Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 9. Liability without Fault?
expressed confidence that the assault had completely destroyed the seller defenses of privity and
non-negligence. See William L. Prosser, The Fall of the Citadel, 50 MINN. L. REV. 791 (1966).
2. Consumer expectations versus ex post cost benefit. Despite the early exuberance of
judges like Traynor and scholars like Prosser, and despite the ready adoption of the Restatement
by states such as Ohio, the Second Restatement turned out to present a number of puzzles.
One leading puzzle in 402A’s treatment of defective products was how to determine
whether a product was “defective” and “unreasonably dangerous to the user.” The Restatement
purported to set out a standard of liability only for products that are defective and unreasonably
dangerous. These are critical limitations. After all, no one thinks that kitchen knife
manufacturers ought to be liable for cuts arising out of ordinary cooking activities. Without the
limitation to defective products, the strict liability rule of 402A would threaten to create a liability
so sweeping as to include even obviously absurd cases.
Here is the puzzle: Subsection (2)(a) indicates that liability exists even though the seller
has “exercised all possible care” in the preparation and sale of the product. How, some torts
jurists began to ask, could any product as to which all possible care had been given be described
as defective? Such a seller or manufacturer, after all, might have lavished more care than the
mere reasonable care required by the negligence standard. And yet the law imagined that such an
immaculately carefully produced product might nonetheless be describable as defective. How
could that be?
Two possible answers emerged to the puzzle of strict liability for defective products
unreasonably dangerous to the user. The first was that defectiveness was to be measured not by
reference to the care put into the product by the seller and manufacturer, but by reference to the
reasonable expectations of the user. The consumer’s expectations would be the yardstick for
determining defectiveness.
A second answer to the puzzle of defectiveness hewed closer to the traditional negligence
approach, but with a twist. A product could be characterized as defective, after all, even if all
possible care had been put into its design and production, if the characterization was not made
from the ex ante view but instead from the ex post perspective. That is, a product might have
been made with all possible care at the time of its design and manufacture. It might have been a
perfectly fine product given the state of the art at that time. But given what we know at the time
of the trial, we might well conclude that the product is—given what we know now—substandard.
This approach is essentially an ex post Learned Hand test: it takes the ex ante reasonable person
test of the Carroll Towing case we read back in Chapter 4 and turns it around such that the costbenefit
test takes into account all that we know at the time of trial about the costs and benefits of
the product’s features.
2. Manufacturing Defects
One category of products cases involves allegations of defects in the manufacturing
process. In these cases, the claim is not that the product was ineptly designed, but rather that a
perfectly reasonably designed product was made in such a way that rendered it defective. Escola
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