St. Mary's Law Journal
More than a decade has elapsed since an initial attempt was made to discern the true meaning of the term product in products liability litigation. At the time, a brief history of events leading up to the adoption of Section 402A of the Restatement (Second) of Torts was outlined, and it was emphasized that what had at first seemed so simple subsequently proved to be somewhat complex.
An examination of cases involving the sales/service transaction, as well as those involving real estate, blood, electricity, component parts, water, computer software, and ideas, sometimes held that what was involved was a product. This would at first glance appear to be contrary to the meaning of the term. What became clear, however, is that courts had generally rejected a primary dictionary definition of product, and instead adopted a policy-based technique to determine whether the transaction before them deserved Section 402A protection. They did not start with the issue of whether a product was involved, but rather determined whether the transaction was one which should come under the umbrella of strict products liability.
This process led to some unusual results. Subject matter that no one would have ever considered as such was deemed to be a product. As such, the search for the meaning of the term product in products liability litigation continues. At times whimsical, and at others sublime, the cases continue their path of exploration, but review of these cases, particularly products liability cases involving food, may lead to a logical guideline for the policy-based determination method to follow.
Charles E. Cantú, A Continuing Whimsical Search for the True Meaning of the Term “Product” in Products Liability Litigation, 33 St. Mary's L.J. 455 (2004).