Main Content

Main Content

Zittrain Torts Playlist Spring 2013

The Restatement Approach to Products Liability

Headnote

What appears to be the essential differences between the two approaches?

1

Restatement (Third) of Torts: Products Liability

2


3


4

§ 1. Liability Of Commercial Seller Or Distributor For Harm Caused By Defective Products

5


6


7

     One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.

8


9


10


11


12

Restatement (Second) of Torts

13


14


15

§ 402A. Special Liability Of Seller Of Product For Physical Harm To User Or Consumer

16


17

     (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

           (a)the seller is engaged in the business of selling such a product, and
           (b)it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

     (2) The rule stated in Subsection (1) applies although

           (a) the seller has exercised all possible care in the preparation and sale of his product, and
           (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

18


19


20

Comments

21


22


23

i. Unreasonably dangerous. The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from over-consumption. Ordinary sugar is a deadly poison to diabetics, and castor oil found use under Mussolini as an instrument of torture. That is not what is meant by “unreasonably dangerous” in this Section. 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. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fuel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous. Good butter is not unreasonably dangerous merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish oil, is unreasonably dangerous.