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Consumer Expectations\u27 Last Hope: A Response to Professor Kysar

By Jr. James A. Henderson and Aaron Twerski


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\u27s 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 courts to exceed the limits of their institutional competence, and would undermine the new Restatement\u27s commitment to making products safer. In the final analysis, Professor Kysar\u27s suggested approach to design liability rests on an unworkable premise, implicit in his article, that the authors reject--that enterprise liability is a worthy, attainable goal toward which courts should strive

Topics: Defective product designs, Product design litigation, Douglas Kysar, Consumer expectations test, Actual manufacturer liability, Reasonable alternative designs, Restatement (Second) of Torts, Section 402A, Consumer Protection Law, Marketing Law, Torts
Publisher: Scholarship@Cornell Law: A Digital Repository
Year: 2003
OAI identifier: oai:scholarship.law.cornell.edu:facpub-1572
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