Distinguishing The Concept of Strict Liability For Ultra-Hazardous Activities From Strict Products Liability Under Section 402A Of The Restatement (Second) Of Torts: Two Parallel Lines Of Reasoning That Should Never Meet

Abstract

Strict liability for ultra-hazardous activities is entirely different from strict products liability. Since strict liability has been applied to so-called dangerous or ultra-hazardous activities, the application has been limited to instances where the defendant has, for his own purpose, created an abnormal risk of harm to those surrounding him, and therefore should pay for any resulting injury. Section 520 of the Restatement (Second) of Torts explains how one weighs the risk of harm emanating from ultra-hazardous activities against the appropriateness to its surroundings. This is not, however, how one determines the applicability of strict liability in the area of defective products under Section 402A of the Restatement (Second) of Torts. Section 402A has well-established standards for the concept of defectiveness, particularly when the defect was discovered through examining mismanufactured, misdesigned, and mismarketed products. The best standard to determine whether the product is mismanufactured is the reasonable expectations test. The risk-benefit analysis test, on the other hand, has emerged as the prevailing standard for determining misdesigned and mismarked products. Strict liability for ultra-hazardous activities is concerned with the appropriateness of the defendant’s activities to the locale, while strict products liability requires the defendant to introduce a defective product into the stream of commerce that is unreasonably dangerous to the user or consumer. These are two lines of reasoning that are distinct, separate, and independent of each other, and should never meet