Prospective Application of the Restatement (third) of Torts: Products Liability in Alaska

• Citation: Vol. 17
• Publication year: 2000

§ 17 Alaska L. Rev. 1. PROSPECTIVE APPLICATION OF THE RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY IN ALASKA

Alaska Law Review
Volume 17
Cited: 17 Alaska L. Rev. 1

PROSPECTIVE APPLICATION OF THE RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY IN ALASKA

THOMAS V. VAN FLEIN ^[*]

I. INTRODUCTION

II. DIFFERENTIATING "STRICT" LIABILITY FROM ABSOLUTE LIABILITY

III. ALASKA PRODUCTS LIABILITY OVERVIEW

A. Principles of Alaska Products Liability Law

B. Achieving Efficacy Through Evidentiary Standards

C. The Development of Alaska Products Liability Law and Partial Adoption of the Second Restatement

IV. A COMPARISON OF KEY PROVISIONS OF THE THIRD RESTATEMENT WITH EXISTING ALASKA LAW

A. Alaska's Rejection of the Second Restatement's "Unreasonably Dangerous" Standard

B. The Third Restatement's "Reasonably Safe" Standard Versus The Second Restatement's "Unreasonably Dangerous" Standard: Old Wine In A New Bottle

C. The Consumer Expectation Test in Alaska and the Third Restatement's Rejection of the Test

D. Prescription Drugs and Medical Devices: Section 6 of the Third Restatement Does Not Completely Conform With Shanks

E. Product Warning

F. The Crashworthiness Doctrine

V. PRESERVING THE DOCTRINAL WALL BETWEEN PRODUCTS LIABILITY AND NEGLIGENCE

VI. CONCLUSION

FOOTNOTES

This Article examines Alaska's products liability jurisprudence in relation to the Restatement (Third) of Torts: Products Liability, the American Law Institute's most recent formulation of the law of torts. The Article begins with an analysis of the Alaska Supreme Court's seminal products liability decisions, including the Court's partial adoption of products liability provisions from the First and Second Restatements. The Article then analyzes the provisions of the Third Restatement, comparing them with current Alaska law. The Article next analyzes Alaska's preference for preserving the doctrinal wall between negligence principles and products liability principles, concluding that the Third Restatement does not recognize this distinction. The author concludes that the Third Restatement should be adopted only to the extent that it does not conflict with Alaska law, and in conformity with Alaska's adoption of First and Second Restatement provisions.

I. INTRODUCTION

In 1998, the American Law Institute ("ALI") completed its restatement of the law regarding products liability with the publication of the Restatement (Third) of Torts. ^[1] The ALI expanded its treatment of products liability into a separate volume as opposed to its previous status as a subpart (section 402A) of the Restate- [*pg 2] ment (Second) of Torts. ^[2] The ALI first promulgated section 402A in 1964. By eliminating the traditional requirement of privity, section 402A recognized the development of strict products liability, which allowed consumers to bring actions directly against manufacturers or distributors. ^[3] The Second Restatement "has been called 'the most widely accepted distillation of the common law of torts.'" ^[4] Thirty-four years after section 402A earned a broad following among the states, ^[5] the ALI has engaged in a "total overhaul" of the Second Restatement, and section 402A in particular, by drafting the Third Restatement. ^[6]

The Restatement (Third) of Torts: Products Liability, though criticized by some as too political, ^[7] nevertheless recognized emerging trends and decisions adopted by the various states. ^[8] In- [*pg 3] stead of shrinking from the "politicized" characterization, the ALI justified its approach on the ground that products liability is "of course 'political' in that it involves issues of distributive justice and has attracted the attention of vocal and aggressive partisans." ^[9] Accordingly, controversial and disputed issues had to be scrutinized in drafting a new restatement and the ALI attempted to synthesize a consensus view. In some areas, however, the Third Restatement did slightly more than simply restate or codify the law followed in a majority of jurisdictions; it set forth some concepts that were not well settled, even by the ALI's own admission. ^[10]

Historically, Alaska has only embraced portions of the Second Restatement and expressly rejected key elements. In several material respects, Alaska has applied its own unique formulation for products liability. It has adopted a three-pronged approach to products liability where a product "may be defective because of a manufacturing defect, a defective design, or a failure to contain adequate warnings." ^[11] In this respect, Alaska has set its own course and applied the Second Restatement only when it conformed with the better-reasoned public policy. In Montana, the Supreme Court explained a similar relationship with the Restatement:

We have stated that this Court shall not blindly follow the dictates of the Restatement commentaries. We emphasize that this Court adopted the rule as set out in the Restatement, but we did not and do not intend the restraints in the comments to this rule to hamstring us in developing and refining the rule of strict liability. To the extent that the comments are helpful in our development of the law, we shall accept them; but we will reject them where we believe a more appropriate explanation of the rule of strict liability can be provided. ^[12]

As discussed more fully below, this statement reflects the Alaska Supreme Court's approach as well. This Article evaluates several provisions of the Third Restatement and compares them to existing Alaska law. The goal is to examine the policy governing prod- [*pg 4] ucts liability, clarify the present status of Alaska products liability law, and then reconcile both with the Third Restatement and ultimately provide reasoned recommendations regarding the prospective application or adoption of some of these provisions in light of existing Alaska law. This Article begins with a thirty-year overview of Alaska products liability law and then juxtaposes the current state of this law with the Third Restatement modifications.

II. DIFFERENTIATING "STRICT" LIABILITY FROM ABSOLUTE LIABILITY

Before discussing the provisions of the Third Restatement as they relate to current Alaska law, one caveat is in order: the term "strict" should generally be avoided as a modifier of the term "products liability" unless referring to manufacturing defects (as opposed to design or warning defects) or vicarious liability imposed on sellers and retailers. Use of the traditional term "strict products liability" is not utilized herein except when discussing manufacturing defects or vicarious liability of sellers; it creates a false aura of absolute liability where none exists. Rather, the doctrine is simply referred to as "products liability."

This is done for three reasons. First, use of the term "strict" relative to a manufacturer is a misnomer that implies "absolute liability" irrespective of defect. The Alaska Supreme Court, in Caterpillar Tractor Co. v. Beck ("Beck I"), ^[13] reasoned that "manufacturers are not absolute insurers of their products" and that plaintiffs must prove more than harm from the product. ^[14] Thus, use [*pg 5] of the term "strict" is avoided here to eliminate even the inference of absolute liability against a manufacturer, notwithstanding the fact that many Alaska decisions qualify products liability with the term "strict." ^[15] This also avoids confusion with true strict liability relative to ultrahazardous activities, where liability is imposed for any injury irrespective of the safety precautions taken. ^[16]

It is more accurate to state that once a defect is proven, the manufacturer will be liable for that product defect if it caused injury, since proof of a defect is "tantamount to fault in the sense that we will impose legal responsibility for it." ^[17] For manufacturing defect cases, the term "strict" is more apropos since liability is certain if the plaintiff can establish that the product purchased differed from what the manufacturer intended to make (and that difference caused harm). ^[18]

In contrast, it is questionable whether the liability for design products liability really is "strict." Decisions in this area, especially under a risk-utility analysis, inevitably balance competing designs, [*pg 6] and implicitly weigh the "reasonableness" of the product design with product alternatives. Negligence is a concept rooted in reasonableness. ^[19] To the extent courts, at least in part, utilize reasonableness principles in the risk-benefit analysis, it does not help to clothe the doctrine with an incorrect or misleading label. The Alaska Supreme Court, however, has consistently attempted to maintain a doctrinal wall between products liability and negligence concepts. ^[20]

Thus, there are two circumstances where true "strict" liability is imposed: (1) for manufacturing defects (where no question about the reasonableness of the manufacturer's conduct is usually raised), and (2) for the liability of distributors and retailers, who are liable though they had no role in the manufacturing or design process. In this manner, the term "strict" has some force. "Strict" liability in this context may nevertheless be better described as "vicarious" or "derivative" liability because even a retailer or distributor will not be derivatively liable if the manufacturer is not liable for selling a defective product. ^[21] On the other hand, if the product proves defective...