The Expectations of Consumers

In 1997, the American Law Institute promulgated the Restatement (Third) of Torts: Products Liability, an ambitious and important project that decisively rejected the consumer expectations doctrine in favor of a risk-utility test for product design defect claims. In the few years following promulgation of the Third Restatement, however, several courts have issued opinions expressing strong judicial allegiance to the consumer expectations doctrine. Indeed, at times they have appeared deeply suspicious of the ALI Restatement project and its recommendation to abandon consumer expectations as an independent test for product design defectiveness. This article examines the disjunction between rhetoric and reality in post-Third Restatement products liability decisions. It aims to demonstrate, first, that the doctrinal framework established by the Third Restatement is in fact an accurate representation of design defectiveness litigation despite the apparent persistence of the consumer expectations test. Second, this article seeks to explore whether scholars nevertheless can and should articulate a more significant, conceptually independent role for the consumer expectations test, given that several courts appear determined to retain the test as part of their products liability jurisprudence. Toward that end, this article explores several possible substantive foundations that might be laid for the consumer expectations test. Initially, it locates several points along the tradeoff spectrum between descriptive attractiveness and theoretical tractability, none of which provide a wholly satisfactory response to the challenge of giving content to the consumer expectations doctrine. More promising findings, however, emerge from cognitive and social psychology, behavioral economics, and other social science investigations of human behavior and decision-making. In particular, researchers from those fields have uncovered a wealth of knowledge in recent years concerning the manner in which individuals perceive and process information regarding health and safety dangers. As it turns out, lay individuals frequently comprehend such risks in ways that depart systematically from the approaches that characterize expert decision-making. Although such departures sometimes result from undesirable factual or cognitive errors on the part of individuals, a substantial remaining core of lay risk perception cannot easily be dismissed as irrational or otherwise lacking foundation. This article therefore argues that the consumer expectations test should be redirected toward these important cognitive and behavioral phenomena that are not as readily subsumed within the more analytically rigid risk-utility test. In this manner, the doctrine that refuses to die may yet find a purpose, nearly forty years after its accidental birth.