Restatement 3rd of Torts: Reasonable Alternative Design Requirement- the Perspective From a Plaintiffs Attorney

According to Professor Aaron Twerski, Co-Reporter of the Restatement (Third) of Torts: Products Liability, the new Restatement is a tort reformer's dream. However, he may not realize the mischief corporate interests will wreak with the recent changes in the new Restatement.

Although critics of the Restatement admonish that the treatise eliminates strict liability or Section 402A of the Restatement (Second) of Torts in design and warning defect contexts, Professor Twerski stated it does not. Although that may have been his intent, I don't think that was the result as evidenced in the plaintiff's burden of proof embodied in the final draft, scheduled for release on May 6.

He detailed at a recent American Bar Association (ABA) subcommittee meeting in New York his five-and-a-half year effort in seeking positions and opinions from all sides before wording and re-wording the Restatement. Nevertheless, the final draft clearly contains many changes that are suspect of whether they clearly reflect the current state of the law, as Professor Twerski so confidently proclaims.

Twerski admits that the courts' language on the various provisions differ, but the "core," as he calls it, is not as consistent as he would have one believe. With each court interpreting the black letter law in accordance with its own state statutes and common law as well as the facts of the case before it, the result is often a blending, overlap or fine-tuning of legal theories.

For instance, the new Restatement ignores the reality that most product liability cases - or at least the great majority of the ones in which I have litigated - allege two, if not all three, of the types of defects (manufacturing, design and warning defects) in the initial pleadings. The crossover is often difficult to sort out until discovery is well underway. The Restatement, instead, has created a mechanical distraction with differing standards of liability, depending upon the type of defect alleged. For instance, Section 2 of the Restatement not only lists the various categories of a product defect, but also the different standard for each type of defect. The courts, instead of sorting out these semantics, should be focussing on whether the defendant is liable for the defects.

But the greatest area of debate surrounds Section 2(B): the requirement that the plaintiff demonstrate a reasonable alternative design in design defect cases. Critics of the new Restatement have doubted from its inception the claim that reasonable alternative design requirement has already been embraced by an overwhelming majority of jurisdictions. This criticism seemed valid, particularly when examining what this means to a plaintiff's burden of proof.

For example, in Illinois, the Illinois Supreme Court affirmed the verdict for plaintiff and held that proof regarding the availability and feasibility of alternative designs at the time of a product's manufacture may be presented. However, it was not mandatory in order for a plaintiff to prevail. Anderson v. Hyster Co., 74 Ill.2d 364, 385 N.E.2d 690 (1979). Subsequently, in Palmer v. Avco Distributing Corp., 82 Ill.2d 211, 412 N.E.2d 959, 963-64 (1980), the same court found that a plaintiff could establish liability for a design defect by using either a consumer expectation test or by showing an alternative design.

In 1990, the state's highest court properly acknowledged that in some defective design cases a defendant may carry a burden of proof. In Lamkin v. Towner, 138 Ill.2d 510, 563 N.E.2d 449 (1990), the court set forth the following test:

A plaintiff may demonstrate that a product is defective in design, so as to subject a retailer and a manufacturer to strict liability for resulting injuries, in one of two ways: (1) by introducing evidence that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or (2) by introducing evidence that the product's design proximately caused his injury and the defendant fails to prove that on balance the benefits of the challenged design outweigh the risk of danger inherent in such designs. Id., 563 N.E.2d at 457.

John Varga, Indianapolis lawyer and editor-in-chief of a five-volume treatise entitled Products Liability Practice Guide (Matthew Bender, 1988), has published a nearly 500-page treatise examining the Restatement (Third), including a comprehensive state-by-state review of the current law, challenging the reporters' claims that a reasonable alternative design requirement constitutes a consensus among jurisdictions. "The Emperor's New Clothes: The American Law Institute Adorns a 'New Cloth' for Section 402A Products Liability Design Defects - A Survey of the States Reveals A Different Weave," 26 Mem. St. U. L. Rev. 493 (1996). Rather, maintains Varga, reasonable alternative design is only one of many factors in a design defect inquiry.

Professor Twerski stated the Restatement does not require an injured plaintiff to re-design and produce a prototype; expert testimony will suffice. As Professor Twerski quipped, a plaintiff's attorney would no sooner go to court in a defective design case without an argument supporting a reasonable alternative design than he would without wearing his underpants. Heads nodded in agreement.

If the principle, though, were so uniformly accepted, the question must be raised: Why did this measure prompt the most vigorous and lengthy debate within the American Law Institute? Perhaps it is because the real issue for dispute is whether the Restatement (Third) attempts to shift unfairly the burden of proving a reasonable alternative design on to plaintiffs. Defendants may end up asking the courts for plaintiffs to jump through all types of evidentiary hoops, using the force of this Restatement.

Under the new Restatement, proof of alternative design becomes an essential part of plaintiff's prima facie case, taking on a life of its own in a new test. The defectiveness of design is measured in the Restatement (Third) by the "foreseeable risks of harm posed by the product," rather than by the risks of use not contemplated by the "ordinary user." In theory, the role of a consumer expectation test is reduced to a mere factor in a risk-utility analysis in design defect cases. In practice, though, proof of an alternative design at the time of sale is elevated to a condition precedent in order to prevail at trial. In doing so, the Restatement unfairly shifts the burden of proof on this issue to the plaintiff when it is the defendant who is in control of the evidence and knowledge at the time of a product's manufacture and sale.

The Restatement may even be considered a narrowing of the jury's function to merely comparing two competing designs. How all of this will play in the hinterlands remains to be seen, particularly when the real meaning of much of the Restatement (Third) is left to the extensive notes.

Professor Twerski cautioned lawyers attending the ABA meeting to pay careful attention to the Notes accompanying the Restatement. Although he is correct, perhaps Professor Twerski relies too heavily on the Restatement's notes to flush out the real meaning of the "black letter law."

The notes represent compromises, perhaps even concessions, made during the intense, protracted debate on the many issues confronting trial lawyers and judges on the American Law Institute (ALI) Council. It should be noted that the notes' comments have little force and effect. They merely serve to demonstrate to any jurisdiction considering adopting a section, the reasoning and intent of the language, serving to enlighten those who were not part of the process.

In the end, what has the Restatement done? It is clear that products are becoming more complex in today's marketplace. Manufacturing is more high-tech, from computers to sophisticated guidance systems that fly an airplane. With each new product, the goal is often less mechanical manipulation by a human being. This means when these products fail, more and more defect cases will turn to the design of the product - was it designed for the task it originally set out to do and could it have functioned better under those circumstances?

Despite all the rhetoric, the Restatement (Third) of Torts: Products Liability represents a greater hurdle for a plaintiff to prevail, perhaps even being construed as changing the standard of care of a manufacturer. The courts should be careful in hearing arguments based upon the Restatement as they begin to be raised in the years to come, keeping in mind that the injured victim should not be denied a day in court because defense lawyers have mastered a shell game.