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Full-Text Articles in Torts
The Expectations Of Consumers, Douglas A. Kysar
The Expectations Of Consumers, Douglas A. Kysar
Cornell Law Faculty Publications
In the few years following promulgation of the Restatement (Third) of Torts: Products Liability, several courts have reaffirmed their allegiance to the consumer expectations test for product design defect liability, while rejecting the Restatement's contrary recommendation to adopt a design defect test that focuses primarily on technical features regarding the risk and utility of alternative product designs. In this Article, Professor Kysar reviews the post-Third Restatement decisions, identifying within them a common failure to articulate a coherent, independent doctrinal role for the consumer expectations test, despite the courts' clearly expressed desire to do so. In Kysar's view, courts adhering to …
Consumer Expectations' Last Hope: A Response To Professor Kysar, James A. Henderson Jr., Aaron Twerski
Consumer Expectations' Last Hope: A Response To Professor Kysar, James A. Henderson Jr., Aaron Twerski
Cornell Law Faculty Publications
The authors agree with Professor Kysar that the current version of the consumer expectations test for design defectiveness is an amorphous, unprincipled misreading of section 402A of the Restatement (Second) of Torts. And they agree that most courts apply risk-utility balancing in determining design defectiveness. But they disagree with Kysar's proposal to supplement risk-utility balancing with a reinvigorated consumer expectations test based on expert testimony regarding what consumers actually expect in the way of design safety. Judicial reliance on such testimony would be susceptible to result-oriented manipulation by litigants, would not guide manufacturers in making sensible design choices, would pressure …
Products Liability Harmonization: A Uniform Standard, Rebecca Korzec
Products Liability Harmonization: A Uniform Standard, Rebecca Korzec
All Faculty Scholarship
Among industrialized nations, the United States is unique in addressing tort law at the state rather than the national level. For example, Australia and Canada, which share a common-law heritage with the United States, have federal tort systems. The United States approach may be appropriate in some tort settings, such as in the premises liability or motor vehicle accident context (not involving a claim of products liability), where the state rule’s impact remains within that state’s geographical boundaries. Unlike the simple 'fender-bender', which occurs within the borders of one state, the typical product is manufactured and marketed nationally or internationally. …