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Monday, June 22, 2020

Twerski on the Quieting of Products Liability Law

Aaron Twerski has posted to SSRN An Essay on the Quieting of Products Liability Law.  The abstract provides:

For several decades, courts and commentators have disagreed as to whether the standard for liability in product design defect cases should be based on risk-utility tradeoffs or disappointed consumer expectations. Although a strong majority opt for risk-utility a significant minority of courts adopt the consumer expectations test. This Essay contends that as a practical matter in jurisdictions that allow for recovery in design defect cases on a consumer expectations theory, plaintiffs introduce a reasonable alternative design as the predicate for recovery. In fifteen of the seventeen states that allow recovery based on consumer expectations the author could not find a single case in which the plaintiff did not introduce a reasonable alternative design. And in all jurisdictions but one, a defendant is free to introduce risk- utility evidence as relevant to the issue of whether the product disappoints consumer expectations. Thus, whether a reasonable alternative design is required de jure, it is de facto a staple in almost all design defect cases.

https://lawprofessors.typepad.com/tortsprof/2020/06/twerski-on-the-quieting-of-products-liability-law.html

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