Volume 62, Issue 1, 155-184
The manner in which design defects should be defined has caused more controversy than any other area of products liability law. The Restatement (Third) defines a product design as defective when the foreseeable risks of harm from using a product could have been avoided if the manufacturer had used a reasonable alternative design. This definition departs from the Restatement (Second), which defines defective products as unreasonably dangerous if the product fails to meet the expectations of consumers. Without so stating, the Restatement (Third) essentially changes products liability law from a regime of strict liability to one of negligence.
The debate is most unsettled in Pennsylvania. The Pennsylvania Supreme Court currently follows the approach of the Restatement (Second), holding that negligence has no place in determining whether a product is defective and, instead, modeling liability based on consumer expectations. In 2007, however, the Third Circuit predicted that the Pennsylvania Supreme Court would adopt the Restatement (Third) and apply a fault-based standard to determine liability in products liability cases. The Pennsylvania Supreme Court granted certiorari in a case to decide whether it should apply the Restatement (Third); however, in 2009, it dismissed the appeal as improvidently granted. As a result, the products liability law in Pennsylvania is in flux.
I argue that instead of following either of the Restatements, courts should apply strict liability, in which manufacturers are liable for foreseeable harm caused by their products, regardless of
whether the product was deemed “defective.” Although defect will not serve as a limitation on liability, manufacturers will be protected under my proposal by the affirmative defenses of negligent use or assumption of risk. By eliminating the elusive concept of defect from products liability, liability will be more predictable and will better reflect the costs of product use.