Abstract
A quarter century has passed since the adoption by the American Law Institute of the Products Liability Restatement. It is time to reflect on whether it has influenced the courts. At the time of its adoption there was considerable controversy with regard to several sections. Some sections were not controversial. There was little disagreement that a plaintiff may draw a res ipsa like inference of product defect. Nor was there disagreement that if a product was in violation of statute that the product was defective per se. Two sections were highly controversial. The Restatement held that a product could not be held to be defectively designed unless a plaintiff was able to prove that there was a reasonable alternative design available that would have avoided plaintiff's harm. The opponents to this section argued that if a product disappointed consumer expectations it was defective. With regard to drug design the Restatement held that a drug could not be held to be defectively designed if the drug would have been prescribed by a physician to any class of persons. This article demonstrates that the reasonable alternative design standard for most products has been adopted by a majority of jurisdictions. Those jurisdictions that allow recovery based on consumer expectations do so only in a very narrow group of cases. Furthermore, even jurisdictions that purport to adopt the consumer expectations standard plaintiffs invariably prove a reasonable alternative design. As to the defective drug design the case law is mixed but scholars and commentators agree with the Restatement test. The article reviews many sections of the Restatement and finds overwhelming approval of the project.
Recommended Citation
Aaron D. Twerski,
A Quarter Century After the Products Liability Restatement: Reflections,
90 Brook. L. Rev.
1027
(2025).
Available at:
https://brooklynworks.brooklaw.edu/blr/vol90/iss4/1
