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A Consumer-Use Approach to Products Liability

49 Pages Posted: 5 Feb 2008 Last revised: 22 Feb 2008

Alan Calnan

Southwestern Law School


In dicta, courts have had no trouble identifying unreasonable product uses. Indeed, over the years, they have compiled an extensive list of examples. That list includes the following pearls of wisdom. An automobile should not be used as a bulldozer. A shovel should not be used as a doorstop. A hunting and fishing knife should not be used to shave. A knife should not be used as a toothpick. An electric drill should not be used to clean teeth. A power saw should not be used to clip fingernails. A motorized hedge clipper should not be used to trim beards. A lawnmower should not be used to cut logs or pipe. And a radiator should not be used to open a bottled beverage.

Curiously, however, courts have never attempted to transform these commonsense observations into clear rules of law. Instead, they have addressed the problem of product misuse in a seemingly random and inconsistent manner. Sometimes misuse eliminates the product seller's duty of care. Other times it negates proof of defectiveness. In many cases it creates an issue of proximate causation. In still others, it raises a question of comparative fault. Too frequently, it is simply disregarded altogether.

In the early days of strict products liability, such decisions would have been unthinkable. Originally, strict liability was reserved exclusively for plaintiffs who were injured while putting products to their intended uses. As time passed, however, both the role and the effect of product misuse became clouded. The Restatement (Second) of Torts started the downward spiral. Section 402A made no mention of product use as a factor in determining strict products liability. Although the comments to that section addressed the issue of misuse, these comments were at best ambiguous and at worst potentially inconsistent. Lacking clear guidance from the Restatement Second, courts began to improvise their own unique approaches to the problem of product misuse. As these approaches accumulated, the law of strict products liability became more and more murky.

In 1998, the American Law Institute (ALI) had the opportunity to fix the problem. Unfortunately, it declined to do so. In the Restatement (Third) of Torts: Products Liability, the ALI made no attempt to categorize and distinguish product uses. Instead, it adopted a broad foreseeability test for all cases. The Restatement Third also made no effort to clarify how consumer-use issues should be handled. Rather, it allowed courts to choose their own analytical framework and let local law determine the burden of proof. Thus, unless something changes, the current confusion in products liability law is bound to continue.

This article seeks to solve this problem by proposing a brand new consumer-use approach to products liability law. Under this approach, courts would categorize products liability cases according to the type of use the plaintiff-consumer made of the product at the time he was injured. The categorization would have both substantive and procedural effects. Criminal or intentionally destructive uses would bar recovery altogether. Reckless or idiosyncratic uses would create a presumption of no-liability. Common ancillary uses would require expert evidence of defectiveness. Intended uses would create a presumption of liability, and intended uses of products violating statutes or regulations would result in absolute liability. By adapting liability schemes to consumer behavior, this five-tiered approach promises not just to clarify the law, but to better serve the Restatement Third`s objectives of efficiency and fairness.

Keywords: Products Liability, Misuse, Strict Liability, Consumer, Premises Liability, Entrant Classification System, Efficiency, Fairness, Defectiveness, Risk-Utility Test, Consumer Expectation Test

JEL Classification: K13

Suggested Citation

Calnan, Alan, A Consumer-Use Approach to Products Liability. University of Memphis Law Review, Vol. 33, p. 755, 2003. Available at SSRN:

Alan Calnan (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States
(213) 738-6811 (Phone)

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