Restatement Reflects Biases

With pressure from the corporate world, the American Law Institute (ALI) adopted the final draft of the Restatement (Third) of Torts: Product Liability last May. Perhaps the most controversial and highly debated change is the abandonment of Section 402A of the Restatement (Second) of Torts in the design and warning defect contexts.

Replacing it is Section 2(b) which requires plaintiffs in design defect cases to prove that an alternative design was or could have been available at the time of manufacture of a defective product, an often impossible burden for an injured plaintiff. This means that even in the simplest of cases, a plaintiff will have to hire an expert to, in essence, re-design the defective product, which may be inherently unfair given a minor recovery for some plaintiff's injuries and the manufacturer's control of the product information.

Section 2(b) articulates a tripartite breakdown of products cases into manufacturing, design and warning defects and then proceeds to retain strict liability principles for manufacturing defects but not for design and warning defects. The section ignores the fact that most product liability cases - or at least the great majority of the ones in which I have litigated - allege two if not all three of these types of defects in the intial pleadings and the cross-over and overlap are often difficult to distinguish until discovery is well underway. The Restatement has created a distraction for the courts which, instead of semantics, should be focussing on whether the defendant is liable for the defect.

Proof of alternative design, which now becomes part of plaintiff's prima facie case, takes on a life of its own in a new test. The defectiveness of design is measured now by the "foreseeable risks of harm posed by the product, rather than by the risks of use not contemplated by the "ordinary user." What the Restatement has done is diminish the role of a consumer expectation test to a mere factor in a risk-utility analysis in design defect cases. But proof of an alternative design goes much beyond a mere factor in a risk-utility analysis, and instead has become a condition precedent to suit. The Restatement's upside-down reasoning has put the burden on the party least able to evaluate the product, anticipate the hazards or implement any necessary changes or improvements.

The Restatement's reporters are to be questioned on whether this represents the current state of the law. See, Wagner v. Clark Equipment Company, Inc., 243 Conn. 168, 700 A.2d 38 (1997). A closer examination of the provisions in the new Restatement, however, indicate that some of the measures are not, in fact, a restatement of the law at all, but rather are more a reflection of the biases of the Restatement's reporters. Perhaps a thumbnail history will indicate how this evolved.

During the early 1960s, under the leadership of its reporter, William Prosser, the ALI drafted several versions of the Restatement dealing with strict liability for products. By 1964, the process culminated in Section 402A which applied to all products. The section was designed to afford maximum protection from defective products in that no proof of negligence was required. The principle was adopted by nearly every jurisdiction in the country although the level of care required of manufacturers did not change significantly. But in the mid-1980s, though, things were much different. At the height of the so-called "tort reform" movement, ALI again looked into this issue under its newly-elected director, Professor Geoffrey Hazard. Under a membership that was now anti-consumer, the ALI had a new mission.

In March of 1992, the ALI abruptly announced bold plans to revise Section 402A. Professors James Henderson, Jr. and Aaron Twerski were appointed as co-reporters for the new project, having just authored an article in the Cornell Law Review entitled, "A Proposed Revision of Section 402A of the Restatement (Second) of Torts." They advocated a return to negligence principles in design defect cases, despite thousands of thoughtful cases relying on Section 402A.

Despite considerable criticism, the duo, nevertheless, plunged headlong into the project with the predictable result embodied in the Restatement (Third) of Torts. Certainly the Restatement has input from a number of people - lawyers, judges, academicians - but the exact wording and tone are left to the two reporters, although highly credentialed, but who have long been vocal advocates of greater judicial activism to restrict the role of the jury in design and warning cases, which is in direct opposition to the original proposition supporting strict liability theory.

The membership - decidedly tilted toward corporate interests - votes on the drafts, but even that can be marked by bias given the number who attend the torts sessions, the even lesser number who vote and, perhaps, even lesser still, those who read all of the cases and materials in order to form an independent decision.

The co-reporters' statement that an overwhelming majority of jurisdictions support a rule that imposes an absolute requirement of alternative design evidence has been criticized as being inflated. An examination of Illinois law certainly indicates that assertion to be an overstatement of the state courts' position.

In Anderson v. Hyster Co., 74 Ill.2d 364, 385 N.E.2d 690 (1979), the court affirmed the verdict for plaintiff and held that proof regarding the availability and feasibility of alternative designs at the time of a product's manufacture may be presented, but it was not mandatory in order for a plaintiff to prevail.

In Palmer v. Avco Distributing Corp., 82 Ill.2d 211, 412 N.E.2d 959, 963-64 (1980), the Supreme Court of Illinois found that a plaintiff could establish liability for a design defect by using either a consumer expectation test or by showing an alternative design. In 1990, the court shifted the burden of proof to the defendant in a defective design case in Lamkin v. Towner, 138 Ill.2d 510, 563 N.E.2d 449 (1980), set forth the following test:

A plaintiff may demonstrate that a product is defective in design, so as to subject a retailer and a manufacturer to strict liability for resulting injuries, in one of two ways: (1) by introducing evidence that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or (2) by introducing evidence that the product's design proximately caused his injury and the defendant fails to prove that on balance the benefits of the challenged design outweigh the risk of danger inherent in such designs. Id., 563 N.E.2d at 457.

Perhaps the Restatement reporters are guilty of something the executive director of the ALI was reported to have quipped: examining case law is like taking a Rorschach test - sometimes you see something in a case because it is what you were hoping to find.

In embracing a bright line test in place of flexibility, the ALI certainly runs the risk of compromising justice. But, perhaps what is most disturbing is that the very objective of product liability law has been undermined in the new Restatement. Removing legal and practical barriers for victims of unreasonably dangerous products has been replaced by a protectionist attitude toward the very defendants accused of creating the harm.

As products become more complex in today's marketplace, the solution is not to block access to the courthouse or even to change the standard of care for manufacturers, but the law and strict liability standards already in place should be left to the courts to determine on a case-by-case basis in determining how the injured victim can obtain redress through the current judicial system in place.