Consumer Expectations’ Last Hope: A Response to Professor Kysar

The authors agree with Professor Kysar that the current version of the consumer expectations test for design defectiveness is an amorphous, unprincipled misreading of section 402A of the Restatement (Second) of Torts. And they agree that most courts apply risk-utility balancing in determining design defectiveness. But they disagree with Kysar's proposal to supplement risk-utility balancing with a reinvigorated consumer expectations test based on expert testimony regarding what consumers actually expect in the way of design safety. Judicial reliance on such testimony would be susceptible to result-oriented manipulation by litigants, would not guide manufacturers in making sensible design choices, would pressure courts to exceed the limits of their institutional competence, and would undermine the new Restatement's commitment to making products safer. In the final analysis, Professor Kysar's suggested approach to design liability rests on an unworkable premise, implicit in his article, that the authors reject-that enterprise liability is a worthy, attainable goal toward which courts should strive.