Product design and tort law: Safety implications of increasing similarity in civil liability and regulatory standards

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This article addresses the impact of changes in design defect tort law on safety in the European Union and the United States, and draws two conclusions bearing significant product safety implications. First, tort law's approach to design defectiveness is developing more cohesion. Although important differences in jurisdictional approaches remain, the differences appear to be diminishing rather than growing. In both the United States and the European Union, courts are increasingly relying upon a risk/utility balancing test to determine whether to impose civil liability for allegedly defective product designs. Second, the direction in which tort law is evolving is bringing it closer to defectiveness tests typically employed by government regulatory agencies in Europe and the United States. Civil liability standards are increasingly similar to regulatory standards used in determining whether a product should be allowed on the market at all. This trend toward greater cohesion in tort standards, and tort law's increasing similarity to regulatory standards, has both positive and negative implications for safety. On the whole, the trend is likely desirable – it should encourage efficient products that are closer to an optional blend of safety and utility.

Document Type: Research Article


Publication date: March 1, 2001

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