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Zittrain Torts Playlist Spring 2018

XXI. Products Liability: Design Defect and Warning

Manufacturing defect cases can be straightforward: there’s an intended design, and then a variance that happens to make the product more dangerous, and the danger then materializes. But what if the design itself should be flawed?

At least two approaches have emerged by which to judge a product’s design. The first, grounded in traditional warranty doctrine, asks whether consumer expectations are met by the product. The second, founded in traditional negligence doctrine, asks whether the product’s design well balances risks and benefits. Our cases show instances in which a product might pass one test and not the other -- and thus shows the plaintiff and defendant inheriting the other’s position from one case to another as to which test is to be preferred. In many jurisdictions, both tests might be available, with the circumstances of the case dictating which of the two tests will be applied.