Sailing Under False Colors: The Continuing Presence of Negligence Principles in "Strict" Products Liability Law

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Dean Prosser, in his celebrated article, The Assault Upon the Citadel, compared the assault on warranty law's privity requirement to an attack on a stoutly defended fortress during the Middle Ages. Since that time, another conflict has arisen among students of products liability, namely whether product sellers should be subject to strict liability or whether certain aspects of this field should instead be controlled by negligence principles. However, unlike the assault some sixty years ago on the privity requirement, this present conflict bears a greater resemblance to the protracted trench warfare of World War I than it does to the siege of a medieval citadel. In a nutshell, here is the problem: For reasons that will be described in greater detail below, the law of products liability was cast solely in terms of strict liability in tort when the courts abandoned warranty law in the 1960s. The early pioneers, such as Prosser and Traynor, believed that defectiveness was the touchstone of liability under their proposed strict liability regime. Only later, did it become apparent that the existing defectiveness paradigm, which worked well with manufacturing defects, was not suitable in cases where a product's design or warnings were at issue. Instead, courts and commentators developed various tests of defectiveness for product designs and warnings purportedly based on strict liability. In fact, these tests, which typically involved some form of risk-utility balancing, were based more on negligence than strict liability.

I conclude that the time has come to repudiate concepts of defectiveness and strict liability in design and failure to warn cases, which constitute the bulk of products liability litigation, and instead adopt an approach that focuses more on manufacturer conduct. In other words, strict liability and the concept of defectiveness should be confined to manufacturing defects. Furthermore, negligence principles should be applied when design and failure to warn cases are involved and the concept of defectiveness can be dispensed with as unnecessary since the risk-utility balancing analysis of negligence can focus on the manufacturer's conduct instead.

Part II recounts the familiar story of how strict products liability triumphed over negligence and warranty law in the early 1960s. It also explores the role that policy rationales, such as risk distribution and accident cost avoidance, played in the development of products liability law during this period. Part III examines the use of defectiveness as a liability standard and also documents the lingering role of negligence in § 402A and its comments. It also describes the various tests for defectiveness that evolved in the 1970s and 1980s in response to the increasing recognition that design and warning cases needed to be evaluated differently than manufacturing flaws. Part IV analyzes the new Products Liability Restatement and points out its heavy reliance on negligence principles, particularly in § 2(b) and § 2(c). Finally, Part V proposes liability rules for design and warning cases that eliminate defectiveness as a basis for liability and, instead, focus on the conduct of the product manufacturer.

Original languageAmerican English
Pages (from-to)265-295
JournalUniversity of Dayton Law Review
Issue number2
StatePublished - Apr 1 2018


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