Seizing the Middle Ground between Rules and Standards in Design Defect Litigation: Advancing Directed Verdict Practice in the Law of Torts
![handle is hein.journals/nylr57 and id is 539 raw text is: SEIZING THE MIDDLE GROUND BETWEEN
RULES AND STANDARDS IN DESIGN DEFECT
LITIGATION: ADVANCING DIRECTED VERDICT
PRACTICE IN THE LAW OF TORTS
AARON D. TwmEsmi*
Professor Twerski argues that the decline of singlefactor no-duty rules in the product
liabilityfield has not eliminated lawmaking in dirccted rerdict practice but has only
altered its character. After showing how, in principle, courts may base findingt of
no duty on a multiplicity of policyfactors, Professor Twerski presents a number of
such factors and urges courts to weigh them when entertaining directed cerdicts.
The Article concludes with a discussion of judicial opinions that illustrate the rudi-
ments of a multifactor approach.
INTRODUCTION
The age of reasonableness and risk-utility balancing is upon us.'
*Professor of Law, Hofstra University; A.B., 1962, Beth Medrash Elyon Research Institute,
B.S., 1970, University of WVisconsin-Milwaukee; J.D., 1965, Marquette University.
The author gratefully acknowledges the contributions of Professors David Fischer, James
Henderson, Jr., David Owen, and Malcolm Wheeler, who read and critiqued the manuscript.
This article was written, in part, while the author was a visiting professor at the Boston
University School of Law. Many members of the faculty colloquium made excellent suggestions
which were incorporated into the text. In addition, the author wishes to thank Michael Hoenig,
of Herzfeld & Rubin, for his helpful comments. Finally, Shlomo Twerski, a third.year student at
Hofstra Law School, provided not only technical assistance but valuable insights to the author in
the preparation of this article.
Most of the recent literature in products liability has focused on the reasonableness test
and the appropriateness of risk-utility balancing as a method for establishing defects. See
Birnbaum, Unmasking the Test for Design Defect: From Negligence [to Warranty] to Strict
Liability to Negligence, 33 Vand. L. Rev. 593 (1980) [hereinafter Birnbaum, Unmasking the
Test for Design Defect]; Epstein, Products Liability: The Search for the Middle Ground, 56
N.C.L. Rev. 643 (1978) [hereinafter Epstein, Middle Ground]; Henderson, Renewed Judicial
Controversy Over Defective Product Design: Toward the Preservation of an Emerging Consen-
sus, 63 Minn. L. Rev. 773 (1979) [hereinafter Henderson, Renewed judicial Controversy];
Henderson, Manufacturers Liability for Defective Product Design: A Proposed Statutory Re-
form, 56 N.C.L. Rev. 625 (1978) [hereinafter Henderson, Proposed Statutory Reform]; Hender-
son, Expanding the Negligence Concept: Retreat from the Rule of Law, 51 Ind. L.J. 467 (1976)
[hereinafter Henderson, Expanding the Negligence Concept]; Henderson, Judicial Review of
Manufacturers' Conscious Design Choices: The Limits of Adjudication, 73 Colum. L. Rev. 1531
(1973) [hereinafter Henderson, Judicial Review of Design Choices]; Hoenig, Product Designs
and Strict Tort Liability: Is There a Better Approach? 8 Sw. U.L. Rev. 109 (1976); Keeton,
Products Liability-Design Hazards and the Meaning of Defect, 10 Cum. L. Rev. 293 (1979)
[hereinafter Keeton, Design Hazards]; Phillips, The Standard for Determining Defectiveness in
Products Liability, 46 U. Cin. L. Rev. 101 (1977); Schwartz, Foreword: Understanding Products
Liability, 67 Calif. L. Rev. 435 (1979); Twerski, Weinstein, Donaher & Pichler, The Use and
521
Imaged with the Permission of N.Y.U. Law Review](ViewImageLocal?handle=hein.journals/nylr57&div=21&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most