Generic Product Risks: The Case Against Comment k and for Strict Tort Liability

The author considers whether strict liability should be imposed for injuries caused by products that pose generic risks--risks that do not derive from flaws in the manufacturing process but from product design or from the very nature of the product. He reviews the American Law Institute (ALI) debate that preceded adoption of section 402A of the Restatement (Second) of Torts and finds the ambiguous meaning of comment k, which deals with unavoidably unsafe products, of little use in determining whether section 402A applies to generic product risks. After examining the policy justifications for imposing strict liability in cases involving design dejects and construction defects, The author concludes that, at least in cases involving generic product risks that were unknown at the time of sale, strict liability should be imposed as a modest incentive to manufactures to improve product safety and as a means of satisfying justifiable consumer expectations