Regulatory Standards and Products Liability: Striking the Right Balance Between the Two

Common law courts have a long tradition of borrowing legislative and regulatory standards to define standards of care under the tort system. Treating such standards as setting minimum levels of care and safety under tort law, the courts uniformly have ruled that violations of standards constitute negligence per se, while compliance is merely evidence of negligence. Although critics of the tort system have urged legislatures and courts to adopt rules giving greater weight to regulatory compliance in products liability cases, the drafters of the Restatement (Third) of Torts: Products Liability have declined to do so. They have adopted instead an approach that largely tracks common law precedent. This Article analyzes the new Restatement’s treatment of regulatory and legislative standards and concludes that the drafters generally have pursued a wise policy, and in a number of respects have improved upon existing common law rules.