Hastings Law Journal

Article Title

The Puzzle of Comment j


David G. Owen


At the center of § 402A of the Restatement (Second) of Torts, the fountainhead of modern products liability law, lies a curious puzzle. Comment j to § 402A contains one sentence which says that a product bearing a warning is not defective. Some courts have read this sentence literally to mean that a manufacturer has no duty to design away product hazards - no matter how great, and no matter how simple to do so - if the manufacturer provides a warning of danger. In subordinating the duty of safe design to the duty to warn, this interpretation of comment j undermines modern products liability doctrine by eviscerating its core responsibility: the duty of safe design. But this interpretation is wrong. Comment j in fact applies only to the narrow class of inherently dangerous products - notably, food, alcoholic beverages, tobacco, and pharmaceutical drugs - whose hazards are unavoidable and, hence, cannot be designed away. Comment j simply does not address other, "normal" types of products whose manufacturers thus must take all reasonable steps to design away substantial hazards, an obligation largely independent of the duty to warn.

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