Dashing Consumer Hopes: Strict Products Liability and the Demise of the Consumer Expectations Test

24 Pages Posted: 13 Jun 2009  

Rebecca Korzec

University of Baltimore - School of Law

Date Written: Summer 1997

Abstract

The threshold issue in American products liability litigation is whether the product was defective at the time it left the manufacturer's control. Traditionally, courts and scholars define “defect” in three functional categories: manufacturing defects, design defects and marketing defects. American products liability doctrine employs two major tests to determine whether a "defect” exists: the seller-oriented risk-utility test and the buyer-oriented consumer expectations test. The Draft of the Restatement Third of Torts: Products Liability, like some American jurisdictions, rejects the “consumer expectations” test as an independent standard in defective warning and design cases. Ironically, this limitation of the use of the consumer expectations test in American products liability doctrine coincides with the European Community's adoption of the consumer-oriented test for European strict products liability cases.

This article analyzes these contemporary developments. First, it considers the implications of the European Union's (EU) Council Directive No. 85/374 (European Directive) for American products liability law. It then analyzes the consumer expectations test in light of the purpose of products liability law. Reconsideration of the consumer expectations test suggests that, properly constructed and applied, the consumer-oriented test promotes considerations of safety, equity, and efficiency.

Keywords: litigation, strict products liability, product defects, risk-utility test, consumer expectations test, European Union, Council Directive No. 85/374,

JEL Classification: K13, K33, K39

Suggested Citation

Korzec, Rebecca, Dashing Consumer Hopes: Strict Products Liability and the Demise of the Consumer Expectations Test (Summer 1997). Boston College International and Comparative Law Review, Vol. 20, No. 2, 1997. Available at SSRN: https://ssrn.com/abstract=1418650 or http://dx.doi.org/10.2139/ssrn.1418650

Rebecca Korzec (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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