Content area
Full Text
I. INTRODUCTION
More than any other area of tort law, the law of product liability has been the subject of continuing debate regarding the interrelated issues of its proper rationales and grounds of liability. Although the seeds of the debate go back at least 100 years, it flowered into its mature form in 1944 in Escola v. Coca Cola Bottling Co.,1 in which the majority of the California Supreme Court used an expansive application of the res ipsa loquitur doctrine to hold the defendant liable for inferred negligence.2 In a concurring opinion, Justice Roger Traynor relied on four different rationales-efficient compensation, efficient deterrence, inferred negligence, and consumer expectations3-to argue that liability for defective products should be strict.4 Almost twenty years later, in 1963, Traynor's rationales and position were ratified and adopted in an opinion that he wrote for a unanimous court in Greenman v. Yuba Power Products, Inc.5 The Greenman opinion was a catalyst for the adoption of strict product liability, based on the same rationales, in Restatement Second section 402A,6 which in turn was rapidly adopted by most states in the United States and greatly influenced the adoption of product liability laws in other countries.7
However, as the courts attempted to apply strict liability as articulated in section 402A, renewed debate developed on the proper extent and grounds of product liability.8 By the time the Restatement Third was being drafted, it was generally agreed, at least among the courts, that liability for construction defects should be strict and that liability for warning defects should be based on negligence, while considerable disagreement remained about the proper grounds of liability for design defects.9 The Restatement Third continues to invoke all four of the rationales that Traynor set forth in Escola-and a few more-to support strict liability for construction defects, but it asserts that those rationales do not support strict liability for design or warning defects, which it claims "are predicated on a different concept of responsibility"10 and were not prominent in the cases or a subject of significant consideration at the time that Restatement Second section 402A was drafted and adopted.11
It is true that at the time that section 402A was adopted no clear distinction was drawn between construction defects and design or warning...