Defining the Boundaries of Alternative Design under the Restatement (Third) of Torts: The Nature and Role of Substitute Products in Design Defect Analysis
![handle is hein.journals/tenn63 and id is 339 raw text is: DEFINING THE BOUNDARIES OF ALTERNATIVE
DESIGN UNDER THE RESTATEMENT (THIRD) OF
TORTS: THE NATURE AND ROLE OF SUBSTITUTE
PRODUCTS IN DESIGN DEFECT ANALYSIS
RICHARD L. CupP, JR.*
A Volkswagen van travelling at a speed of forty miles per hour strikes
a telephone pole, causing severe leg injuries to a passenger sitting in the
front of the van.' The injured passenger sues Volkswagen and contends
that the vehicle was defectively designed because it did not utilize a long
hood which provides more protection to passengers in front-end colli-
sions.2 According to the plaintiff's theory, a long hood would have
absorbed the van's impact with the telephone pole and protected her legs
from being crushed.3 To demonstrate the feasibility and safety benefits of
adding a long hood, the plaintiff's expert compares the van's design with the
passengers in the middle and the motor in the front design more
commonly used for consumer vehicles.'
Do long-hooded vehicles such as the Cadillac5 represent an alternative
way of designing a transportation vehicle, or are they sufficiently different
from a Volkswagen van to constitute entirely different products? If they are
different products, is it fair to compare them to the Volkswagen in
detennining whether it is defectively designed? Such questions, while
always important, have new prominence in light of the American Law
Institute's (ALI's) recent adoption of the Restatement (Third) of Torts:
Products Liability.6 Against unprecedented dissent,7 in May, 1995, the
ALI took steps to abandon the extremely influential section 402A of the
Restatement (Second) of Torts' and tentatively approved a new standard
* Associate Professor of Law, Pepperdine University School of Law. J.D. 1987,
University of California at Davis. I am indebted to Professor Antonio Mendoza for his
thoughtful insights, to Michael Mahurin, Nikki McKennedy, and Kathryn Watson for their
diligent research assistance, and to the Pepperdine University School of Law for funding my
work on this Article with a research grant.
I. Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066, 1068 (4th Cir. 1974).
2. Id. at 1074.
3. Id. at 1068-69.
4. Id. at 1074.
5. Id. at 1073.
6. RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY (Tentative Draft No.2,
1995) [hereinafter Tentative Draft].
7. See infra notes 18-22 and accompanying text.
8. RESTATEMENT (SECOND) OF TORTS § 402A (1965).](ViewImageLocal?handle=hein.journals/tenn63&div=15&collection=&method=preview&ext=.png&size=3)
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