Defectiveness Restated: Exploding the "Strict" Products Liability Myth
David G. Owen   |   1996 U. Ill. L. Rev.

Strict liability in tort has occupied the core of modern products liability doctrine ever since Dean Prosser first penned the most often cited Restatement section in history--section 402A of the Second Restatement of Torts. In the Third Restatement, the ALI has completely restructured the definition of product defectiveness. The inscrutable phrase that has confounded courts and commentators for so many years--"defective condition unreasonably dangerous"--is now trifurcated according to the separate types of product defects: manufacturing defects, design defects, and warnings defects.

In this important article, David Owen explores the conceptual developments that led to the restated liability formulations and provides much needed clarification of the "defectiveness" concept for courts and practitioners alike. The Third Restatement's redefinition of liability for manufacturing defects in terms of departure from intended design restates the law in a manner that faithfully reflects how courts have handled cases of this type. Yet the new Restatement's definitions of defectiveness in design and warnings cases are structurally awkward and unduly complex, a condition which promises to continue the kind of confusion that has plagued the application of section 402A in the courts. In order to clarify the fundamental tests of product defect, the complicated definitions of the Third Restatement are first decoded, in order to reveal their essential concepts, and they are then reformulated into simple and straightforward liability tests that courts and juries can comprehend. In this manner, the Third Restatement's standards are translated into a form that should be of both practical and theoretical use in resolving the central liability issues in modern products liability litigation.

A reworking of the definitions of product defect requires an exploration into the nature of "strict" liability in the various products liability contexts. While true strict liability has been adopted for manufacturing defects, a reasonableness standard, which includes the notions of optimality and balance, in fact prevails in the design and warning contexts. Professor Owen argues persuasively that the reasonableness standard properly applied by courts in design and warnings cases is simply negligence, wrapped in a strict liability shroud, and that courts might profitably dispense with the myth that responsibility in these contexts is strict and embrace instead both the language and doctrine of the negligence standard they truly use.

* Byrnes Scholar and Professor of Tort Law, University of South Carolina. B.S. (Wharton) 1967; J.D. 1971, University of Pennsylvania. Member, ALI Consultative Group for the Restatement (Third) of Torts: Products Liability.