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402A vs. Restatement (Third) Analysis of Products Liability

Some of the analysis recommended in Restatement (Third) for products liability differs from the analysis which was recommended in 402A. Although a vast majority of jurisdictions still adhere to 402A, it is important to know the distinctions between the two approaches.

1. Different test for design defect claims

402A has endorsed the consumer expectations test for most design defect claims. Here, the plaintiff alleges that the product was unreasonably dangerous for its intended use and is in a condition not reasonably contemplated by the ultimate consumer.

Restatement (Third) primarily adopts the Risk/Utility Test and also requires a plaintiff to prove a reasonable alternative design which would have reduced or eliminated the risk that injured the plaintiff. Here, the trier of fact will weigh various factors including: the likelihood the the product design will cause injury, the gravity of the danger posed, the mechanical and economic feasibility of an improved design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design.

2. Reduction/Unification of Claims

Under 402A most strict liability claims are accompanied by claims for negligence, breach of express warranty, breach of implied warranty of merchantability, and misrepresentation. Restatement (Third) advocates that a plaintiff should just make one unified claim of product defect. See Accompanying Claims to Defective Product under 402A for more information.

3. Categorization

Restatement (Third) creates three categories of product defects (manufacturing, design, and inadequate instructions or warnings). 402A does not have these categories and just has one long definition of when a product is defective.

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Types of Strict Liability

Strict liability has three major categories:

1. Animals

2. Abnormally Dangerous Activities; and

3. Products Liability

Animals – Owned or Possessed

Under the Restatement (Third) there are three categories of animals in strict liability:

1. Livestock – the owner or possessor of livestock is subject to strict liability if the livestock intrudes upon the land of another and physical harm is caused by the intrusion

2. Abnormally Dangerous Animals

3. Wild Animals – A possessor of a wild animal is subject to strict liability to another for harm done by the animal to the other person’s body, land or chattels, even if the possessor has exercised the utmost care to confine the animal, or otherwise prevent it from doing harm

  • Note: Wild animals are animals that have not been generally domesticated

Abnormally Dangerous Activities

One who carries on an abnormally dangerous activitiy is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.

Examples of Abnormally Dangerous Activities are:

  1. Impoundments (noxious substances or liquids)
  2. Hazardous wastes
  3. The Superfund Act
  4. Lateral support
  5. Blasting and explosives
  6. Nuclear energy
  7. Other high-energy activities
  8. Utilities
  9. Fireworks
  10. Poisons
  • Note: For a plaintiff to recover, he must show that the defendant was carrying on in an abnormally dangerous activity that proximately caused harm to his person or property.

Products Liability

The Restatement (Third) states that a product is defective when, at the time of sale or distribution, the product contained a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings.

  • Note: A plaintiff must prove that the product was defective, the defect existed when it left the defendant’s control, and that the defect actually and proximately caused his injury.