Arriving at Reasonable Alternative Design: The Reporters' Travelogue

Substantial commentary and controversy have been generated by the requirement in the new Restatement (Third) of Torts: Products Liability that plaintiffs in most (but not all) cases involving claims of defective product design show that a reasonable alternative design was available and that failure to adopt the alternative rendered the defendant's design not reasonably safe. Henderson and Twerski explain the origins of that requirement in American products liability case law and show that it is not only the majority position but also comports with widely shared views regarding the proper objectives of our liability system. Although consumer expectations cannot serve as a workable, stand-alone test for defective design (except in the important subset of design cases involving product malfunctions) the authors acknowledge the relevance of reasonable consumer expectations in a sensible risk-utility analysis. The authors close with a description of the Habush Amendment, included in section 2, which imposes the reasonable alternative design requirement.

The authors defend its inclusion as principled and necessary, given the frequency with which courts have referred, in dicta, to the possibility that certain product designs present sufficiently low levels of social utility and high levels of risk that they should not be distributed at all.