Professor Wertheimer has proposed that courts be allowed to hold producers strictly liable for product-related injuries, even though their products are not otherwise defective, as long as the overall risks associated with such products outweigh their benefits. However, this would subject the sellers of inherently dangerous products, such as cigarettes, to potentially devastating liability since their products cannot be made less dangerous. There are better ways to control the consumption of hazardous products if society wishes to do so.
Part I of this article discusses the scope and purpose of the defect requirement in section 402A and in the proposed Restatement (Third) of Torts. Part II examines the concept of product category liability and chronicles its universal rejection by the courts. Part III analyzes various policy arguments for and against categorical liability. Part IV considers some of the problems associated with using tort law to regulate product safety. Finally, Part V identifies some alternatives to an expansion of tort liability.
Richard C. Ausness, Product Category Liability: A Critical Analysis, 24 N. Ky. L. Rev. 423 (1997).