Brooklyn Journal of Corporate, Financial & Commercial Law

First Page



"The largely neglected role of bystanders within products liability is reflected in the extensive scholarship of Professor Aaron Twerski—the rightly celebrated honoree of this symposium. Within Twerski’s vast body of impressive publications, his limited discussions of bystanders align with the widely held assumption that, aside from the problems they pose for the consumer expectations test, bystanders do not merit much attention within the context of products liability. Bystander injuries are much more important than is commonly recognized; one must focus on them to adequately identify the conditions under which consumer-choice doctrines properly limit tort liability. Because the varied rules of strict products liability are designed to protect consumer expectations, recovery is barred when consumers make informed risk-utility choices concerning a product attribute and consequently do not have frustrated expectations about how the product will perform in this regard. The resultant consumerist version of the assumed-risk rule bars recovery for bystanders who do not voluntarily consent to the risk exposure. This limitation of liability is problematic only when the product choice pits the interests of consumers against bystanders, with consumers protecting themselves by selecting products that shift the risk of injury onto bystanders. In cases involving these types of risk-risk tradeoffs, the consumerist orientation of strict products liability is incapable of addressing a bystander’s claim that consumers should not be given the choice in question. According to critics, this inherent limitation of the consumer expectations test merits the wholesale rejection of strict products liability. However, strict products liability complements and does not displace the default rule of negligence liability, which provides the normatively appropriate rule for adjudicating these bystander claims. By clearly demarcating the role of consumer-choice doctrines, bystander injuries help to establish the important boundary between strict products liability and negligence liability. By contrast, the negligence-based framework of the Restatement (Third) of Torts: Products Liability erases the differences between consumers and bystanders, yielding a normatively confused liability inquiry that erroneously specifies the conditions under which consumer-choice doctrines should limit liability. Rather than providing a reason to reject the consumer expectations test, bystander injuries help show why the consumerist orientation of strict products liability makes it a normatively distinct body of tort law that the Third Restatement mistakenly lumps together with ordinary negligence liability."