Toward a Revised Definition of 'Product' Under the Restatement (Third) of Torts: Products Liability

The application of strict tort liability to new industries and areas of society has proceeded at an unprecedented rate and has led to an explosion of lawsuits, raising the level of liability uncertainty within the business world. Products liability law therefore requires a definition of product that recognizes new items that may not qualify as products under current guidance but nevertheless should be governed by existing products liability law, based on the policy objectives undergirding this field of law. Such a definition also should reconcile any inconsistencies in products liability and sales law by equating products and U.C.C. goods. The American Law Institute recently issued the Restatement (Third) of Torts: Products Liability. The definition of product included in the new restatement--although more detailed than that in previous restatements of torts law--is unnecessarily restrictive, is ill-suited for application to emerging technologies, and does little to harmonize products liability and sales law. This Article recommends revisions to the recently approved definition to better restate products liability law while harmonizing it with sales law and, perhaps more importantly, provide flexibility for the continued evolution of this dynamic field of law while staying true to the policy considerations supporting strict liability. The Article reviews the various definitions of product that have been used by courts in the context of strict products liability, traces the judicial application of these definitions, discusses the dilemma of creating a bright line of demarcation between products and services in light of emerging technology, analyzes the need to reconcile products liability law with emerging technologies and with sales law, and concludes by offering recommended revisions to the product definition to better accommodate the inevitable expansion of strict products liability.