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To what extent, if any, should courts hold defendants liable for harm caused by hazards associated with the unduly and unavoidably dangerous aspects of goods they produce and market?

Where manufacturers might have eliminated unreasonable risks arising from the manufacture or design of a product, or from the information (or lack thereof) conveyed by a product's labeling, the tort system traditionally has provided injured victims with an opportunity to obtain compensation for injuries attributable to these risks. Moreover, even where risks from manufacturing or construction defects could not have been eliminated with the exercise of reasonable care, the courts have permitted plaintiffs to recover under a theory of strict tort liability.

But suppose no warning or change in design could have made the product reasonably safe, and the only way the risk in question could have been eliminated was by keeping the product out of the stream of commerce. In such cases, the dangers to be avoided were inherent in the nature of the product. Eliminating these dangers would have necessitated a decision not to have manufactured the product in the first place.

Whether liability should be imposed for unavoidable product risks has been an issue at the core of a spirited polemic, during the last decade-and-a-half, about how courts should respond to suits seeking to hold the makers of handguns liable in tort to plaintiffs shot by criminal assailants using these weapons.

Publication Citation

72 Chi.-Kent L. Rev. 87-128 (1996)