Alternative Approaches To Alternative Design: Understanding The Reasonable Alternative Design Requirement And Its Different Applications

In 1997, the American Law Institute (ALI) adopted the final draft of its Restatement (Third) of Torts on the topic of product liability. The most notable—and controversial—feature of the ALI's work was its requirement that plaintiffs in design defect cases prove the "foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design." Restatement (Third) of Torts: Products Liability § 2(b) (1998).

Although the reasonable alternative design (sometimes referred to as the "feasible alternative design") concept was by no means new to product liability, the Third Restatement elevated the concept to new prominence and sparked a furor in the legal academy, the bench, and bar. Some viewed the Third Restatement's reasonable alternative design requirement as the beautiful harmonization of all design defect jurisprudence. Others viewed it as a betrayal of the law's most fundamental precepts and the end of product liability as a distinct field because it infused negligence principles into design defect cases, whereas the Second Restatement seemingly had not. See Restatement (Second) of Torts § 402A (1965); but see Aaron D. Twerski & James A. Henderson, Jr., Manufacturers' Liability for Defective Product Designs: The Triumph of Risk-Utility, 74 Brook. L. Rev. 1061, 1063-69 (2009) (arguing that few courts following the Second Restatement ever truly set aside negligence principles in design defect cases, even if they purported to do so). Outspoken detractors scorched the pages of law journals with personal barbs and accusations against ALI reporters and the ALI's institutional integrity, claiming that the ALI had sold out to the interests of civil defendants. To give an example, one commenter incensed over the reasonable alternative design requirement wrote that the ALI, "infected as it was with reporter bias and improper influence, has produced nothing more than a position paper reflecting the views of special interest groups with whom the reporters are aligned." Patrick Lavelle, Crashing Into Proof of a Reasonable Alternative Design: The Fallacy of the Restatement (Third) of Torts: Products Liability, 38 Duq. L. Rev. 1059, 1067 (2000). Another commenter—who weighed-in before the Third Restatement was finalized—accused the ALI of desecrating the legacy of Roger Traynor and concluded that the reasonable alternative design requirement "contravenes the foundational policies of products liability law." Frank J. Vandall, The Restatement (Third) of Torts: Products Liability Section 2(b): The Reasonable Alternative Design Requirement, 61 Tenn. L. Rev. 1407, 1421-25 (1994). The heated commentary left little room for a middle ground.

For the practitioner, the tenor of the commentary and criticism—which still rages on today in the halls of the legal academy and in the courts—should signal the importance of the reasonable alternative design requirement. Only a doctrine of consequence would merit such strong opinion. Indeed, anyone who has ever litigated a design defect case understands the practical significance of this issue and knows the influence that a comparison between the subject product and an alternative design may have on judges and juries. Plaintiffs pointing to a demonstrably safer product design that a manufacturer could have adopted cite such proof as a powerful way of showing that there was something "wrong" with the subject product. For a defendant, pointing to the absence of a demonstrably safer product design may support the conclusion that the product's design was appropriate and that the plaintiff's injury was either unavoidable or resulted from a condition unrelated to design.


The starting point to understanding the reasonable alternative design requirement is understanding its purpose. A design defect case requires proof that the product at issue was defective in its design, but defining what it means to be defective can be a...

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