Liability of Suppliers of Natural Raw Materials and the Restatement (Third) of Torts: Products Liability– A First Step Toward Sound Public Policy

From its inception, the law governing liability for damage or injuries caused by defective products has pertained to potential liability for products that have been processed, finished, or fabricated. Naturally occurring raw materials, for the most part, have been considered beyond doctrinal concern, largely because characterizing a merchantable raw material, such as copper or pigiron, as defective is conceptually difficult. Nevertheless, certain doctrines that developed for the application of products liability to other products have gained sporadic application to naturally occurring raw materials, including the sophisticated purchaser defense, the bulk supplier defense, and the ingredient supplier defense. Madden argues that the proliferation of discrete defenses only has spawned confusion, and has not altered the decisional history demonstrating that liability will not be imposed for sale of bulk quantities of naturally occurring raw materials. Consequently, he concludes that the new Restatement should provide a comment stating explicitly that liability should not attach to such sellers absent a showing of a defect in the raw material itself that poses an unreasonable risk of personal physical injury.