Hastings Law Journal


John L. Diamond


The twenty years since the introduction of the concept of strict products Liability have been marked by an analytic struggle within the courts as to what standards should govern the imposition of such liability in design defect cases. The struggle, which has focused on the effort to define "design defect" by incorporating both warranty and negligence theories, is reflected in section 402A of the Restatement (Second) of Torts. After examining the origins of strict products liability theory, this Article traces judicial efforts to deal with the theory and section 402A in California, New Jersey and Pennsylvania. The Article argues that the struggle to define "design defect" is largely futile; the proper inquiry concerns the policy considerations underlying a reasoned system of strict liability and negligence. To this end, the Article makes a case for moving away from strict products liability theory as it has developed and back towards traditional strict liability theory. With the focus properly on foreseeability of injury and the spreading of risk, deserving plaintiffs will be better compensated and potential defendants will be better able to prepare for liability.

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