at the time the subject product was sold.
A possible exception to the requirement that the plaintiff prove a feasible alternative design is found in comment e to § 2, which provides that a court may permit liability even in the absence of an alternative where a product has such extreme danger and such negligible utility that no reasonable person who understood the risks would use the product.
The Reporters have stated that the black letter law and comments which adopt the risk-utility approach are supported by "very substantial authority." Thus, they have sought in this section not to create new law but to enunciate a clearer description of what they believe is occurring in most courts.
Comment g to § 2 makes it clear that "consumer expectations" are no longer an independent standard for judging the defectiveness of product designs, although they remain an important factor to consider in determining whether an alternative design should have been adopted. In addition, the Reporters list a number of factors in Comment f that are relevant in determining whether the omission of a reasonable alternative design renders a product not reasonably safe, including the magnitude of foreseeable risks of harm, the effects of the alternative design on cost and product function, marketability and product longevity.
Section 2(c) deals with warnings and instructions, and runs essentially parallel to § 2(b). It states that there is a defect in warnings and instructions if the foreseeable risks ". . . could have been reduced or avoided by the provision of reasonable instructions or warnings . . . and the omission of the instructions or warnings renders the product not reasonably safe."
Comment i to § 2 points out some of the factors that should be considered in determining whether an alternative warning should have been used, including the likelihood of the risk and the importance of not providing so many warnings that the consumer will ignore them. In addition, Comment j states that a seller will not be liable for failure to warn of an "obvious" risk of harm. On the other hand, the "obviousness" of a design or manufacturing defect will not shield the manufacturer from liability for that defect.
The remainder of Chapter 1 comprises a section concerning the use of circumstantial evidence to support an inference of product defect (res ipsa loquitur); a section that says that noncompliance with a product safety statute or regulation can be the basis of a finding of defect if the noncompliance caused the injury or damage; a section dealing with the liability of a manufacturer of components, raw materials and incomplete products; and sections on the liability of manufacturers of prescription drugs and medical devices, food products, and used products. These sections are generally consistent with current law in the US and, in some cases, are clarifications of current law.
Chapter 2
This chapter contains sections concerning defects occurring at some time other than sale - either before or after sale. Section 9 sets forth the law concerning misrepresentations that occur in connection with the sale of a product. Sections 10 and 11 deal with liability based on a seller or distributor's liability for harm caused by a post-sale failure to warn or failure to recall a product.
Sections 10 and 11 are noteworthy in that they establish a post-sale duty that has not been accepted or even decided by a majority of states in the US. However, the Reporters and the membership felt that there were enough decisions in various jurisdictions accepting a post-sale duty, and that this duty contributes to product safety and is consistent with government regulations which encourage manufacturers to identify and deal with post-sale problems.
Chapter 3
This chapter deals with liability of business entities that are successors to the manufacturer or that are apparent manufacturers (e.g., a product seller whose name is on the product but whose product is manufactured by someone else). Sections 12 and 13 deal with liability of a successor for the predecessor's products and a successor's liability for failing to issue a post-sale warning concerning hazards that it learns of in the predecessor's product. These sections are generally consistent with existing law or with the new post-sale section in this Restatement.
Section 14 says that an apparent manufacturer is subject to the same liability as though it were the product manufacturer. However, in practice, an apparent manufacturer will not be liable if the actual manufacturer protects the apparent manufacturer from liability through a contractual agreement or insurance coverage.
Chapter 4
This chapter contains sections on causation, affirmative defenses and definitions. Section 15 says that causation, one of the required elements of establishing liability, is to be determined by the applicable law of the place of the litigation. The possible defenses of product misuse, alteration and modification are discussed in the Comments to this section.
Section 16 deals with crashworthiness or enhanced-injury liability. This is liability that arises when an alleged product defect does not cause the initial accident or harm, but is claimed to have made the harm worse than it otherwise would have been. Section 16(a) makes it clear that the plaintiff must prove that a defect was a substantial factor in causing increased harm beyond that which would have been suffered by the plaintiff from non-defect related causes.
Under § 16(b), the manufacturer is liable only for the actual increase in harm so long as there is proof from which the jury can make a finding about the extent to which the harm was increased by the defect as compared with the harm that would have been suffered if the product had not been defective. However, § 16(c) takes the controversial position that if there is no proof from which the jury can determine the actual amount of the increase in harm, the manufacturer will be liable for the entire harm suffered by the plaintiff so long as the plaintiff meets the burden imposed by § 16(a) of proving that a defect was a substantial factor in causing some increased harm.
Sections 17 and 18 discuss the affirmative defenses of apportionment of liability and contractual disclaimers. Section 17 will simply characterize current product liability case law on apportionment but will not take a position on what direction that law should take. This is because the ALI is working on a separate part of the Restatement of Torts, Third which will deal exclusively with apportionment. Section 18 confirms that contractual disclaimers do not bar or otherwise reduce valid products liability claims.
The last three sections are definitions of the terms "product", "one who sells or otherwise distributes", and "harm to persons or property." Section 19 discusses when tangible and intangible personal property and real property are products under this Restatement and how to distinguish between services and products. Section 20 discusses when product giveaways, leases, bailments and other activities related to the distribution of products fall within the Restatement.
Section 21 discusses when economic loss is included in coverage of this Restatement. Pure economic loss is governed by contract law and the remedies set forth in the Uniform Commercial Code. Economic loss such as loss of earnings suffered by the plaintiff and damage to the plaintiff's property other than the product itself are covered by the Restatement. Damage to the defective product is covered under contract law.
Comment on the Restatement
Many plaintiff's lawyers and law professors have expressed concern that the Restatement is too pro-defendant, that the requirement of proof of a reasonable alternative design makes the burden of proof too great and too costly, and that it eliminates theories of recovery for allegedly negligent conduct by a manufacturer where there is no reasonable alternative design. These arguments will certainly be emphasized to courts who are asked in the future to consider whether to adopt the new Restatement's approach to design defect.
Defense attorneys, by contrast, have expressed concern that the Comments to Section 2 dilute the plaintiff's burden to prove a feasible, safer alternative by stating that the plaintiff does not need to prove the specific effects of the proposed alternative on the cost, utility, and benefits of the product. These same defense attorneys are also troubled by the prospect that a plaintiff may propose an alternative design without actually building or testing it, or even proving that it was within the state of the art at the time the product was manufactured. Defense attorneys and manufacturers have also expressed concern about the possibility that a court could find an entire product category defective under Comment e to § 2.
Some manufacturers have also been disturbed about the § 2(a) definition of liability for a manufacturing defect, which, by contrast with Restatement(2d) § 402A and the current section on design defect, does not require a plaintiff to prove that the product was "unreasonably dangerous" or "not reasonably safe."
The Reporters have carefully studied the comments of all participants in this process, and in many cases have made changes to reflect expressed concerns. Nevertheless, the Reporters have acknowledged that because of the widely divergent views of interested parties, it is likely that no faction will be completely satisfied with the final product.
Since the ALI has no authority to establish law, it could take a few years for these sections to be incorporated by courts into the common law. However, now that this Restatement is finished, it will be cited by more courts and attorneys, and courts may incorporate this language into the common law. It is also possible for state legislators to revise their statutory laws to reflect this new Restatement.
It is difficult to say what effect adoption of these new sections will have on litigating product liability cases in the United States. Since the final document contains more than 300 pages, there is a lot of material for courts to accept, reject, and interpret. Furthermore, because so much of the substance of the Restatement is in the comments rather than in the specific "black-letter" text, the practical effect of the views expressed may be limited unless courts and attorneys can find a way to distill not only the "black-letter" sections but also the accompanying comments into meaningful jury instructions so that jurors can understand and apply the concepts and considerations as intended by the Institute.
Whatever happens, many believe that adoption of this new Restatement will be much less revolutionary than adoption of the Restatement(2d) of Torts in the 1960s. In its final form, this new Restatement is, with some notable exceptions, truly closer to a "restatement" of existing law than the Restatement(2d) was. It does not create any new, significant basis of liability, such as the adoption of strict liability thirty years ago. On the other hand, to the extent it encourages courts to move away from semantic morasses and move toward a practical, systematic approach to the analysis of product liability claims, it serves a highly important function.