Four Tests for Liability in Torts

Abstract

One of the reasons for the current unhappy state of tort law generally—and of products liability law especially—is that the courts have apparently had an unusual degree of difficulty in explaining the basis of liability. Product defect has never provided an illuminating starting point for analysis, and when it is defined to include design defects, it helps even less. Taken literally, product defect would seem to imply liability for any and all injuries that are causally linked to the product. What product could not have been designed so that a particular injury would have been avoided, at least if cost avoidance (including inconvenience and lack of effectiveness of the product) were paid no heed? Yet, as has often been pointed out, that is not the thrust of strict product liability.