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Following the publication of the Proposed Final Draft, we had occasion to respond to members of the Institute who suggested clarifying the language. We have concluded that the language reflected in the thirteen amendments set forth in the attached package improve the draft. We recommend their adoption by the membership.

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Amendment 1: Change § 2 Comment d on p. 20 as indicated: 

How the defendant's design compares with other, competing designs in actual use is relevant to the issue of whether the defendant's design is defective. Defendants often seek to defend their product designs on the ground that the designs conform to the "state of the art." The term "state of the art" has been variously defined to mean that the product design conforms to industry custom, that it reflects the safest and most advanced technology developed and in commercial use, or that it reflects technology at the cutting edge of scientific knowledge. The confusion brought about by these various definitions is unfortunate. This Section states that a design is defective if the product could have been made safer by the adoption of a reasonable alternative design. If such a design could have been practically adopted at time of sale and if failure to adopt such a design rendered the product not reasonably safe, the plaintiff establishes defect under Subsection (b). When a defendant demonstrates that its product design was the safest in use at the time of sale, it may be difficult for plaintiff to prove that an alternative design could have been practically adopted. Defendant is thus allowed to introduce evidence with regard to industry practice that bears on whether an alternative design was practicable. Industry practice may also be relevant to whether the omission of an alternative design rendered the product not reasonably safe. While such evidence of industry practice is admissible, it is not necessarily dispositive. If plaintiff introduces expert testimony to establish that a reasonable alternative design could practically have been adopted, a trier of fact may conclude that the product was defective notwithstanding that such a design was not adopted by any manufacturer, or even considered for commercial use, at the time of sale.

Amendment 2: Change § 2, Comment f on p. 24 as indicated:

f. Design defects: factors relevant in determining whether the omission of a reasonable alternative renders a product not reasonably safe. Subsection (b) states that a product is defective in design if the omission of a reasonable alternative design renders the product not reasonably safe. A broad range of factors may be considered in determining whether an alternative design is reasonable and whether its omission renders a product not reasonably safe. The factors include, among others, the magnitude and probability of the foreseeable risks of harm, the instructions and warnings accompanying the product, and the nature and strength of consumer expectations regarding the product, including expectations arising from product portrayal and marketing. See Comment g. The relative advantages and disadvantages of the product as designed and as it alternatively could have been designed may also be considered. Thus, the likely effects of the alternative design on production costs; the effects of the alternative design on product longevity, maintenance, repair, and esthetics; and the range of consumer choice among products are factors that may be taken into account. Plaintiff is not necessarily required to introduce proof on all of these factors; their relevance, and the relevance of other factors, will vary from case to case. Moreover, the factors interact with one another. For example, evidence of the magnitude and probability of foreseeable harm may be offset by evidence that the proposed alternative design would reduce the efficiency and the utility of the product. On the other hand, evidence that a proposed alternative would increase production costs may be offset by evidence that product portrayal and marketing created substantial expectations of performance or safety thus increasing the probability of foreseeable harm. Depending on the mix of these factors, a number of variations in the design of a given product may meet the test in Subsection (b). On the other hand, it is not a factor under Subsection (b) that the imposition of liability would have a negative effect on corporate earnings or would reduce employment in a given industry.

Amendment 3: Substitute for the third paragraph of § 2 Comment f at pp. 24-25:

[ While plaintiff must prove that a reasonable alternative design would have reduced the foreseeable risks of harm, Subsection (b) does not require the plaintiff to actually produce a prototype in order to make out a prima facie case. For example, even though an expert has produced no prototype, qualified expert testimony on the issue suffices if it reasonably supports the conclusion that a reasonable alternative design could have been practically adopted at the time of sale. Moreover, cases arise in which the feasibility of a reasonable alternative design is obvious and expert testimony is unnecessary to support a finding that the product should have been designed differently and more safely. For example, when a manufacturer sells a soft stuffed toy with hard plastic buttons that are easily removable and likely to choke and suffocate a small child who foreseeably attempts to swallow them, the plaintiff should be able to reach the trier of fact with a claim that buttons on such a toy should be an integral part of the toy’s fabric itself (or otherwise be unremovable by an infant) without hiring an expert to demonstrate the feasibility of the defendant’s adopting such an alternative safer design. Furthermore, other products already available on the market may serve the same or very similar function at lower risk and at comparable cost. Such products may serve as reasonable alternatives to the product in question.]

While plaintiff must prove that a reasonable alternative design would have reduced the foreseeable risks of harm, Subsection (b) does not require the plaintiff to produce expert testimony in every case. Cases arise in which the feasibility of a reasonable alternative design is obvious and understandable to laypersons and therefore expert testimony is unnecessary to support a finding that the product should have been designed differently and more safely. For example, when a manufacturer sells a soft stuffed toy with hard plastic buttons that are easily removable and likely to choke and suffocate a small child who foreseeably attempts to swallow them, the plaintiff should be able to reach the trier of fact with a claim that buttons on such a toy should be an integral part of the toy's fabric itself (or otherwise be unremovable by an infant) without hiring an expert to demonstrate the feasibility of the defendant's adopting such an alternative safer design. Furthermore, other products already available on the market may serve the same or very similar function at lower risk and at comparable cost. Such products may serve as reasonable alternatives to the product in question. In many cases, the plaintiff must rely on expert testimony. Subsection (b) does not, however, require the plaintiff to produce a prototype in order to make out a prima facie case. For example, even though an expert has produced no prototype, qualified expert testimony on the issue suffices if it reasonably supports the conclusion that a reasonable alternative design could have been practically adopted at the time of sale.

Note: The amended paragraph rearranges the order of sentences in the original draft and adds several clarifying words.

Amendment 4: Substitute in § 2, Comment g, for the last sentence of the paragraph ending on p. 30 and add to the following paragraph on pp. 30-31:

[ Thus, although consumer expectations are not determinative of whether a product is defectively designed, they constitute an important factor in determining the necessity for, or the adequacy of, a proposed alternative design. ] Thus, although consumer expectations do not constitute an independent standard for judging the defectiveness of product designs, they may substantially influence or even be ultimately determinative on risk-utility balancing in judging the need for a proposed alternative design.

Subsection (b) likewise rejects conformance to consumer expectations as a defense. The mere fact that a risk presented by a product design is open and obvious, or generally known, and that the product thus satisfies expectations, does not prevent a finding that the design is defective. But the fact that a product design meets consumer expectations may substantially influence or even be ultimately determinative on risk-utility balancing in judging the need for a proposed alternative design. It follows that, while disappointment of consumer expectations may not serve as an independent basis for allowing recovery under Subsection (b), neither may conformance with consumer expectations serve as an independent basis for denying recovery. Such expectations may be relevant in both contexts, but in neither are they controlling.

Amendment 5: Make following change to § 2, Comment i at pp. 33-34:

In addition to alerting users and consumers to the existence and nature of product risks so that they can, by appropriate conduct during use or consumption, reduce the risk of harm, warnings also [ should ] may be needed to inform users and consumers of nonobvious risks that unavoidably inhere in using or consuming the product. Such warnings allow the user or consumer to avoid the nonobvious risk warned against by making an informed decision not to purchase or use the product at all and hence not to encounter the risk. In this context, it may be necessary to provide warnings [ warnings must be provided ] for inherent risks that reasonably foreseeable product users and consumers would deem material or significant in deciding whether to use or consume the product. Whether or not many persons would, when warned, nonetheless decide to use or consume the product, warnings are required to protect the interests of those reasonably foreseeable users or consumers who would, based on their own reasonable assessments of the risks and benefits, decline product use or consumption. [The ] When such warnings are necessary, their omission [of warnings sufficient to allow informed decisions by reasonably foreseeable users or consumers ] renders the product not reasonably safe at time of sale. Notwithstanding the defective condition of the product in the absence of adequate warnings, if [it is determined that ] a particular user or consumer would have decided to use or consume even if warned, the lack of warnings is not a legal cause of that plaintiff's harm. Judicial decisions supporting the duty to provide warnings for informed decisionmaking have arisen almost exclusively with regard to toxic agents and pharmaceutical products. Due to the serious nature of the risks and the almost total inaccessibility of risk information to consumers with respect to such products, courts have recognized a special need to alert consumers to these risks so that they can decide whether they wish to purchase or utilize the product.

Amendment 6: Substitute for the first paragraph of § 2 Comment l at p. 37:

 l. Relationship between design and instruction or warning. [Subjecting product sellers to liability for defectively unsafe designs and for inadequate instructions or warnings both aim at achieving higher levels of safety in the use and consumption of products. Instructions and warnings accompanying the product are relevant to the question of defective design and in some cases adequate instructions and warnings will suffice to render the product nondefective. However, instructions and warnings may be ineffective because it reasonably can be foreseen that users of the product cannot be adequately reached, are likely to be inattentive, or are insufficiently motivated to follow the instructions or heed the warnings. Thus, when a safer design can reasonably be implemented, adoption of the safer design is preferable to a warning that leaves a residuum of risk. When an alternative design to avoid risks cannot reasonably be implemented, adequate instructions and warnings will be sufficient to render the product reasonably safe. ] Reasonable designs and instructions or warnings both play important roles in the production and distribution of reasonably safe products. In general, when a safer design can reasonably be implemented and risks can reasonably be designed out of a product, adoption of the safer design is required over a warning that leaves a significant residuum of such risks. For example, instructions and warnings may be ineffective because it can reasonably be foreseen that users of the product cannot be adequately reached, are likely to be inattentative, or are insufficiently motivated to follow the instructions or heed the warnings. When an alternative design to avoid risks cannot reasonably be implemented, adequate instructions and warnings will be sufficient to render the product reasonably safe. Warnings are not, however, a substitute for the provision of a reasonably safe design.

Amendment 7: Substitute for the last sentence of § 2 Comment m at p. 39:

Of course, a seller bears responsibility to perform reasonable testing prior to marketing a product and to discover risks and risk avoidance measures that such testing would reveal. [When reasonable testing is not undertaken and this failure leads to a defect that causes harm, the seller is subject to liability for harm caused by such defect ] A seller is charged with knowledge of what reasonable testing would reveal. If testing is not undertaken, or is performed in an inadequate manner, and this failure leads to a defect that causes harm, the seller is subject to liability for harm caused by such defect.

Amendment 8: Add to § 4 a new Comment f.

f. Conduct Not Related to Product Defect. This section deals with noncompliance and compliance with product safety statutes or regulations as they relate to the issue of product defect. Conduct involving products but not related to product defect may also be governed by statute or regulation. For example, sale of dangerous instrumentalities may be prohibited by statute or regulation. Or statutes or regulations may govern such matters as post-sale warnings or recalls. When and whether liability arises when there has been noncompliance or compliance with such statutes or regulations is governed by Restatement, Second, of Torts §§ 286-288C.

Amendment 9: Change § 5, Comment e on pp. 157-158 as indicated:

Last line on page 157 -- change "assist in modifying the product" to "assist in modifying the design of the product."

Top of page 158 -- insert after the penultimate sentence of Comment e: "Nor does providing mechanical or technical services or general design advice in the selection or integration of the component into a product over whose overall design, testing, and labelling the component supplier does not exercise control constitute substantial participation which would subject the component supplier to liability.

Add to § 5, Comment f, p. 158 at end of paragraph. Similarly, if a raw material supplier offers advice about processing the material, and there is no evidence that the processing advice was a cause of the allegedly defective condition, the raw material supplier should not be subject to liability.

Add new illustration after Comment f.

Illustration No. 6

Amendment 10: Add to black letter § 8 a new subsection § 8(d):

Amendment 11: Amend black letter to § 11(a)(1) at p. 243 and comments on pp. 244-245 to read:

Comment:

 a. Rationale. Duties to recall products impose significant burdens on manufacturers. Many product lines are periodically redesigned so that they become safer over time. If every improvement in product safety were to trigger a common-law duty to recall, manufacturers would face incalculable costs every time they sought to make their product lines better and safer. Moreover, even when a product is defective within the meaning of § 2, § 3, or § 4, an involuntary duty to recall should be imposed on the seller only by statute, [ or ] regulation, or other governmental directive . Issues relating to product recalls are best evaluated by governmental agencies capable of gathering adequate data regarding the ramifications of such undertakings. The duty to recall or repair should be distinguished from a post-sale duty to warn about product hazards discovered after sale. See §§ 10 and 13.

Illustration:

 b. Failure to recall when recall is specifically required by statute or other governmental regulation. When a product recall is specifically required by statute, [ or ] regulation or other governmental directive, failure reasonably to comply with the relevant statute or regulation subjects the seller or other distributor to liability for harm caused by such failure. For the product seller or other distributor to be subject to liability under Subsection (a)(1), the statute [ or ] regulation, or other governmental directive must specifically require recall. It is not sufficient that an agency has the power to order product recalls with regard to the product in question if the agency has failed to issue a specific recall order. Nor will it suffice that a general duty to recall is imposed by statute or regulation and the plaintiff alleges that the defendant breached that duty by failing to recall in the absence of a specific order to do so. When a statute, [or ] regulation, or other governmental directive specifically requires product recall, the violation by the seller of that requirement constitutes actionable negligence. See § 4, Comment [d. ] f.

Illustrations:

Amendment 12: Add to § 11 Comment c after the last sentence of the comment at p. 246:

In some instances voluntary recalls are subject to regulation by governmental agencies. Whether product sellers are subject to liability for harm caused by non-compliance or compliance with the terms of such regulations is governed by Restatement, Second, of Torts §§ 286-288C. See § 4 Comment f.

Amendment 13: Delete from § 17 Comment d, at p. 320 first full paragraph the following words:

Under this Section, all forms of plaintiff's failure to conform to applicable standards of care are to be considered [by the trier of fact ] for the purpose of apportioning responsibility between the plaintiff and the product seller or distributor.

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