Strict Products Liability: The Original Intent

Abstract

The adoption of Section 402A of the Restatement (Second) of Torts in 1965 is commonly viewed as initiating a revolution in the law of torts. Obviously, Section 402A's standard of strict liability for defective and unreasonably dangerous products transformed the field of products liability from a minor adjunct of warranty law into an enormous source of modern litigation. But the transformation of law occasioned by the adoption of the strict liability approach has been broader. It is common to regard Section 402A as having shifted the basis of American tort law altogether from the modest concerns of corrective justice toward the far bolder objectives of regulating safety and providing widespread compensation. In the United States before the Section 402A revolution, and in common law countries without some version of Section 402A today, tort law serves chiefly to restore some relationship between parties that has been upset through morally negligent behavior. Since the Section 402A revolution in the United States, in contrast, tort law has become .the dominant modern policy instrument for regulating harm-causing activities and providing compensation to the injured. The dimensions of this conceptual revolution in tort law should not be underestimated. Throughout its history, the United States has regarded direct regulation of industrial activities with suspicion, limiting regulatory intervention to a narrow set of industries, most commonly those dominated by natural monopoly. Yet today, after the tort law revolution of the mid-1960s, courts employ civil damage judgments to establish fine-tuned incentives to control the accident rate by internalizing injury costs to every product manufacturer and every service provider.