33 umpslr 909 for educational use only page 1 33 u....

University of Memphis Law ReviewSummer 2003

Products Liability SymposiumArticle

*909 A CALL FOR AN ACCURATE RESTATEMENT (THIRD) OF TORTS: DESIGN DEFECTFrank J. Vandall [FNa1]

Joshua F. Vandall [FNaa1]

Copyright © 2003 University of Memphis Law Review; Frank J. Vandall, Joshua

F. Vandall

I. Introduction ........................................................ 910

II. A Short History of Products Liability ............................... 911

III. A Call for a Restatement (Third) of Torts: Design Defect ............ 921

IV. An Examination of the Cases That Have Considered Reasonable

Alternative Design Since Promulgation of the Restatement (Third)

Section 2(b) ...................................................... 926

A. States That Have Rejected the Restatement (Third)'s Reasonable

Alternative Design Requirement .................................... 926

1. California ..................................................... 926

2. Missouri ....................................................... 927

3. Maryland ....................................................... 928

4. Pennsylvania ................................................... 928

B. States That Hold Reasonable Alternative Design Is One of Several

Factors to Consider in Determining Whether a Product Design Is

Defective ......................................................... 930

1. Colorado ....................................................... 930

2. New York ....................................................... 930

33 UMPSLR 909 FOR EDUCATIONAL USE ONLY 33 U. Mem. L. Rev. 909(Cite as: 33 U. Mem. L. Rev. 909)

© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.

3. Oregon ......................................................... 932

C. States That Mention the Reasonable Alternative Design Requirement

Favorably ......................................................... 932

1. Georgia ........................................................ 932

2. New Jersey ..................................................... 933

3. Michigan ....................................................... 935

D. States That Have Incorporated the Restatement (Third)'s

Reasonable Alternative Design Requirement into Their Statutes ..... 936

1. Louisiana ...................................................... 936

2. Texas .......................................................... 937

3. Mississippi .................................................... 939

V. Conclusion .......................................................... 939

*910 I. IntroductionSection 2(b) of the Restatement (Third) of Torts: Products Liability provides:S 2. Categories of Product DefectA product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or isdefective because of inadequate instructions or warnings. A product:. . . .(b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by theadoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain ofdistribution, and the omission of the alternative design renders the product not reasonably safe. [FN1]

Section 2(b) is flawed in three interrelated ways. First, it does not reflect the history of products liability. Second, it leads tohigher costs of litigation and other serious problems with implementation. Third, it has not been adopted by a majority of*911 the courts since 1994. [FN2] For these reasons and others there is a need for a new Restatement of Torts) for DesignDefect that would accurately reflect the law and present a case-based test for design defect.

Part II will explain the history of products liability law. Part III will critique the Restatement (Third) of Torts section 2(b),[FN3] and Part IV will examine the key cases over the past eight years that have examined section 2(b).

II. A Short History of Products LiabilityThe Restatement (Third) of Torts argues that negligence is the basis of the new test for design defect. [FN4] It is arguablefrom a historical perspective, however, that strict liability in products and all civil liability has its foundation in absoluteliability. This is made clear by the case of Anonymous. [FN5] In that 1466 case, Judge Bryant said:



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If a man does a thing he is bound to do it in such a manner that by his deeds no injury or damage is inflicted upon others.Similarly, if a man commits an assault upon me and I cannot avoid him if he wants to beat me, and I lift my stick in selfdefense in order to prevent him and there is a man in back of me and I injure him in lifting my stick, in that case he wouldhave an action against him, although my lifting the stick was lawful to defend myself and I injured him without intent. [FN6]

In the context of products cases, negligence did not emerge until 1850. [FN7]

*912 One of the earliest stumbling blocks to liability in civil suits was the concept of privity. Simply stated, privity meansthat liability will extend only to the immediate parties to the contract. It will not extend to third parties. The first case torecognize privity was Winterbottom v. Wright. [FN8] In that case, the defendant Wright, under a contract with the postmastergeneral, agreed to maintain a stagecoach for the delivery of mail. The coach subsequently broke down as a result of thedefendant's failure to perform the contract with the postmaster general. Winterbottom, the driver of the coach, was thrownfrom his seat and permanently injured. In rejecting the suit by the driver, the court said:There is no privity of contract between these parties: and if the plaintiff can sue, every passenger, or even any person passingalong the road, who is injured by the upsetting of the coach, might bring a similar action. Unless we confine the operation ofsuch contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can seeno limit, would ensue. [FN9]

In order to accomplish just results, the courts over the subsequent sixty years developed numerous exceptions to privity.Perhaps the clearest examples are cases involving eminently dangerous products. In Thomas v. Winchester, [FN10] a dealerin drugs sold to a druggist a jar of belladonna, a deadly poison, and labeled it extract of dandelion. [FN11] The druggist soldit to a patient and the patient suffered serious injury. [FN12] Although there was no privity, the court allowed the suit to goforward because the product was eminently dangerous. [FN13] The classic case involving eminently dangerous products isLangridge v. Levy. [FN14] In that case, a firearms dealer sold a gun to a man for use by his son, and represented that it wassafe. The son, while shooting it, was seriously injured. The *913 son, although not in privity with the dealer, was able torecover because the dealer knew that the gun was eminently dangerous.

Another justification for finding an exception to privity can be found in Coughtry v. Globe Woolen Co., [FN15] holding thatif a third party is invited to come upon the actor's premises, he will be able to recover whether or not he is in privity with theactor. [FN16] In Coughtry, an employee of the main contractor was working upon a scaffold, which had been put up by theowner of the building, when he fell and was seriously injured. [FN17] Suit was brought against the person who put up thescaffolding and privity was raised as a defense. [FN18] The legal fiction of invitation was used to allow the plaintiff torecover. [FN19]

A third example of the courts allowing privity to be skirted involves fraud. In the case of Kuelling v. Roderick LeanManufacturing Co., [FN20] the defendant fraudulently repaired a roadroller by filling a hole in the wooden frame of the rollerwith putty and painting over it. [FN21] While the plaintiff was driving a team of horses with the roadroller, the yoke broke atthe point where it was fraudulently repaired, and the device rolled over the plaintiff, seriously injuring him. [FN22] The courtheld that because there was fraud, the plaintiff, although not in privity, was entitled to recover. [FN23]

The case that let the products liability cat out of the bag is Statler v. George A. Ray Manufacturing Co. [FN24] In Statler, alarge coffee urn manufactured in a "battery of three" exploded, injuring two people and killing a third. [FN25] The court held,"(I)n the case of an article of an inherently dangerous nature a manufacturer may become liable for negligent constructionwhich, when added to the inherent character of the appliance, makes it imminently *914 dangerous, and causes or contributedto a resulting injury . . . ." [FN26] Statler is significant because it skirts privity for an ordinary product, a large coffee urn.



After extending liability to such a product, there are very few products that will not be subject to liability, and the privitydefense will be essentially eliminated.

The most important case in a historical analysis of the development of products liability is MacPherson v. Buick Motor Co.[FN27] MacPherson was decided by the New York Court of Appeals in 1916. [FN28] The plaintiff bought a Buick from aBuick dealer who had purchased it from the manufacturer. [FN29] While driving the car the plaintiff was thrown out andinjured when one of the wooden wheels broke. [FN30] On examination it was disclosed that the wheel was made of defectivewood. [FN31] After canvassing a large number of cases that deal with privity and the exceptions to privity, the court held asfollows:We hold . . . that the principle of Thomas v. Winchester is not limited to poisons, explosives, and things of like nature, tothings which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonablycertain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of theconsequences to be expected. If to the element of danger there is added knowledge that the thing will be used by personsother than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger isunder a duty to make it carefully. [FN32]

In MacPherson we see the consumption of the privity rule by its exceptions and the emergence of a new rule. [FN33]MacPherson *915 began a new era of liability based on negligence. Simply stated, if the manufacturer failed to exercise carein the design or manufacture of its product, it would be held liable under negligence. Foreseeability under negligencetrumped the old privity concept.

The next important case after MacPherson is Escola v. Coca-Cola Bottling Co. [FN34] This case was decided in 1944 by theSupreme Court of California. [FN35] A waitress went to the storage area to obtain a bottle of Coca-Cola, and when shepicked up the bottle, it exploded in her hand. [FN36] The court dealt with the problem of absence of control on the part of themanufacturer by applying res ipsa loquitor to the case. [FN37] Up to that point the case was rather routine. The importance ofEscola is Justice Traynor's concurring opinion where he says:(T)he manufacturer's negligence should no longer be singled out as the basis of a plaintiff's right to recover in cases like thepresent one. In my opinion it should now be recognized that a manufacturer incurs an absolute liability when an article thathe has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury tohuman beings. [FN38]

Justice Traynor explained his concurring opinion in the following terms:(P)ublic policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and healthinherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guardagainst the recurrence of others, as the public cannot. Those who suffer injury from defective products are unprepared tomeet its consequences. The cost of an injury and the loss of time or health may be an *916 overwhelming misfortune to theperson injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the publicas a cost of doing business. It is to the public interest to discourage the marketing of products having defects that are amenace to the public. . . . (I)t is to the public interest to place responsibility for whatever injury they may cause upon themanufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for it reaching the market.[FN39]

Justice Traynor had to wait eighteen years, until 1962, in order to turn his concurring opinion in Escola into law. Thisopportunity arrived in Greenman v. Yuba Power Products, Inc. [FN40] In Greenman, the plaintiff's wife had given him aShopsmith, "a combination power tool that could be used as a saw, a drill, and (a) wood lathe." [FN41] In 1957, while the



plaintiff was using his Shopsmith as a lathe for turning a large piece of wood, the wood suddenly flew off the lathe and hithim in the face, causing serious injury. [FN42] Justice Traynor used the case as an opportunity to implement his far-reachingconcept of strict liability for products. He said:The liability is not one governed by the law of contract warranties but by the law of strict liability and tort. Accordingly, rulesdefining and governing warranties that were developed to meet the needs of commercial transactions cannot properly beinvoked to govern the manufacturer's liability to those injured by their defective products unless those rules also serve thepurposes for which such liability is imposed. [FN43]

Justice Traynor explained his new doctrine of strict liability:*917 Implicit in the machine's presence on the market, however, was a representation that it would safely do the jobs forwhich it was built. Under these circumstances, it should not be controlling whether plaintiff selected the machine because ofthe statements in the brochure, or because of the machine's own appearance of excellence that belied the defect lurkingbeneath the surface, or because he merely assumed that it would safely do the jobs it was built to do. It should not becontrolling whether the details of the sales from manufacturer to retailer and from retailer to plaintiff's wife were such thatone or more of the implied warranties of the sales act arose. "The remedies of injured consumers ought not be made todepend upon the intricacies of the law of sales." To establish the manufacturer's liability it was sufficient that plaintiff provedthat he was injured while using the Shopsmith in a way it was intended to be used as a result of a defect in design andmanufacture of which plaintiff was not aware that made the Shopsmith unsafe for its intended use. [FN44]

The trial court's verdict in favor of the plaintiff and against the manufacturer was affirmed. [FN45]

Following closely on the heels of Greenman came section 402A of the Restatement (Second) of Torts. The Reporter for thatprovision was William Prosser. Section 402A provides:(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property issubject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller isengaged in the business of selling such a product and (b) it is expected to and does reach the user or consumer withoutsubstantial change in the condition in which it is sold. (2) The rule stated in *918 Subsection (1) applies although (a) theseller has exercised all possible care . . . (b) the user or consumer has not bought the product from or entered into anycontractual relation with the seller. [FN46]

Section 402A of the Restatement (Second) of Torts is the most successful section of the Restatement, having been cited over3000 times. [FN47]

Ten years after Greenman, the Supreme Court of California, in 1972, was met with a challenging case in Cronin v. J.B.E.Olson Corp. [FN48] In Cronin, the driver of a delivery van was hit in the back of the head by a bread tray that slippedforward because of a broken hasp. [FN49] This occurred while the driver was passing another vehicle and resulted in thebread van crashing. [FN50] The issue before the Cronin court was whether the product must have an unreasonably dangerousdefect for strict liability to apply. [FN51] Specifically, the question was whether section 402A's requirement that a product be"unreasonably dangerous" was part of California law, or whether for there to be strict liability in California the productmerely needed to be found defective. [FN52] After examining the issue carefully, the California Supreme Court held that theRestatement (Second) section 402A was not part of California law, and that the state's law of strict liability only required thatthe product be shown to be defective. [FN53] The court adopted this approach because unreasonably dangerous sounded ofnegligence, and negligence was more difficult for the injured consumer to prove than defect. [FN54] The court, however, leftopen the question of how "defect" is defined. [FN55]



*919 In 1978 the critical issue remaining was how to define defect. The courts have adopted three definitions for defect. Thewatershed California case of Barker v. Lull Engineering Co., Inc. [FN56] presents two of those definitions. In Barker, theplaintiff was injured while operating a forklift when the load he was lifting shifted and fell, hitting him as he jumped off theforklift trying to escape the falling lumber. [FN57] It was alleged that the forklift was defective because it lacked outriggersto stabilize the forklift, as well as seat belts and a rollbar. [FN58] The court continued where Cronin had left off:We have concluded from this review that a product is defective in design either (1) if the product has failed to perform assafely as the ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) if, in lightof the relevant factors discussed below, the benefits of the challenged design do not outweigh the risk of danger inherent insuch design. [FN59]

In regard to the burden of proof, the court held: "(O)nce the plaintiff makes a prima facie showing that the injury wasproximately caused by the product's design, the burden should appropriately shift to the defendant to prove, in light of therelevant factors, that the product is not defective." [FN60]

In Barker the California Supreme Court set forth two of the leading tests for design defect: one, the risk benefit test and, two,the consumer expectation test. The third test for design defect is negligence with imputed knowledge. This test wasdeveloped by the Supreme Court of Oregon in Phillips v. Kimwood Machine Co. [FN61] in 1974. In Phillips, the plaintiffwas injured while feeding fiberboard into a sanding machine. [FN62] The machine in question was a six-headed sander.[FN63] The top half of the machine had pinch rolls *920 which, when pressed down upon the fiberboard by springs, kept thesanding heads from forcefully ejecting the fiberboard from the machine. [FN64] On the day of the injury, plaintiff wasengaged in feeding the sheets of fiberboard into the sander. [FN65] The court stated: "(T)he machine regurgitated the piece offiberboard back at plaintiff, hitting him in the abdomen and causing him the injuries for which he now seeks compensation."[FN66] The plaintiff asserted that the sander was defective because it could not be operated without throwing panels ofmaterial being sanded back toward the operator, and because it did not contain any guards to protect the operator. ThePhillips court articulated the third test for design defect in the following language:The problem with strict liability of products has been one of limitation. No one wants absolute liability where all the articlehas to do is to cause injury. To impose liability there has to be something about the article which makes it dangerouslydefective without regard to whether the manufacturer was or was not at fault for such condition. A test for unreasonabledanger is therefore vital. A dangerously defective article would be one which a reasonable person would not put into thestream of commerce if he had knowledge of its harmful character. The test, therefore, is whether the seller would benegligent if he sold the article knowing of the risk involved. Strict liability imposes what amounts to constructive knowledgeof the condition of the product. [FN67]

During the period from 1964, the date of the adoption of section 402A of the Restatement (Second), to 1992, the date of thefirst draft of the Restatement (Third) of Torts: Products Liability section 2(b), there were no cases which said that strictliability for products was broken and required fixing. There were no cases that *921 said it was unworkable or that it was notthe appropriate standard of liability for product manufacturers. Just the opposite occurred. Section 402A was quoted in over3,000 cases, and those cases applied the concept of strict liability, as set out in the Restatement (Second) 402A, in a studiousmanner. [FN68] In short, there was no hue and cry for a new draft of strict products liability and certainly there was nosuggestion by the courts that it was biased and needed replacement. Only the manufacturing community objected to strictproducts liability, because it faced liability for the defective products it put into the market.

The history of products liability is that of a gradual removal of the hurdles [FN69] the injured consumer must clear and a shiftfrom a difficult standard to prove [FN70] to one that is less burdensome. [FN71] The goal was to enable the injured consumerto have her day in court. In rejecting 150 years of history, the Restatement (Third) returns to a negligence basis and erects a



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huge hurdle for victims: the reasonable alternative design requirement. [FN72]

III. A Call for a Restatement (Third) of Torts: Design DefectThe Restatement (Third) of Torts: Products Liability section 2(b), dealing with defectively designed products, has beenavailable in several drafts for approximately eight years, and in this period it has been rejected by the majority of courts thathave considered it while creating numerous serious problems. [FN73] It is unlikely the American Law Institute intendedsection 2(b) to be the final statement on defectively designed products. The time has come to rethink section 2(b) and theAmerican Law Institute's position on design defect.

*922 Numerous substantial reasons support the judicial rejection of this provision. First, the Restatement (Third) of Torts:Products Liability section 2(b) is misleading, inaccurate, and incomplete, because it does not rest on case law. [FN74] Over3,000 cases have cited the Restatement (Second) section 402A, [FN75] and it is the most widely cited section of theRestatement. Nevertheless, the Restatement (Third) neither evaluates nor critiques these precedential cases. Several scholarshave made this point. [FN76]

Second, the Restatement (Third) section 2(b) fails to accurately reflect the concept of strict liability. [FN77] Instead ofrestating strict liability, as developed under section 402A, section 2(b) delivers a radical concept of negligence and thereforemisrepresents the law. [FN78] The Restatement drafters limited the application of strict liability to manufacturing defects andchanged the strict liability into radical negligence in section 2(b). [FN79] With this action, the American Law Institutedismantled strict liability.

Third, the Restatement (Third) of Torts: Products Liability fails to deal with three epidemics: tobacco, alcohol, and handguns.[FN80] By requiring, in section 2(b), a plaintiff to show a "reasonable alternative design," the American Law Instituteensured that plaintiffs will be unsuccessful in products liability suits concerning tobacco, alcohol, or handguns. [FN81]Plaintiffs' suits will fail because, in tobacco, alcohol or handgun cases, there is no reasonable alternative design. [FN82]Certain handguns provide an exception, because computerized interlock systems, safety locks, or more substantialconstruction could improve their safety. [FN83] The *923 American Law Institute, always a leader in the field of legal ethics,passed up an opportunity to set the ethical and legal standard for dealing with these epidemics that take the lives of close to500,000 people a year.

Fourth, the Restatement (Third) of Torts: Products Liability triggers a reduction in accepted cases. It does this through theback door by requiring that the plaintiff show a "reasonable alternative design." This means that in almost every case theplaintiff's attorney must hire an expert or create a model of a reasonable alternative design before the plaintiff can go to court.[FN84] This has increased the price of every products liability case by, perhaps, $25,000 or more. Since plaintiff's attorneysin products cases tend to refuse cases worth less than $100,000, injured consumers are often left without a remedy.

Fifth, the Restatement (Third) continues to require proximate cause within the context of strict liability. This flawed analysismisleads attorneys, judges, and juries. Once the question of risk-utility has been answered by balancing various factors, thereis no further issue of proximate cause. [FN85] However, by inserting the question of proximate cause into strict liabilityanalysis, the American Law Institute lays a foundation that is sure to confuse everyone who relies upon the Restatement(Third), including attorneys who are bringing or defending such cases, judges who must decide whether the cases should goto juries, and the juries themselves.

Since the Restatement (Third) section 2(b) has not been adopted by the courts in a majority of the jurisdictions that haveconsidered it to date, it is time for it to be replaced by an accurate presentation of the law. [FN86] One of the earliest cases toreject the Restatement (Third) section 2(b) is Banks v. ICI Americas, Inc., [FN87] decided in 1994. The Georgia Supreme













Court considered a case of improperly labeled liquid drain cleaner and the question of whether *924 Georgia should applythe risk-utility test. [FN88] The court held that the risk-utility test was appropriate for Georgia, and although it considered theRestatement (Third) section 2(b), it did not find it to be appropriate or persuasive and delegated it to a minor footnote.[FN89] This was a dramatic critique by the Georgia Supreme Court of the persuasive power of section 2(b).

A second important case to reject the Restatement (Third) section 2(b) is Denney v. Ford Motor Co., [FN90] decided by theNew York Court of Appeals in 1995. In Denney, a woman was seriously injured when her Ford Bronco II rolled over as shebraked and swerved to avoid a deer in the highway. [FN91] She argued that the Ford Bronco II was defective and violated theUniform Commercial Code's provisions for implied warranty. [FN92] The court rejected the provisions of the Restatement(Third) section 2(b) and held that the product was not defective under the risk-utility test because it had high utility. [FN93]Although the Reporters for the Restatement (Third) had hoped that section 2(b) would subsume and obliterate the UniformCommercial Code (UCC), the New York Court of Appeals rejected that argument and instead held that the implied warrantyprovisions of the UCC were controlling. [FN94] The court held the Ford Bronco II violated the implied warranty provisionsof the UCC because it was not merchantable. [FN95]

Another important case that rejected section 2(b) is Potter v. Chicago Pneumatic Tool Co., [FN96] decided by theConnecticut Supreme Court in the spring of 1997. Potter is important because it carefully analyzed section 2(b) beforerejecting it based on local precedent. After examining state case law, the court held that the provisions of the Restatement(Third) section 2(b) did not reflect the law of Connecticut and therefore refused to follow it. [FN97] The Potter case has beenevaluated and criticized in extensive detail by *925 Professors Henderson and Twerski, the Reporters for the Restatement(Third) of Products. [FN98]

The Supreme Court of Kansas, in Delaney v. Deere & Co., [FN99] also considered section 2(b) and rejected it. The KansasSupreme Court looked at its precedent, held that the Restatement (Third) did not accurately reflect that precedent, andrejected the Restatement provision. [FN100]

The state judge's task [FN101] in reading the Restatement (Third) section 2(b) is to read the legal precedent in her jurisdictionand decide whether state precedent requires a disenfranchisement of strict liability and proof of a reasonable alternativedesign in every case. [FN102] The apparent purpose of the "reasonable alternative design" requirement is to frustrate theconsumers and prevent them from bringing suits that might cut into the profits of manufacturing America. [FN103] Anaccurate restatement of the law of design defect could assist the attorney, judge, and jury rather than mislead them withinaccurate provisions. [FN104]

*926 IV. An Examination of the Cases That Have Considered ReasonableAlternative Design Since Promulgation of the Restatement (Third) Section

2(b)The following is an analysis of cases that have discussed the term "reasonable alternative design" over the last eight years.[FN105] The first draft of the Restatement (Third) section 2(b) was published in 1994; the American Law Institutepromulgated the final version in 1997.

A. States That Have Rejected the Restatement (Third)'s Reasonable AlternativeDesign Requirement

1. CaliforniaLanguage in Arena v. Owens Corning, [FN106] suggests that a claimant in California has the choice among three tests fordesign defect: (1) consumer expectation test, (2) risk-utility, and (3) "failure to warn of known or knowable inherent dangers
















in the product." [FN107] Accordingly, this asbestos exposure case was tried under the "consumer expectation theory pursuantto plaintiff's express election." [FN108] The California Court of Appeals noted, "Whether or not the defendant is able todesign the product in a different way is irrelevant, as the Supreme Court neither requires nor allows proof of the existence ofa better design under the consumer expectation test." [FN109] The court concluded, "Although the proposed draft of theRestatement (Third) of Torts: Products Liability, rejects the consumer expectations test as an independent theory, ourSupreme Court declined an invitation to overrule the *927 test, and established it as an independent and alternative test for aproduct defect." [FN110]

2. MissouriIn Rodriguez v. Suzuki Motor Corp., [FN111] the plaintiff was injured while driving her Suzuki Samurai. The defendant,Suzuki Motor Corp., unsuccessfully argued for adoption of the reasonable alternative design test of the Restatement (Third)"as the substantive law of Missouri." [FN112] The court noted, "(T)he elements of a cause of action for design defect underthe Restatement (Third) are markedly different from those under the Restatement (Second)." [FN113] The court furtherdeclared, "Any further consideration of risk-utility was effectively foreclosed by the enactment (of) . . . Missouri's 1987 tortreform act, which, inter alia, codified section 402A of the Restatement (Second) of Torts." [FN114] Finally, the SupremeCourt of Missouri "declined the invitation to adopt the reasonable alternative design/risk-utility theory." [FN115]

In Leonard v. Bunton Co., [FN116] the plaintiff was injured in an attempt to clean a walk-behind lawnmower. [FN117] Thecourt rejected the defendant's motion for summary judgment. The court stated, "Missouri has adopted § 402A of theRestatement (Second) of Torts as its rule of strict liability." [FN118] It noted, "(The) consumer expectation test has beenembraced by some Missouri courts and rejected by others. . . . 'Unless a court can affirmatively say as a matter of law that thedesign renders a product unreasonably *928 dangerous, the question is generally one for the jury."' [FN119] The court did notmention the Restatement (Third). [FN120]

3. MarylandIn Nemir v. Mitsubishi Motors Sales, [FN121] the plaintiff suffered injuries when the seatbelt of a 1991 Dodge Stealth failed.[FN122] The court granted Mitsubishi's motion for summary judgment. [FN123] Rather than adopting the new Restatement(Third), the court chose to adhere to Maryland precedent [FN124] and the Restatement (Second), stating, "For a seller to beliable under § 402A, the product must be both in a 'defective condition' and 'unreasonably dangerous' at the time that it isplaced on the market by the seller." [FN125] The opinion did not mention the Restatement (Third) section 2(b). [FN126]

4. PennsylvaniaIn Weiner v. American Honda Motor Co., [FN127] the plaintiff was injured when a canister of nitrous oxide slid forwardfrom the back of his 1992 Acura Integra hatchback and pinned him during a single car accident. [FN128] The courtconcluded as a matter of law that the design of the Acura was not unreasonably dangerous. [FN129] Declaring that claims ofdesign defect in Pennsylvania are governed by the Restatement (Second) of Torts section 402A, [FN130] *929 the court citedsection 402A in its entirety [FN131] and did not mention the Restatement (Third). [FN132] The Pennsylvania Supreme Courtheld:(T)he question of whether a product is "unreasonably dangerous" is a question of law to be decided by the trial court, theresolution of which depends upon considerations of social policy, . . . including weighing factors such as "the gravity of thedanger posed by the challenged design; the likelihood that such danger would occur; the mechanical feasibility of a saferdesign; and the adverse consequences to the product and to the consumer that would result from a safer design." [FN133]

In Riley v. Warren Manufacturing, Inc., [FN134] a young child received serious injuries after placing his hand into themoving parts of a feed trailer. [FN135] Defendant manufacturer won a directed verdict because "the benefits of the trailer






were clear, no feasible alternatives were shown to exist, the trailer was not defective, and there was no evidence that a risk ofinjury existed for intended users using the machine for its intended use." [FN136] The court stated, "In products liabilitycases, § 402A of the Restatement (Second) of Torts has been adopted as the law of this Commonwealth." [FN137] The courtdid not mention the Restatement (Third). [FN138]

*930 B. States That Hold Reasonable Alternative Design Is One of SeveralFactors to Consider in Determining Whether a Product Design Is Defective

1. ColoradoIn Barton v. Adams Rental, Inc., [FN139] the plaintiff was injured while working with an electric sewer auger. [FN140] Theevidence given at trial was insufficient for the jury to determine that the product was defective under Colorado's risk-utilityanalysis. [FN141] Although the case did not turn upon a reasonable alternative design, the court followed Armentrout v.FMC Corp. [FN142] by saying that a "feasible design alternative may be a factor in the risk-benefit analysis." [FN143] Thecourt did not mention the Restatement (Third). [FN144]

2. New YorkIn Garnsey v. Morbank Industries, Inc., [FN145] the plaintiff received injuries when he stuck his hand into a wood chipper inthe course of his employment. [FN146] The plaintiff made out a prima facie case by proposing five safer designs for thewood chipper. [FN147] The court stated, "Design defect claims in New York are determined using a risk/utility analysis."[FN148] Further, "In order to make out a prima facie case of strict product liability for design defects, the plaintiff must showthat the product 'was not reasonably safe and that the defective design was a substantial factor in causing (the) plaintiff'sinjury."' [FN149] Finally, the court noted, "The issue of whether a product is unreasonably dangerous is generally one for*931 the jury to decide, taking into account such factors as alternative designs, their costs, and the usefulness of the product."[FN150]

In Urena v. Biro Manufacturing Co., [FN151] the plaintiff was injured while using a meat cutting machine. [FN152] Denyingthe defendants' motion for summary judgment, the court stated, "Alternative design evidence is only one piece of theequation which a jury may take into account in determining whether the risk outweighed the utility of the product." [FN153]

In Tompkins v. R.J. Reynolds Tobacco Co., [FN154] the plaintiff allegedly died of lung cancer from smoking Camelcigarettes. [FN155] The court granted summary judgment to the defense on the basis that the "plaintiffs failed to meet theirburden pertaining to evidence of a feasible, alternative design." [FN156] However, the court suggested that an alternativedesign is merely one of several factors to consider. The court cited the following seven Denny v. Ford Motor Co. [FN157]factors to consider in the "utility/risk balancing test":(1) the utility of the product to the public as a whole; (2) the utility of the product to the individual user; (3) the likelihoodthat the product will cause injury; (4) the availability of a safer design; (5) the potential for designing and manufacturing theproduct so that it is safer but remains functional and reasonably priced; (6) the degree of awareness of the product's potentialdanger that can be reasonably attributed to the plaintiff; and (7) the manufacturer's ability to spread the cost of any safetyrelated design changes. [FN158]

*932 3. OregonIn McCathern v. Toyota Motor Corp., [FN159] the plaintiff was injured during the rollover of her 1994 Toyota 4Runner.[FN160] The Oregon Court of Appeals affirmed a jury verdict in favor of the plaintiff. [FN161] The court stated, "Oregon isone of roughly a dozen jurisdictions that adhere to the consumer expectation test as the standard for determining strictproducts liability in manufacturing and design defect cases." [FN162] The consumer expectation test "was derived fromComment i of section 402A of the Restatement (Second) of Torts (1965)." [FN163] The court then bifurcated the consumer





expectation test into (1) a representational approach, and (2) a consumer risk-utility approach. [FN164] The court reasonedthat proof of a reasonable alternative design is essential to the consumer risk-utility approach, but immaterial to therepresentational approach. [FN165] This ensures that an Oregon plaintiff is able to make out a prima facie case of designdefect without presenting a reasonable alternative design.

C. States That Mention the Reasonable Alternative Design Requirement FavorablyAlthough several courts mention reasonable alternative design favorably, as of October 1, 2002, none had adopted it as arequirement.

1. GeorgiaIn Jones v. NordicTrack, Inc. [FN166] the plaintiff was injured when she fell against her stationary indoor ski exerciser andsevered two veins in her thigh. [FN167] The issue presented was whether a product *933 has to be in use at the time of theinjury for a defendant to be held liable for defective design, and the court held in the negative. [FN168] The court cited Banksfor the proposition that(t)he heart of a design defect case is the reasonableness of selecting from among alternative product designs and adopting thesafest feasible one. . . . Consequently, the appropriate analysis does not depend on the use of the product, as that may benarrowly or broadly defined, but rather includes the consideration of whether the defendant failed to adopt a reasonablealternative design which would have reduced the foreseeable risks of harm presented by the product. [FN169]

The court did not discuss section 2(b) of the Restatement (Third).

2. New JerseyIn Green v. General Motors Corp., [FN170] the plaintiff was injured when the rear roof of his T-Top Camaro collapsed.[FN171] The court required the plaintiff to propose a reasonable alternative design. [FN172] The plaintiff met this burden byhaving his expert testify as to two alternative designs for the rear roof of a T-Top Camaro. [FN173] The court stated that "indetermining whether the Camaro was defective, a jury must determine the risks and alternatives that should have been knownto a reasonable manufacturer, and then assess whether the manufacturer discharged its duty to provide a 'reasonably fit,suitable and safe' vehicle." [FN174] The court continued *934 by noting that "the jury employs a risk-utility analysis" todetermine whether the manufacturer discharged this duty. [FN175] The court then stated that, although the classical statementof the risk-utility analysis as enumerated in Cepeda v. Cumberland Engineering Co. [FN176] involves seven factors, "theprevalent view is that, unless one or more of the other factors might be relevant in a particular case, the issue upon whichmost claims will turn is the proof by the plaintiff of a 'reasonable alternative design."' [FN177] The court cited theRestatement (Third) for this proposition. [FN178] Footnote four of Green favorably cites section 2(b) of the Restatement(Third). [FN179]

In Lewis v. American Cyanamid Co., [FN180] the plaintiff was burned when an indoor pesticide fogger exploded in thekitchen. [FN181] The court ruled in favor of the plaintiff by affirming the reversal of the defendant's judgmentnotwithstanding the verdict (JNOV). [FN182] The court cited comment f of section 2 of the Restatement (Third), whichstates, "'To establish a prima facie case of defect, the plaintiff must prove the availability of a technologically feasible andpractical alternative design that would have reduced or prevented the plaintiff's harm."' [FN183] The plaintiff was able tocarry this burden. [FN184]

In Smith v. Keller Ladder Co., [FN185] the plaintiff was injured while using an extension ladder manufactured by thedefendant. [FN186] The plaintiff failed to establish a reasonably feasible alternative design for the ladder. [FN187] This courtheld that the defendant's JNOV *935 motion was properly granted. [FN188] The court cited New Jersey precedent for the






proposition that(u)nless there is some basis for a jury to find that the risks involved in a product's use outweigh its utility even though there isno reasonably feasible alternative design, a plaintiff in a design-defect case is required to show the existence of a "safe andreasonably feasible alternative to (the) defendant's product." [FN189]

3. MichiganIn Hollister v. Dayton Hudson Corp., [FN190] the plaintiff suffered extensive burn injuries when her blouse caught fire aftercoming in contact with a kitchen stove. [FN191] The court granted the defendant's motion for summary judgment on thedesign defect issue. [FN192] The court stated, "Although Michigan has not adopted the Proposed Final Draft of theRestatement (Third) of Torts: Product Liability § 2 (April 1, 1997), the Michigan risk-utility test is consistent with theprinciples of section 2(b)." [FN193] Michigan considers its risk-utility test to be a pure negligence test. [FN194] "UnderMichigan's risk-utility test, a plaintiff does not establish a prima facie case of product design defect if evidence of areasonable alternative design, available and practicable at the time of distribution of defendant's product, is not produced."[FN195] The Michigan six-part risk-utility test requires the plaintiff to show*936 (1) that the severity of her injury was foreseeable by the manufacturer; (2) that the likelihood of occurrence of herinjury was foreseeable by the manufacturer at the time of distribution of the product; (3) that there was a reasonablealternative design available; (4) that the available reasonable alternative design was practicable; (5) that the available andpracticable reasonable alternative design would have reduced the foreseeable risk of harm posed by defendant's product; and(6) that omission of the available and practicable reasonable alternative design rendered defendant's product not reasonablysafe. [FN196]

D. States That Have Incorporated the Restatement (Third)'s ReasonableAlternative Design Requirement into Their Statutes

1. LouisianaIn Lawrence v. General Motors Corp., [FN197] the plaintiff was injured when her used 1987 Pontiac Bonneville suddenlyaccelerated into a tree. [FN198] The court held for the defendant manufacturer, citing Louisiana's codification of thereasonable alternative design requirement. [FN199]A product is unreasonably dangerous in design, if, at the time the product left its manufacturer's control: (1) (t)here existed analternative design for the product that was capable of preventing the claimant's damage; and (2) the likelihood that theproduct's design would cause the claimant's damage and the gravity of that damage outweighed the burden on themanufacturer of adopting such *937 alternative design and the adverse effect, if any . . . on the utility of the product . . . .[FN200]

Under this statute, the plaintiff's evidence was insufficient as a matter of law to support a finding of design defect. [FN201]

2. TexasTexas has codified the reasonable alternative design requirement in section 82.005(a) of the Texas Civil Practice andRemedies Code, which states: "(The) burden is on the claimant to prove by a preponderance of the evidence that: (1) therewas a safer alternative design; and (2) the defect was a producing cause of the personal injury, property damage, or death forwhich the claimant seeks recovery." [FN202] Despite this clear statutory language, subsequent case law has been less thanuniform.

In Smith v. Aqua-Flow, [FN203] the plaintiff family sued the defendant manufacturer after six-year-old Stephanie Smithdrowned as a result of her hair becoming entangled in their spa's plastic intake cover. [FN204] Although the Smith's expertproposed an alternative design (i.e., an automatic shut-off valve), the court held that the Smiths failed to make out their prima





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facie case because they failed to show that the design was both technologically and economically feasible. [FN205] The courtattempted to reconcile the Restatement (Second) with the Restatement (Third) because "Texas has adopted the Restatement(Second) of Torts section 402A." [FN206] Ultimately, however, the court required the plaintiff to prove a reasonablealternative design in accordance with the Texas Code though the court did not explicitly cite the Restatement (Third).[FN207] The court finally cited American Tobacco Co. v. Grinnell [FN208] for the proposition that "(i)f no evidence isoffered that a safer design *938 existed, the product is not unreasonably dangerous as a matter of law." [FN209]

In Uniroyal Goodrich Tire Co. v. Martinez, [FN210] the plaintiff was injured when a sixteen-inch Goodrich tire that he wasmounting on a 16.5 inch rim exploded. [FN211] The court affirmed a jury verdict in favor of the plaintiff. [FN212] In afootnote, the court noted that "(a)lthough not applicable to the present case, the Texas Legislature has recently codified the'reasonably safe alternative' requirement." [FN213] The court was ambiguous in its analysis, stating:While there is language in Turner suggesting that whether a safer alternative design exists is merely one of the factors to beweighed by the jury, we made clear in Caterpillar that a safer alternative is a prerequisite to a finding of design defect. Ourapproach in Caterpillar is reflected in the new Restatement. [FN214]

However, the court later said, "We agree with the new Restatement that warnings and safer alternative designs are factors,among others, for the jury to consider in determining whether the product as designed is reasonably safe." [FN215] Althoughthe court frequently cited to the Restatement (Third), they did not clarify whether the reasonable alternative designrequirement is merely one factor or the primary factor to consider in a design defect case.

In Hayles v. General Motors Corp., [FN216] a federal district court case, the plaintiff was injured in a single car accident.[FN217] She alleged a defect in the air bag and seat belt systems of her 1995 Chevrolet Silverado were responsible for herinjuries. [FN218] The court stated, "Texas has adopted the strict products liability standard set *939 forth in section 402A ofthe Restatement (Second) of Torts." [FN219] The plaintiff did not present an expert witness. [FN220] General Motors'smotion for summary judgment was granted because the plaintiff "failed to raise a genuine disputed issue of material fact thather vehicle sustained the type of impact necessary to deploy the air bag." [FN221] The court did not mention the Restatement(Third) or the requirement of a reasonable alternative design.

The Fifth Circuit Court of Appeals clarified the law in Smith v. Louisville Ladder Co. [FN222] The plaintiff was injuredfrom falling off a ladder. [FN223] The Fifth Circuit reversed the jury verdict in favor of the plaintiff because the plaintiff hadfailed to show the existence of a safer alternative design. [FN224] The court cited the Texas statute as being on point andrequiring proof of a reasonable alternative design. [FN225]

3. MississippiWatkins v. Telsmith, Inc. [FN226] dealt with the requirements of Daubert. [FN227] In dicta, the court noted a Mississippiproducts liability statute that defines a reasonable alternative design as "'a design that would have to a reasonable probabilityprevented the harm without impairing the utility, usefulness, practicality or desirability of the product to users orconsumers."' [FN228]

V. ConclusionAs the appendix makes clear, [FN229] the American Law Institute has been striving to embrace manufacturers in general andthe tobacco industry in particular. [FN230] The Restatement (Third), section 2 reads like a wish list for manufacturingAmerica and immunizes *940 tobacco manufacturers from liability. [FN231] The Supreme Court of Iowa has recently madethis bias abundantly clear. In Wright v. Brook Group Limited, [FN232] where the defendant was a tobacco manufacturer, thecourt adopted sections 1 and 2 of the Restatement (Third) and foreclosed the possibility that the manufacturer of the most









dangerous product--tobacco--can be successfully sued for design defect. [FN233] The court noted that under this standard,the consumer can not recover unless she can prove that a reasonable alternative design exists that would have reduced oravoided the foreseeable risk of harm. [FN234]

This exemplifies the need for an accurate Restatement of design defect law: one that does not insulate tobacco from liabilityand one that accurately reflects the developments in legal theory over the last 150 years. A new Restatement (Third) of Torts:Design Defect should rest on over 3,000 cases decided under the Restatement (Second) section 402A. It should be a truerestatement of existing case law, not tort reform in the guise of a battle plan for manufacturing America. [FN235] TheAmerican Law Institute should not permit the Restatement to insulate the manufacturers of the most dangerous products onthe market, nor to shift from strict liability to negligence without a careful consideration of the foundational issues.

*941 Appendix AThe following materials are from Clifford A. Rieders and Nicholas F. Lorenzo, Jr., Pennsylvania Trial Lawyers PublicationNo. 188-1999, reprinted in The Barrester [FN236]:On Nov. 20, 1991, Roswell B. Perkins, President of the American Law Institute, wrote to me and other members of theconsultative group, indicating that Geoffrey Hazard had prepared a "perspective" for fund-raising purposes which was sent todonors who might be interested in the (Enterprise Liability P)roject. Illustrative letters to foundations were also enclosed . . .and to the RJR - Nabisco Foundation.The solicitation letter stated, in relevant part, as follows:Over the last 25 years liability for injuries resulting from services and products has greatly expanded in scope, cost, directimpact, and influence on activities of professionals and businesses. This is true of tort liability for personal injuries generally.It is true particularly with respect to the practice of medicine, the provision of health care by hospitals, medical clinics andother providers, and the development, manufacture and sale of health care products such as vaccines and drugs. The exposureto risk and losses from liability in these activities directly affects myriad decisions whether to continue such activities, andhow those activities are pursued if undertaken. It is familiar that "defensive medicine" is now widespread in other sectorswithin and beyond the health care system.*942 A secondary consequence of these risks and losses is escalation of liability insurance rates, a phenomenon also wellrecognized with respect to the activities of health care services and providers. On the other side of the ledger is the fact thatthe availability of compensation for losses from such injuries is unsystematic and often fortuitous. In many instances liabilityis imposed even where there is coverage through "first person" insurance. In other instances there may be no privateinsurance against injuries and only a weak "safety net" by way of public health services. The present tort liability systemprovides large compensation to a small number of victims, but entails very high transaction costs, notably litigation costs andfees.

. . . September 12, 1986.It is clear that the intended purpose of the Enterprise Liability Project and the subsequent Restatement development was torestrict the tort law based upon an industry perception that compensation to victims was bad for doctors and manufacturers,and raises insurance costs.Witness the language in the letter to RJR - Nabisco Foundation:Over the last 25 years liability for injuries resulting from services and products has greatly expanded in scope, cost, directimpact, and influence on activities of professionals and businesses. The exposure to risk and losses from liability in theseactivities directly affects myriad decisions whether to continue such activities, and how those activities are pursued ifundertaken. It is familiar that "defensive medicine" and "orphan drugs" are now widespread phenomena; similar responses to*943 liability for personal injury are widespread in all fields of enterprise.A secondary consequence of these risks and losses is escalation of liability insurance rates, a phenomenon also well




recognized. In many situations liability insurance coverage has been drastically reduced or becomes simply unavailable.These developments constitute an immediate deterrent to pursuing activities that entail tort liability risk. It is commonknowledge that many businesses presently have had to close or radically restrict their operations on this account.Professionals in some fields have withdrawn from certain types of practice. All of this is an enormous loss to our economyand to security.On the other side of the ledger is the fact that the availability of compensation for losses from such injuries is unsystematicand often fortuitous. In many instances liability is imposed even where there is coverage through "first person" insurance. Itappears that most injured persons have some kind of insurance available to them, health or accident insurance or liabilityinsurance proceeds. There is little legal or financial coordination of such coverages, and many injured persons discover thatthey have quite inadequate provision for medical care for injuries. . . . Present tort liability law provides large compensationto a small number of victims, but entails very high transaction costs, notably litigation costs and fees.Thus, the present situation in personal injury law - it cannot be called a "system" - is such that there is both chilling risk oftort liability for enterprises, on one hand, and, on the other hand, chilling fear on the part of individuals that there will beinadequate compensation for real and serious losses.*944 Letter to Mr. John L. Bacon, December 10, 1987.There was absolutely no attempt to restate the law or study it empirically or systematically, but rather to change the law toplease the wishes of a particular funding constituency.

[FNa1]. Professor of Law, Emory University School of Law. B.A. 1964, Washington and Jefferson College; J.D. 1967,Vanderbilt University School of Law; LL.M. 1968, S.J.D. 1979, University of Wisconsin Law School.

[FNaa1]. Law Clerk to the Honorable Ronald E. Ginsberg, State Court of Chatham County, Georgia; Emory UniversitySchool of Law, J.D. 2002; University of Virginia, B.A. 1998.

[FN1]. Restatement (Third) of Torts: Products Liability § 2(b) (1998).

[FN2]. The Iowa Supreme Court is an exception. In 2002, it adopted section 2(b) to insulate tobacco manufacturers fromliability. Wright v. Brooke Group Ltd., 652 N.W.2d 159, 178-83 (Iowa 2002); see infra notes 232-34 and accompanying text.


[FN4]. Id.

[FN5]. Y.B. 5 Edw. 4, fol. 7, pl. 18 (1466).

[FN6]. Id.

[FN7]. See MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916).

[FN8]. 152 Eng. Rep. 402 (Ex. 1842).

[FN9]. Id. at 407.

[FN10]. 6 N.Y. 397 (N.Y. 1852).

[FN11]. Id. at 405.





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[FN12]. Id.

[FN13]. Id. at 408-09.

[FN14]. 2 M. & W. 519.

[FN15]. 56 N.Y. 124 (N.Y. 1874).

[FN16]. Id. at 128.

[FN17]. Id. at 124.

[FN18]. Id. at 126.

[FN19]. Id.

[FN20]. 75 N.E. 1098 (N.Y. 1905).

[FN21]. Id. at 1099.

[FN22]. Id.

[FN23]. Id. at 1102.

[FN24]. 88 N.E. 1063 (N.Y. 1909).

[FN25]. Id. at 1064.

[FN26]. Id. at 1064-65.

[FN27]. 111 N.E. 1050 (N.Y. 1916).

[FN28]. Id.

[FN29]. Id. at 1051.

[FN30]. Id.

[FN31]. Id.

[FN32]. Id.

[FN33]. See id.

[FN34]. 150 P.2d 436 (Cal. 1944).

[FN35]. Id.

[FN36]. Id. at 437 (Traynor, J., concurring).












[FN37]. Id. at 438.

[FN38]. Id. at 440 (Traynor, J., concurring).

[FN39]. Id. at 440-41.

[FN40]. 377 P.2d 897 (Cal. 1962).

[FN41]. Id. at 898.

[FN42]. Id.

[FN43]. Id. at 901.

[FN44]. Id. (internal citations omitted).

[FN45]. Id. at 902.

[FN46]. Restatement (Second) of Torts § 402A (1965).

[FN47]. See James A. Henderson, Jr. & Aaron D. Twerski, A Proposed Revision of Section 402A of the Restatement(Second) of Torts, 77 Cornell L. Rev. 1512, 1512 n.1 (1992).

[FN48]. 501 P.2d 1153 (Cal. 1972).

[FN49]. Id. at 1155.

[FN50]. Id.

[FN51]. Id. at 1156.

[FN52]. Id. at 1163.

[FN53]. Id.

[FN54]. Id.

[FN55]. Id.

[FN56]. 573 P.2d 443 (Cal. 1978).

[FN57]. Id. at 445.

[FN58]. Id. at 447.

[FN59]. Id. at 446.

[FN60]. Id. at 455.

[FN61]. 525 P.2d 1033 (Or. 1974).

















[FN62]. Id. at 1134.

[FN63]. Id.

[FN64]. Id.

[FN65]. Id.

[FN66]. Id.

[FN67]. Id. at 1036.

[FN68]. Henderson & Twerski, supra note 47, at 1512 n.1.

[FN69]. Hurdles such as privity and warranty.

[FN70]. The negligence standard was difficult to prove in the products context. See supra text accompanying notes 27-33.

[FN71]. The strict products liability standard was easier to prove. See supra text accompanying notes 34-55.


[FN73]. Restatement (Third) of Torts: Products Liability (Tentative Draft No. 1, 1994).

[FN74]. Frank J. Vandall, Constructing a Roof Before the Foundation is Prepared: The Restatement (Third) of Torts:Products Liability Section 2(b) Design Defect, 30 U. Mich. J.L. Reform 261, 273 (1997).

[FN75]. See Henderson & Twerski, supra note 47, at 1512 n.1.

[FN76]. See Vandall, supra note 74, at 273 n.85.

[FN77]. Id. at 266.

[FN78]. Id.

[FN79]. Id. at 266-67. Radical negligence has a higher standard than negligence because R.A.D. must be shown.

[FN80]. Frank J. Vandall, The Restatement (Third) of Torts, Products Liability, Section 2(b): Design Defect, 68 Temp. L.Rev. 167, 193 (1995).

[FN81]. Id.

[FN82]. Id. at 193-95.

[FN83]. Frank J. Vandall, O.K. Corral II: Policy Issues in Municipal suits Against Gun Manufacturers, 44 Vill. L. Rev. 547,55-55 (1999).

[FN84]. Id. at 277.










[FN85]. Id. at 278-79.

[FN86]. Four jurisdictions expressly reject the Restatement (Third) section 2(b). See infra Part IV.A. Three jurisdictionsapprove of the Restatement (Third) section 2(b) by common law and three by statute. See infra Part IV.C. and D.

[FN87]. 450 S.E.2d 671 (Ga. 1994).

[FN88]. Id. at 673-75.

[FN89]. Banks v. I.C.I. Americas, Inc., 469 S.E.2d 171 (Ga. 1996).

[FN90]. 662 N.E.2d 730 (N.Y. 1995).

[FN91]. Id. at 731.

[FN92]. Id.

[FN93]. Id. at 738-39.

[FN94]. Id. at 734.

[FN95]. Id.

[FN96]. 694 A.2d 1319 (Conn. 1997).

[FN97]. Id. at 1330-33.

[FN98]. Professors Henderson and Twerski, Reporters for the Restatement (Third) of Torts: Products Liability, argue that theConnecticut Supreme Court misread the facts and made a mistake in legal analysis. See James A. Henderson, Jr. & Aaron D.Twerski, Achieving Consensus on Defective Product Design, 83 Cornell L. Rev. 867, 908-11 (1998).

[FN99]. 999 P.2d 930 (Kan. 2000).

[FN100]. Id. at 943-46.

[FN101]. The state judge's task in reading the Restatement (Third) section 2(b) is similar to the plight of the captain in themovie Titanic. The movie Titanic was wonderful because it was a great love story between two very attractive people. It wasalso an excellent movie because it portrayed the poor Irish steerage passengers who were locked below so that they would notinterfere with or encumber the wealthy passengers on the upper decks of the ship. One of the most disturbing moments in themovie was the depiction of the plight of the poor Irish passengers when they tried to escape from the sinking ship. Theycould not reach the lifeboats because the gates to their section of the boat were locked. Titanic (Twentieth Century Fox1997).

[FN102]. Frank J. Vandall, State Judges Should Reject the Reasonable Alternative Design Standard of Restatement (Third),Products Liability, Section 2(b), 8 Kan. J.L. & Pub. Pol'y 62, 63-64 (1998).

[FN103]. The reasonable alternative design requirement was implanted into the Restatement (Third) for the same reason thatthe gate was placed in the Titanic. The purpose of the gate was to keep the poor Irish steerage passengers separated from the


















captains of industry who traveled on the upper levels of the Titanic.

[FN104]. The issue for the judge in reading the Restatement (Third) section 2(b) is whether she wants to be remembered, likethe captain of the Titanic, as someone who blocked the steerage passengers from getting to the lifeboats or whether she wantsto be remembered as someone who did her job-- analyzed the precedent in her jurisdiction and applied it to the specific casein front of her.

[FN105]. The LEXIS search of "reasonable alternative design" was conducted on October 1, 2002. The search covers theperiod between 1994, the date of the first draft of the Restatement (Third) of Torts: Products Liability section 2(b), andOctober 1, 2002.

[FN106]. 63 Cal. App. 4th 1178 (Ct. App. 1998).

[FN107]. Id. at 1185.

[FN108]. Id.

[FN109]. Id. at 1187 (citing Soule v. Gen. Motors Corp., 882 P.2d 298, 308 (Cal. 1994)).

[FN110]. Id. at 1185-86 (citations omitted).

[FN111]. 996 S.W.2d 47 (Mo. 1999).

[FN112]. Id. at 64.

[FN113]. Id. at 65.

[FN114]. Id.

[FN115]. Id.

[FN116]. 925 F. Supp. 637 (E.D. Mo. 1997).

[FN117]. Id. at 639-40.

[FN118]. Id. at 641 (citations omitted).

[FN119]. Id. at 642 (quoting Pree v. Brunswick Corp., 983 F.2d 863, 866 (8th Cir. 1993) (citing Nesselrode v. ExecutiveBeechcraft, Inc., 70 S.W.2d 371, 378 (Mo. 1986))).

[FN120]. See id. at 637-45.

[FN121]. 60 F. Supp. 2d. 660 (E.D. Mich. 1999) aff'd in part, rev'd in part, per curium, No. 99-1907, 2001 WL 223775 (6thCir. Mar. 2, 2001).

[FN122]. Id. at 663.

[FN123]. Id. at 677.





















[FN124]. Although suit was filed in Michigan, Maryland law applied. Id. at 673.

[FN125]. Id. (quoting Phipps v. Gen. Motors Corp., 363 A.2d 955, 959 (Md. 1976)).

[FN126]. See id. at 660-79.

[FN127]. 718 A.2d 305 (Pa. Super. Ct. 1998).

[FN128]. Id. at 306.

[FN129]. Id. at 310.

[FN130]. Id. at 307.

[FN131]. Id. at 307 n.3 (citing Restatement (Second) of Torts § 402A (1965)).

[FN132]. See id. at 305-11.

[FN133]. Id. at 308 (quoting Riley v. Warren Mfg., Inc., 688 A.2d 221, 225 (Pa. Super. Ct. 1997)).

[FN134]. 688 A.2d 221 (Pa. Super. Ct. 1997).

[FN135]. Id. at 223.

[FN136]. Id. at 230.

[FN137]. Id. at 324 (citing Webb v. Zern, 220 A.2d 853 (Pa. 1966)).

[FN138]. See id. at 221-30.

[FN139]. 938 P.2d 532 (Colo. 1997).

[FN140]. Id. at 534.

[FN141]. Id. at 537, 540.

[FN142]. 842 P.2d 175 (Colo. 1992).

[FN143]. Barton, 938 P.2d at 537 n.7 (citing Armentrout v. FMC Corp., 842 P.2d 175 (Colo. 1992)).

[FN144]. See id. at 532-40.

[FN145]. 971 F. Supp. 668 (N.D.N.Y. 1997).

[FN146]. Id. at 670.

[FN147]. Id.

[FN148]. Id. at 671.


























[FN149]. Id. (quoting Parsons v. Honeywell, Inc., 929 F.2d 901, 905 (2d Cir. 1991)).

[FN150]. Id. (citing Urena v. Biro Mfg. Co., 114 F.3d 359, 364 (2d Cir. 1997)).

[FN151]. 114 F.3d 359 (2d Cir. 1997).

[FN152]. Id. at 361.

[FN153]. Id. at 365.

[FN154]. 92 F. Supp. 2d 70 (N.D.N.Y. 2000).

[FN155]. Id. at 73.

[FN156]. Id. at 85.

[FN157]. See supra text accompanying notes 90-95.

[FN158]. Tompkins, 92 F. Supp. 2d at 84. (citing Denny v. Ford Motor Co., 87 N.Y.2d 248, 257 (N.Y. 1995)).

[FN159]. 985 P.2d 804 (Or. Ct. App. 1999).

[FN160]. Id. at 807.

[FN161]. Id. at 827.

[FN162]. Id. at 809.

[FN163]. Id.

[FN164]. Id. at 810.

[FN165]. Id. at 811.

[FN166]. 274 Ga. 115, 550 S.E.2d 101 (2001).

[FN167]. Jones, 274 Ga. at 116, 550 S.E.2d at 102.

[FN168]. Jones, 274 Ga. at 116-18, 550 S.E.2d at 102-04.

[FN169]. Jones, 274 Ga. at 118, 550 S.W.2d at 103 (citing Restatement (Third) of Torts: Products Liability § 2(b) (1998)).But in two other Georgia cases, the court cites to Banks v. I.C.I. in adopting the risk-utility test and refusing to adopt aspecific list of factors. Ogletree v. Navistar Int'l Transp. Corp., 269 Ga. 443, 444-46, 500 S.E.2d 570, 570-72 (1998); Bryantv. Hoffmann-LaRoche, Inc., 262 Ga. App. 401, 406, 408, 585 S.E.2d 723, 728, 730 (2003) (discussing design defect inregard to a drug).

[FN170]. 709 A.2d 205 (N.J. Super. Ct. App. Div. 1998).

[FN171]. Id. at 207.




























[FN172]. Id. at 213.

[FN173]. Id. at 213-14.

[FN174]. Id. at 210 (citing Suter v. San Angelo Foundry Mach. Co., 81 N.J. 150, 169 (N.J. 1979)).

[FN175]. Id. (citing Jurado v. W. Gear Works, 131 N.J. 375, 385 (N.J. 1993)).

[FN176]. 386 A.2d 816 (N.J. 1978).

[FN177]. Green, 709 A.2d at 210.

[FN178]. Id.

[FN179]. Id.

[FN180]. 715 A.2d 967 (N.J. 1998).

[FN181]. Id. at 970-71.

[FN182]. Id. at 971-72.

[FN183]. Id. at 975 (quoting Restatement (Third) of Torts: Products Liability § 2 cmt. f (proposed final draft)).

[FN184]. Id.

[FN185]. 645 A.2d 1269 (N.J. Super. Ct. App. Div. 1994).

[FN186]. Id. at 1270.

[FN187]. Id.

[FN188]. Id.

[FN189]. Id. at 1271 (quoting Macri v. Ames McDonough Co., 512 A.2d 548, 551 (N.J. Super. Ct. App. Div. 1986)).

[FN190]. 5 F. Supp. 2d 530 (E.D. Mich. 1998) aff'd in part, 201 F.3d. 731 (6th Cir. 2000).

[FN191]. Id. at 535.

[FN192]. Id. at 536.

[FN193]. Id. at 533.

[FN194]. Id. at 531 (citing Prentis v. Yale Mfg. Co., 365 N.W.2d 176 (Mich. 1984)).

[FN195]. Id. at 534 (citing Owens v. Allis Chalmers Corp., 326 N.W.2d 372 (Mich. 1982)).

[FN196]. Id. at 535.



























[FN197]. 73 F.3d 587, 590 (5th Cir. 1996).

[FN198]. Id. at 588.

[FN199]. Id. at 590.

[FN200]. La. Rev. Stat. Ann. § 2800.56 (West 1995).

[FN201]. Lawrence, 73 F.3d at 590.

[FN202]. Tex. Civ. Prac. & Rem. Code Ann. § 82.005(a) (Vernon 1997).

[FN203]. 23 S.W.2d. 473 (Tex. App. 2000).

[FN204]. Id. at 475.

[FN205]. Id. at 478.

[FN206]. Id. at 476.

[FN207]. Id. at 478; see supra text accompanying note 202.

[FN208]. 951 S.W.2d 420, 433 (Tex. 1997).

[FN209]. Smith, 23 S.W.3d at 477.

[FN210]. 977 S.W.2d 328 (Tex. 1998).

[FN211]. Id. at 331-32.

[FN212]. Id. at 331.

[FN213]. Id. at 335 n.3 (referring to Tex. Civ. Prac. & Rem. Code Ann § 82.005 (Vernon 1997)).

[FN214]. Id. at 335 n.4 (citations omitted).

[FN215]. Id. at 337.

[FN216]. 82 F. Supp. 2d 650 (S.D. Tex. 1999).

[FN217]. Id. at 651.

[FN218]. Id. at 651-52.

[FN219]. Id. at 654.

[FN220]. Id. at 656.

[FN221]. Id. at 657.









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[FN222]. 237 F.3d 515 (5th Cir. 2001).

[FN223]. Id. at 517-18.

[FN224]. Id. at 523.

[FN225]. Id. at 518; see supra text accompanying note 202.

[FN226]. 121 F.3d. 984 (5th Cir. 1997).

[FN227]. Id. at 985.

[FN228]. Id. at 993 (quoting Miss. Code Ann. § 11-1-63(f)(ii)).

[FN229]. See infra Appendix A.

[FN230]. See id.

[FN231]. Frank J. Vandall, Constructing a Roof Before the Foundation is Prepared: The Restatement (Third) of Torts:Products Liability Section 2(b) Design Defect, 30 U. Mich. J.L. Reform 261, 261 (1997).

[FN232]. 652 N.W.2d 159 (Iowa 2002).

[FN233]. Id. at 169, 178-83 ("Under the principles set forth in the Products Restatement (Third) adopted today . . . . aplaintiff may not recover from a cigarette manufacturer . . . .").

[FN234]. Id.

[FN235]. The language of the solicitation letter sent by Geoffrey Hazard, Director of the American Law Institute, made clearthat tort reform to assist manufacturers, insurers, and tobacco was the goal of the ALI. See infra Appendix A.

[FN236]. Clifford A. Reiders & Nicholas F. Lorenzo, Jr., Restatement (Third) of Torts, A Deliberate Step Backward fromProducts Liability?, The Barrister, Summer 1998.

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