Geistfeld on Products Liability and Consumer Choice

Tort law has always recognized the principle expressed by the Latinmaxim volenti non fit injuria, or “a person is not wronged by that towhich he or she consents.” The absence of consent is part of the primafacie case for tort liability, distinguishing tortious behavior fromsocially acceptable behavior. Nevertheless, the value of consumerchoice in strict products liability is surprisingly unclear. Considerthe liability rules governing defects of product design or warning, themost important categories of product defect. According to theRestatement (Third) of Torts: Products Liability, “[t]he emphasis is oncreating incentives for manufacturers to achieve optimal levels ofsafety in designing and marketing products.” The optimal level ofsafety has no apparent connection to the amount of safety that would bechosen by consumers, because “consumer expectations do not play adeterminative role in determining defectiveness.” Whether a product isdefective in these cases instead depends on “[a] broad range offactors,” including “the nature and strength of consumer expectationsregarding the product.” In some cases, consumer expectations can be”ultimately determinative” of the liability question, but it is notapparent why the liability rules exclusively rely on consumer choice inonly these cases but not others. Consumer choice could also limitliability under the assumed-risk rule, and yet assumption of risk isnot an independent defense in products liability, deepening theimpression that this body of tort law undervalues individual choice.

The impression is misleading. Strict products liabilityappropriately values consumer choice. The value of consumer choice,however, is obscured by the way in which the Restatement (Third) hasde-emphasized the importance of consumer expectations. Properlyunderstood, the value of consumer choice not only justifies theliability rules in the Restatement (Third), it also provides the key tounderstanding the important limitations of strict products liability,including those based on assumed risks.