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In Strict Products Liability 2.0: The Triumph of Judicial Reasoning Over Mainstream Tort Theory, Mark Geistfeld advances a powerful, and often persuasive, challenge to the negligence-centered conception of product lability law advanced by the Restatement (Third) of Torts: Products Liability (1998). In the courts, the Restatement (Third) has provoked controversy, but in the Academy it has become the prevailing orthodoxy. Section 402A of the Restatement (Second) stated a strict liability conception of product liability. The Restatement (Third) takes manufacturing defects to be subject to strict (enterprise) liability, but it asserts that design and warning defects should be governed exclusively by negligence norms. In Strict Products Liability 2.0, Professor Geistfeld sets out to vindicate the view—officially subscribed to by the majority of state courts today—that product liability law is strict and that its strictness extends to cover design as well as manufacturing defects. Whereas the Restatement (Third) sees the strict liability rhetoric of courts as a mere cover for the negligence conceptions that do the real work, Geistfeld argues that courts have been speaking warranty conceptions all along and these warranty conceptions construct a strict liability body of law. His thoughtful, deeply meditated, paper ought to awaken the Academy from its dogmatic slumbers.

For Geistfeld, the issue of the strictness of design defect liability turns on the role played by consumer expectations in determining design defectiveness. Section 402A of the Restatement (Second) had defined a product defect in part as “a condition not contemplated by the ultimate consumer”. In a comment, the Restatement (Second) explained that the product “must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Interpreting this language, many state courts had a adopted a “consumer expectation” test of product defectiveness, often in conjunction with a risk-utility test. In Barker v. Lull Engineering Co., for example, the California Supreme Court had articulated a products liability regime containing both risk-utility and consumer expectation tests of defective design. The Restatement (Third) rejects the “consumer expectation” test of product defectiveness “as an independent standard for judging” product design defects. In order to prove a product design defective, plaintiffs must show that the design fails a foresight-based “risk-utility” test. This requires proposing a “feasible alternative design” and proving both that this alternative design would have averted the harm to the plaintiff and that it balances product risks and benefits in a superior fashion.

Geistfeld argues convincingly that the Restatement (Third)’s repudiation of the expectation test reflected not the case law that it purported to restate, but academic aversion to the test. A 1991 Reporters’ Study on Enterprise Responsibility for Personal Injury commissioned by the ALI, for example, condemned the expectation test for making liability turn on “the uninformed safety expectations of uninformed consumers” because “[i]t seems arbitrary to make such expectations the legal measure of defect.” Consistent with that judgment, the academic “consensus was that the consumer expectation test would fade into oblivion.” Or so, Professor Twerski, one of the Restatement’s two Reporters, thought. It has, however, now been almost twenty-five years since the ALI promulgated the Restatement (Third) and most states have chosen not to go the Restatement (Third) route of relying exclusively on the risk-utility test. Partisans of the risk-utility test now describe the persistence of the consumer expectation test as merely rhetorical. To his great credit, Professor Geistfeld does not join this academic chorus. He takes the consumer expectation test seriously and sets out to show how courts might be doing just what they say they’re doing—namely, applying the test in order to vindicate the policies and premises of strict products liability.

There are two basic prongs to Professor Geistfeld’s analysis. The first is historical. Products liability law lies at the intersection of contract and tort, yet the Restatement (Third) paints a picture of the field as overwhelmingly the offspring of negligence law. This is evidenced not only by its commitment to the risk-utility test as the only test of design defectiveness, but also by its emphasis on the negligence doctrine of res ipsa loquitur as the source of products liability law’s strict liabilities. Geistfeld reminds us—forcefully and persuasively—that product liability law has deep roots in contract and warranty law and that the consumer expectation test is the offspring of warranty law, not negligence law. Warranty-law based strictness is baked in too deep to be expunged by the Restatement (Third)’s recasting of design defect law as wholly a matter of negligence. The second prong is normative: Geistfeld argues for an interpretation of the expectation test that makes a place for the test, for its limitation by the patent defect rule, and for its incorporation of risk-utility analysis in an important class of cases.

The consumer expectation test has been subject to two basic criticisms. One is the complaint that the expectation test makes liability turn on “the uninformed safety expectations of uninformed consumers”. The other is, in a sense, the reverse complaint—namely, that the test doesn’t promote product safety when a product’s dangers are “patent”. “Patent” dangers put consumers on notice that a product is unsafe, without regard to whether that unsafety is justified. Products Liability 2.0 addresses these complaints adroitly and ingeniously. First, consistent with its analysis of the history of products liability law, the article distinguishes malfunction cases from design defect cases. Malfunction cases are cases where consumers have clear and settled expectations of product performance; they are “actual knowledge” cases. The justification for strict liability in malfunction cases is the inability of the consumer to enforce, through contractual devices and savvy shopping, the manufacturer’s duty to provide products that always perform as they should. Consumers can’t tell either which cars are lemons, or whether manufacturers have practiced proper product quality control. Strict warranty liability for product malfunctions—strict liability for what most of us now think of as manufacturing defects—is a clever legal device for solving these information problems and for enforcing the manufacturer’s duty to practice competent quality control.

Design defect cases are plagued by a different difficulty. Here, the problem is not the inability to identify the lemon, or the companion inability to observe how careful the manufacturer’s quality control processes are. The difficulty is that consumers do not know how safe a product design might be. This is the very limitation that causes critics to assert that the expectation test is useless. Geistfeld’s ingenious maneuver is to turn this ignorance in favor of the expectation test. The relevant test of expectation is not actual knowledge but constructive knowledge: a product design should conform to the expectations that a well-informed consumer would have for the product. Among other things, this allows Geistfeld to distinguish between patent dangers and patent defects. Patent dangers are product risks that are known to consumers but which some well-informed consumers would be prepared to accept, because they strike a risk-utility balance that some users find attractive. The increased safety risks of motorcycles are obvious in this way, and acceptable to some people. Patent defects are risks that a well-informed consumer would not accept but which some actual consumers do accept simply because they do not have the choice of a safer product. Cars without airbags are, for Geistfeld, an example of a patent defect. So conceived, the consumer expectation test requires the use of risk-utility analysis in the class of cases where consumers do not have firm and well-grounded knowledge of just how safe a product might be. In this class of cases, risk-utility analysis tells us what an informed consumer would demand in the way of product design safety and that counterfactual standard determines the appropriate level of product safety.

At first glance, Geistfeld’s argument appears to prove what critics have said all along, namely, that the risk-utility test does the actual work even when the consumer expectation test is the official rule. Products Liability 2.0 meets this objection by arguing that the relevant kind of risk-utility test is a test from a particular and restricted point of view. That point of view is the point of view of a knowledgeable consumer, and it excludes a range of considerations normally included in risk-utility analysis. The question asked is what bundle of product design features best serves the interests of a knowledgeable product purchaser and user, not what bundle strikes the best balance of risk and utility all things considered. This is an ingenious and, so far as I know, original move. Moreover, it is consonant with much of the rhetoric that courts use when they write about why and how to incorporate risk-utility factors into the consumer expectation test.

It is unclear, though, that Geistfeld’s proposed variant of the risk-utility test provides adequate guidance for courts. If well-informed consumers have different tastes for product safety, Gestfeld’s test will replicate the disagreement that it is meant to settle. Moreover, Geistfeld’s incorporation of the risk-utility test into the expectation test conflicts with some of the judicial rhetoric that he purports to vindicate. Leading cases suggest that the risk-utility test and the consumer expectation test rest on different grounds and that a product may pass muster under one test but fail the other. Denny v. Ford Motor Co., for example, involved a SUV whose high, narrow, wheelbase suited it to off-road use but made it surprisingly unstable in slick conditions on paved roads. The SUV’s design satisfied the risk-utility test because it enabled off-road use of the vehicle. That capability is attractive to some buyers, and reasonably so. However, the relative on-road instability of the SUV disappointed legitimate consumer expectations and therefore subjected the seller to liability under the consumer expectation test. It is not clear that Professor Geistfeld’s framework can accommodate such conflicts between the two tests. He sews the two tests together very cleverly but the law in many jurisdictions treats them as embodying grounds of liability that may conflict.

This suggests a larger worry. Products Liability 2.0 powerfully criticizes the Restatement (Third) for trying to turn all of products liability law into garden variety negligence law. Contractual and warranty themes and concepts are, indeed, baked into the bones of the law we have. But Products Liability 2.0 may fall into the opposite trap of seeing only contract or warranty conceptions. Our products liability law is, in fact, irreducibly complex. It weaves together threads from both contract and tort and some of its strict liabilities are embedded in an enterprise liability framework.1

Even so, Products Liability 2.0 is a remarkable piece of scholarship. It makes a fundamental contribution to our understanding of the normative dimensions of products liability law and breathes new life into a debate that had grown tired and stale. Anyone interest in thinking about product defectiveness must reckon with this piece.

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  1. For an account of the place of enterprise liability in products liability see Gregory C. Keating, Products Liability As Enterprise Liability, 10 J. Tort L. 41 (2017).
Cite as: Gregory Keating, Should the Expectations of Consumers Matter?, JOTWELL (September 27, 2022) (reviewing Mark Geistfeld, Strict Products Liability 2.0: The Triumph of Judicial Reasoning over Mainstream Tort Theory, 14 J. Tort L. 403 (2021)), https://torts.jotwell.com/should-the-expectations-of-consumers-matter/.