Hofstra Law Review


Elizabeth Block


One commentator, in assessing Justice Traynor's "impressive performance" in decisions spanning two decades, cites as his particular contribution, the articulation of a distinct liability theory for consumers as opposed to injured parties in general. This issue of the Hofstra Law Review bears testimony to that contribution. The developing case law in products liability has been increasingly shifting its focus to the expectations of consumers and away from the customs of the trade. It is this development which has suggested the theme of this comment. What is proposed here is an extension of what is already accepted in products liability case law; namely, that eminently foreseeable human behavior may determine the reasonable use of a product and thus define the manufacturer's responsibility. The determination of what is foreseeable however, is typically based on an unselfconscious reliance on conventional wisdom. Although this would seem to have been adequate in many cases, such a method of acquiring knowledge about human behavior becomes increasingly unreliable as products and the behaviors which they call forth become more complex. Thus, this comment will suggest: (1) How a more sophisticated appreciation of the methods and techniques which have been developed in the behavioral sciences can be applied to tighten the theoretical definition of defectiveness and (2) how knowledge obtained through these methods could be applied in the courts to increase the reliability of the decision making process in specific disputes and to develop general guidelines for the future.

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