Design Defects Under the Proposed Section 2(b) of the Restatement (Third) of Torts: Products Liability– A Judge’s View

The proposed section 2(b) of the Restatement (Third) of Torts: Products Liability has caused a great deal of controversy, and many are concerned that this section represents a radical change in the law. This Article explains that section 2(b) in fact provides a pragmatic, workable tool for judges and attorneys to explain and prove a manufacturer’s liability for a defective product. It sheds much of the baggage of the Restatement (Second) of Torts section 402A and its commentaries, yet preserves the essence of the theory behind section 402A. The criticisms of the new language are adequately met in the comments, except possibly for problems with (1) egregiously unsafe products, or (2) products with little or no efficacy that should not be marketed at all, but for which there is no safer design. Both problems can still be cured by commentary in the final draft to be passed upon in May 1997.