Top Law Schools

Hi all, quick question about product liability.

I'm confused about when to argue the 2nd Restatement versus the 3rd Restatement in a prima facie products liability case. Should we be arguing both in the alternative for the plaintiff, or should we argue the 2nd for the plaintiff and use the 3rd to rebut the plaintiffs prima facie case as the defense?

Also, should you be arguing manufacturing, design defects or failure to warn explicitly under the 2nd Restatement?

Let me know if you need any clarity on these questions. Thanks!

This is 100% professor/jurisdiction-dependent. But there are three possibilities:

1. Your professor will tell you how they expect you to reconcile the R2 and R3 approaches.
2. Your professor will tell you which approach should be applied to each relevant question on the exam.
3. Your professor will expect you to know some of the different state approaches and use those states as settings for different fact patterns.

I agree this is question dependent. Assuming the question is stateless (applying other jurisdiction's doctrine) the rationale in our class is that manufacturers must comply with all jurisdictions as they could brought to suit any, so we're usually arguing both in the alternative for the plaintiff. I also think you'll be fine arguing manufacturing/design/warning under the second as those concerns go into the analysis of if it was unreasonably dangerous anyway.

i still can't decide whether profs do a bad job of explaining what restatements are, or if 1Ls are too dumb to understand.

pancakes3 wrote:i still can't decide whether profs do a bad job of explaining what restatements are, or if 1Ls are too dumb to understand.

I will help you decide: law professors are completely useless. I don't know what I would do without Emmanuel, seriously.