Document Type



Published in Columbia Law Review, vol. 103, no. 7 (November 2003).


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 the consumer expectations test are correct to sense that the reasonable alternative design standard of the Third Restatement offers an inappropriately constrained basis for evaluating product designs. The consumer expectations test that they offer in its place, however, provides only an amorphous and ill-explained doctrinal formulation that repeatedly seems to collapse into the very Restatement framework that it purports to reject. Kysar seeks to overcome these failings of the consumer expectations doctrine by identifying a conceptually distinct, normatively desirable role for the doctrine to play within products liability law: The consumer expectations test should be redirected toward important cognitive and behavioral phenomena regarding the manner in which individuals evaluate risk, phenomena that are not as readily subsumed within the more analytically-rigid risk-utility test.

Date of Authorship for this Version