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77 Cornell L. Rev. 1512 (1991-1992)
Proposed Revision of Section 402A of the Restatement (Second) of Torts

handle is hein.journals/clqv77 and id is 1540 raw text is: A PROPOSED REVISION OF SECTION 402A OF THE RESTATEMENT (SECOND) OF TORTS James A. Henderson, Jr. t & Aaron D. Twerski 1 I INTRODUCTION Only rarely do provisions of the American Law Institute's Re- statements of the Law rise to the dignity of holy writ. Even more rarely do individual comments to Restatement sections come to symbolize important, decisive developments that dominate judicial thinking. Nevertheless, section 402A of the Restatement (Second) of Torts is such a provision. Literally thousands upon thousands of products liability decisions in the past twenty-five years have explic- itly referred to, and come to grips with, that section.' Among prod- ucts liability followers one need only identify an issue as presenting a comment k problem,2 or identify a legislative proposal as a comment i provision,3 to capture instantly the essence of the rele- vant debate and incorporate nearly thirty years of legal controversy, development and refinement. t Frank B. Ingersoll Professor of Law, Cornell Law School. A.B. 1959, Princeton University; LL.B. 1962, LL.M. 1964, Harvard University. $ Professor of Law, Brooklyn Law School. A.B. 1962, Beth Medrash Elyon Re- search Institute; B.S. 1970, University of Wisconsin-Milwaukee; J.D. 1965, Marquette University. 1 In a letter to the authors dated October 11, 1991, Marianne M. Walker, A.L.I. Restatement Case Citations Editor, asserts: In my nine years with the American Law Institute I have found § 402A to be the most frequently cited section of any Restate- ment. After reviewing more than 700 pages of citations in Appendices and pocket parts, confirmed by a computer-assisted search, we conservatively estimate that no fewer than 3,000 published court opinions have cited § 402A to the time of this writing. 2 Comment h of the RESTATEMENT (SEcOND) OF TORTS § 402A (1965) limits the application of strict liability in cases involving unavoidably unsafe products. For the most part, comment k has been used by courts to deny claims against drug manufactur- ers based on defective design. See, e.g., Brown v. Superior Ct., 751 P.2d 470 (Cal. 1988); Grundberg v. Upjohn Co., 813 P.2d 89 (Utah 1991). 3 Comment i of the RESTATEMENT (SECOND) OF TORTS § 402A (1965) imposes strict liability only if the product is 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. Id. cmt. i. Courts have used this section to preclude liability in cases involving products whose risks are well known whether the claims are based on defective design, see, e.g., Hartman v. Miller Hydro Co., 499 F.2d 191, 194 (10th Cir. 1974); Vincer v. Esther Williams All-Aluminum Swimming Pool Co., 230 N.W.2d 794, 799 (Wis. 1975); or failure to warn, see, e.g., Seagram & Sons v. McGuire, 814 S.W.2d 385, 388 (Tex. 1991); Menard v. Newhall, 373 A.2d 505, 507 (Vt. 1977). 1512

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