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Print Vol. 105, Issue 4


An Essay on the Quieting of Products Liability Law

 Aaron D. Twerski, Irwin & Jill Cohen Professor of Law, Brooklyn Law School

18 May 2020

For several decades, courts and commentators have disagreed as to whether the standard for liability in product design defect cases should be based on risk-utility tradeoffs or disappointed consumer expectations. Although a strong majority opt for risk-utility a significant minority of courts adopt the consumer expectations test. This Essay contends that as a practical matter in jurisdictions that allow for recovery in design defect cases on a consumer expectations theory, plaintiffs introduce a reasonable alternative design as the predicate for recovery. In fifteen of the seventeen states that allow recovery based on consumer expectations the author could not find a single case in which the plaintiff did not introduce a reasonable alternative design. And in all jurisdictions but one, a defendant is free to introduce risk-utility evidence as relevant to the issue of whether the product disappoints consumer expectations. Thus, whether a reasonable alternative design is required de jure, it is de facto a staple in almost all design defect cases. 

To read more, click here: An Essay on the Quieting of Products Liability Law.