A Critique of the Uniform Product Liability Law -- a Rush to Judgment
Aaron D. Twerski, Alvin S. Weinstein · bepress Legal Repository · 1978
The Expanding Liability of the Product Supplier: A Primer, 2 HoFSTRA L.[Vol.28 products to meet the same need, (3) the likelihood of injury and its probable seriousness, (4) the obviousness of the danger, (5) common knowledge and normal public expectation of the danger (particularly for established products), (6) the avoidability of injury by care in use of the product (including the effect of instructions or warnings), and (7) the ability to eliminate the danger without seriously impairing the usefulness of the product or making it unduly expensive.Wade, Strict Tort Liability of Manufacturers, 19 Sw.L.J. 5, 17 (1965).A slightly revised list of factors was delineated in Wade, On the Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825, 837 (1973).In what has come to be known as the Wade-Keeton test of strict liability the standard is applied without reference to the scienter of the defendant.Professor Keeton has expressed the following formulation of the rule:[A] product ought to be regarded as "unreasonably dangerous" at the time of sale if a reasonable man with knowledge of the product's condition, and an appreciation of all the risks found to exist by the jury at the time of trial, would not now market the product, or, if he did market it, would at least market it pursuant to a different set of warnings and instructions as to its use. . . .Since the test is not one of negligence, it is not based upon the risks and dangers that the maker should have, in the exercise of ordinary care, known about.It is, rather, danger in fact, as that danger is found to be at the time of the trial that controls.Keeton, Manufacturer's Liability: The Meaning of "Defect" in the Manufacture and Design of Products, 20 Symcusz L. Rav.559, 568 (1969) [hereinaftter cited as Keeton-SYRAcusE].At the outset there was some confusion about the utilization of risk-utility analysis in design defect legislation.Some courts believed that it merely re-introduced negligence into product liability actions.See, e.g., Butaud v. Suburban Marine & Sporting Goods, Inc., 543 P.2d 209 (Alaska 1975); Cronin v. J.B.E.Olson Corp., 8 Cal.3d 121, 501 P.2d 1153, 104 Cal.Rptr.433 (1972); Glass v. Ford Motor Co., 123 N.J.Super.599, 304 A.2d 562 (1975).This confusion was short lived.The overwhelming majority of courts have applied riskutility analysis in establishing design defect and failure to warn cases.See Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066 (4th Cir.1974); Borel v. Fireboard Paper Prods.Corp., 493 F.2d 1076 (5th Cir.1973); Welch v. Outboard Marine Corp., 481 F.2d 252 (5th Cir.1973); Rogers v. Unimac Co., 115 Ariz.304, 565 P.2d 181 (1977); Barker v. Lull Eng'r Co., 20 Cal.3d 413, 573 P.2d 443, 143 Cal.Rptr.225 (1978); Rivera v. Rockford Mach.& Tool Co., 1 III.App.3d 641, 274 N.E.2d 828 (1971); Moning v. Alfono, 400 Mich.425, 254 N.W.2d 759 (1977); Johnson v.Chrysler Corp., 74 Mich.App.532, 254 N.W.2d 569 (1977); Blevins v. Cushman Motor, 551 S.W.2d 602 (Mo.1977); Ferry v. Luther Mfg.Co., 56 A.D.2d 703, 392 N.Y.S.2d 521 (App.Div.1977); Micallef v. Miehle Co., 39 N.Y.2d 376, 348 N.E.2d 571, 384 N.Y.S.2d 115 (1976); Phillips v. Kimwood Mach.Co., 269 Or. 485, 525 P.2d 1033 (1974); Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex.1974); Metal Window Prods.Co. v. Magnusen, 485 S.W.2d 355 (Tex.Civ.App.1972).The significant outpouring of academic commentary aided the courts to recognize that riskutility theory must be utilized.Although there may be occasional decisions which demonstrate confusion, see, e.g., Azzarello v. Black Bros. Co., - Pa. _ 391 A.2d 1020 (1978), there is considerable agreement as to the standard 'to be applied.7. UPLL § 104, analysis § 104, reprinted in 44 Fed Reg.