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Products liability by Tiffany Funk: Restatement (Second) of Torts

Exploring Key Theories of Products Liability: Design Defect, Manufacturing Defect, Failure to Warn, and Warranties

LINK: Restatement (Second) of Torts (2012)

Restatement (Second) of Torts (2012)

LIABILITY OF PERSONS SUPPLYING CHATTELS FOR THE USE OF OTHERS

TOPIC 1. RULES APPLICABLE TO ALL SUPPLIERS

§ 388. Chattel known to be dangerous for intended use

See comments after § 388 

TOPIC 3. MANUFACTURER OF CHATTELS

§ 395. Negligent manufacture of chattel dangerous unless carefully made

Restatement (Second) of Torts § 395 cmt. g (2012), provides that "the amount of care which the manufacturer must exercise is proportionate to the extent of the risk involved in using the article if manufactured without the exercise of these precautions." A manufacturer is held to the skill of an expert in that business and to an expert's knowledge of the arts, materials, and processes. 

See comments after § 395

§ 398. Chattel made under dangerous plan or design

See comments after § 398

TOPIC 4. SELLERS OF CHATTELS MANUFACTURED BY THIRD PERSONS

§ 400. Selling as own product chattel made by another

See comments after § 400

TOPIC 5. STRICT LIABILITY

§ 402A. Special liability of seller of product for physical harm to user or consumer

The consumer expectations test, employed by many courts, is developed through § 402A. "A product is defective in design or formulation when it is more dangerous than an ordinary consumer would expect when used in an intended or reasonable foreseeable manner." Restatement (Second) of Torts § 402A cmt. g (2012). This section defines a defective condition only where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him. Hence, what were the consumers expectations of the product. Restatement (Second) of Torts § 402A cmt. i (2012) defines unreasonably dangerous where the defective condition of the product makes it unreasonably dangerous to the user or consumer. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Comment i employs a risk/utility or cost/benefit analysis. Determining whether a design risk is "unreasonable" involves a balancing of the probability and seriousness of harm against the costs of taking precautions. Thus, the question or test presented is whether given the risks and benefits of and possible alternatives to the product, we as a society will live with it in its existing state [utility outweighs the risks] or will require an altered, less dangerous form. However, under the risk/utility analysis, if an alternative design or plan to remedy the defect is introduced, this defect MUST NOT add or create "a new defect." Some courts only apply the consumer expectations test when  the everyday experience of the particular product's users permits the inference that the product did not meet minimum safety expectations. Essentially, when using the CE test, it is an area where a potential expert is not really needed. It is a situation where a jury can just infer yes the product had a defect based on everyday experience and expectation. 

See comments after § 402A

§ 402B. Misrepresentation by seller of chattels to consumers

§ 402B applies to one engaged in the business of selling any type of chattel, and is limited to misrepresentations of their character or quality. Unlike the rule of strict liability stated in § 402A, which is a special rule applicable only to sellers of product for use and consumption and does not depend upon misrepresentation. 

See comments after § 402B

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