The Restatement (Third) of Torts: Products Liability - the tension between product design and product warnings.

• Author: Silverglate, Spencer H.

In May 1997, the American Law Institute (ALI) (1) completed the Restatement (Third) of Torts: Products Liability. The Third Restatement admittedly "goes beyond the law as the law otherwise would stand" (2) and is "an almost total overhaul" (3) of the Restatement (Second) of Torts, which was issued in 1965. The Second Restatement contained a single provision dealing with products strict liability: Section 402A. The vast majority of jurisdictions, (4) including Florida, (5) have adopted [section] 402A. The major thrust of this section was to eliminate privity, so that any person injured by a defective product could directly sue the manufacturer and members of the chain of distribution. (6) The substantive focus of [section] 402A was on manufacturing defects. (7) The Third Restatement greatly expands the coverage by addressing the many developments in products law occurring over the ensuing 35 years. (8)

One of the most significant and controversial features of the Third Restatement is its treatment of the relationship between product design and product warnings and instructions. (9) Most products can be designed more safely. If, however, a product may be used safely when its warnings are heeded, is the product defective if a safer design is not implemented? This article addresses the tension between the need for safe products on the one hand and for individual responsibility in following product warnings and instructions on the other. The issue is analyzed against the backdrop of the Second and Third restatements and Florida law.

The Second Restatement Position

Section 402A of the Restatement (Second) of Torts recognized products strict liability. It states that "one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold." This rule applies even though "(a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller." Courts have interpreted [section] 402A to mean that a product may be unreasonably dangerous because of a defect in manufacturing, design, or warnings and instructions. (10)

Comment j to [section] 402A addresses product directions and warnings. It states that "in order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warnings." Significantly, the comment goes on to state that "where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous." Comment j gave manufacturers a foothold to argue that products which could be used safely if their warnings and instructions were followed were neither defective nor unreasonably dangerous. (11)

The Third Restatement Position

The reporters of the Third Restatement referred to the Comment j emphasis on product warnings as "unfortunate language" which has elicited "heavy criticism." (12) In response to this perceived criticism, the Third Restatement shifts the emphasis away from product warnings and toward safer product design. The core provision of the Third Restatement, [sections] 2, states that "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." It goes on to define each category of strict liability separately:

* A product "contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product."

* A product "contains a design defect 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 reasonable alternative design renders the product not reasonably safe."

* A product "is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution and the omission of the instructions or warnings renders the product not reasonably safe."

Reasonable Alternative Design

To prove design defect, the Third Restatement, unlike the Second Restatement, requires a plaintiff to demonstrate the existence of a reasonable alternative product design. This manufacturer-friendly provision was controversial and hotly contested. (13) Comment d to [section] 2 of the Third Restatement defines reasonable alternative product design in terms of the "risk-utility balancing test." The test is "whether a reasonable alternative design would, at a reasonable cost, have reduced the foreseeable risk of harm posed by the product and, if so, whether the omission of the alternative design by the seller ... rendered the product not reasonably safe."

Comment f addresses the factors relevant in determining whether the omission of a reasonable alternative design renders a product not reasonably safe. Such factors include the magnitude and probability of the foreseeable risks of harm; the instructions and warnings accompanying the product; consumer expectations regarding the product and the relative advantages of the alternative design, including its production costs, its effect on product longevity, maintenance, repair, and aesthetics; and the range of consumer...