Constructing a Roof Before the Foundation Is Prepared: The <em>Restatement (Third) of Torts: Products Liability</em>, Section 2(b) Design Defect

The Restatement (Third) of Torts: Products Liability section 2(b) is a wish list from manufacturing America. It returns products liability law to something more restrictive than negligence. What is new from the Reporters is that their proposal is written on a clean sheet of paper. Messy and awkward concepts such as precedent, policy, and case accuracy have been brushed aside for the purpose of tort reform.

There has been almost no attempt to evaluate strict liability precedent or the policies underlying previous cases and the Restatement (Second) section 402A. Section 2b (the roof) has been drafted with little consideration of the policies underlying section 402A (the foundation) or the cases favoring the consumer (the support beams) decided over the last thirty years. The Restatement (Third) of Torts: Products Liability implies that legal analysis is farcical. Avoiding legal analysis is certain to cause section 2(b) to lose convincing power among those searching for solutions to tough cases involving injuries caused by defective products.