Principles of Products Liability
Author:
Geistfeld, Mark A.
Edition:
3rd
Copyright Date:
2020
27 chapters
have results for products liability
Part Two 12 results (showing 5 best matches)
- Consumer expectations do not justify absolute liability, limiting the rule of strict liability to defective products. Such liability utilizes tort damages only as a means of giving product sellers a financial incentive to supply nondefective products.
- We can now use these concepts to analyze the important doctrines of products liability. Doctrinal analysis also provides further opportunity to understand the fundamental concepts and principles of products liability. The same concepts find repeated application in varied doctrinal issues, enabling one to better understand a concept and its implications. Indeed, the repeated application of the same concepts across doctrinal issues helps to establish them as the principles of products liability.
- For products that are unable to minimally perform one of their ordinary functions, the implied warranty and the negligence principle each provide an independently sufficient doctrinal basis for subjecting the product sellers to strict tort liability for injuries caused by the product malfunctions. Both rely on the
- The case law has not developed a clear conception of consumer expectations for cases in which products do not malfunction. Not only do courts disagree about the relation between the consumer expectations and risk-utility tests, they also disagree about whether the substantive rationale for products liability is based on the implied warranty or the negligence principle.
- When a product performs more dangerously than expected by the ordinary consumer with ordinary knowledge common to the community, it is “unreasonably dangerous” as required by the
- Open Chapter
Chapter 7. Design Defects 129 results (showing 5 best matches)
- When a product satisfies the actual safety expectations of the ordinary consumer, it is not “unreasonably dangerous” and not subject to strict products liability. For purposes of strict products liability, the “unreasonably dangerous” requirement ensures that sellers are not subject to liability merely because a consumer was injured by a known risk that is necessarily inherent in products of this type, a form of (categorical) liability that would drive these products from the market.
- In addition to having a greater scope of potential liability, design defects are also governed by liability rules that are more complex and ambiguous than those governing other defects. These two factors have made “the determination of when a product is actionable because of its design” one of “the most agitated, controversial questions . . . in products liability law.”
- In principle, the dangers that inhere in a category of products, such as cigarettes, could render any product within the category unreasonably dangerous or defective, regardless of its particular design. The only way to eliminate the inherent danger is to eliminate the category altogether. A claim of
- Once the implied warranty rationale for strict products liability is fully developed, the relation between the consumer expectations and risk-utility tests becomes clear. The ordinary consumer expectations test is sufficient for determining whether a product malfunctioned, explaining why “[t]he overwhelming majority of cases that rely on consumer expectations as the theory for imposing liability do so only in res ipsa-like situations in which an inference of defect can be drawn from the happening of a product-related accident.” For “unreasonably dangerous” products that do not malfunction, the consumer expectations test is modified to incorporate the risk-utility test. The majority approach of combining the two tests is fully justified by the implied warranty rationale for strict products liability.
- rule of strict products liability is based on the implied warranty. Though initially formulated to address product malfunctions, the liability rule can be extended to evaluate the designs of products that do not malfunction, yielding the risk-utility test to protect consumer expectations of reasonably safe product performance. By contrast, the rejects strict products liability and conceptualizes the risk-utility test as “a reasonableness test traditionally used in determining whether an actor has been negligent.”
- Open Chapter
Chapter 15. Defenses Based on Consumer Conduct 59 results (showing 5 best matches)
- Contracting would incentivize sellers to distribute unreasonably dangerous products if courts enforced contractual limitations of tort liability. At the time of purchase, a consumer knows that the manufacturer has completed its investments in product safety. Reasoning that tort liability is no longer needed to ensure the safety of this particular product, the consumer has an incentive to waive liability in exchange for a reduction in product price. All consumers have the same incentive, and so manufacturers and other product sellers could predict that they will rarely be subject to tort liability. The resultant lack of liability would remove the financial incentive for product sellers to comply with the tort obligation in the first instance, and so they will predictably cut costs by supplying unreasonably dangerous products—an outcome that violates the public policy of tort law.
- Product misuse can limit liability in different ways. Courts, however, have not always clearly delineated these differences, which explains why the “relevance of plaintiff’s conduct to the plaintiff’s recovery in strict tort products liability is one of the most confusing and perplexing areas of products liability doctrine.” relevant distinctions are drawn, the appropriate role of product misuse in any given case becomes clear:
- Even if a plaintiff proves the prima face case, the defendant may be able to avoid or reduce its liability by establishing an affirmative defense. Most of the important defenses in product cases depend on different types of consumer conduct—contractual waivers of liability, assumption of risk, and product misuse. These defenses require consideration, once again, of the appropriate interplay between consumer choice and tort liability.
- Consumers can agree to a contractual provision that waives any tort right they would otherwise have to recover for injuries caused by defective products. Similarly, sellers can seek to avoid such liability by disclaiming responsibility under the product warranty.
- These same considerations are relevant in product cases, but courts typically do not expressly recognize the defense unless the product is used for recreational purposes. Courts instead reach the same outcome by rejecting claims brought by consumers who rely on categorical liability to establish defective design.
- Open Chapter
Chapter 1. The Doctrinal Development of Products Liability 126 results (showing 5 best matches)
- concurrence played a pivotal role in the widespread adoption of strict products liability. In 1961, the American Law Institute adopted a draft rule imposing strict tort liability on sellers of food products, leaving open the question whether the rule should apply to other products. In 1962, the draft extended strict liability to both food and products for “intimate bodily use,” and the Institute once again approved the draft. In 1963, the California Supreme Court accepted Traynor’s argument for strict products liability in the landmark case
- The influence of the warranty rationale for strict products liability is now global in scope. The products liability regimes in a number of countries rely on liability standards substantively similar to those in the . The European Economic Community Directive on Liability for Defective Products states that “[t]he producer shall be liable for damage caused by a defect in his product.” A product is defective if it “does not provide the safety which a person is entitled to expect, taking all circumstances into account.” The Directive has influenced products liability legislation in other countries, including Japan.
- Restatement (Third) of Torts: Products Liability
- The dynamic created by the workers’ compensation statutes undoubtedly facilitated the development of strict products liability. After all, if negligence liability did not effectively regulate systems of workplace safety, then presumably negligence liability was also ineffective in regulating systems of product safety. Just as strict liability would reduce workplace injuries by giving employers an incentive to adopt safer systems of manufacture and production, strict liability would reduce product injuries by giving product manufacturers an incentive to adopt safer systems of quality control. For an astute observer of the tort system like Justice Traynor, the connection was obvious.
- When a rule of strict liability is justified by the negligence principle, it is fundamentally consistent with complementary rules of negligence liability. Strict liability applies only when evidentiary problems overly impair negligence liability, with negligence liability governing all other cases. Hence the can consistently adopt a rule of strict liability for construction or manufacturing defects based on evidentiary problems, while employing rules of negligence liability for the remaining types of product defects involving product designs or warnings.
- Open Chapter
Chapter 16. The Scope of Strict Products Liability as Defined by the Nature of the Transaction 102 results (showing 5 best matches)
- The rule of strict liability in the product in a defective condition,” a provision not limited to new products. Nevertheless, whether strict liability is limited to these transactions has been called “[t]he big question in modern products liability litigation.” The decisions are “sharply split,” with “a majority of courts” holding that “strict liability in tort ordinarily does apply to the sale of used products unless the seller repaired or modified the product or otherwise caused the defect.”
- As is true for the properties of a “sale,” courts must also determine the properties of a “product” that is properly governed by strict products liability. Once again, the inquiry is guided by the substantive rationale for strict products liability. In these cases, however, courts often limit strict liability for reasons unrelated to the substantive differences between products and services, producing a confusing body of case law.
- Unlike popcorn and ordinary consumer goods, medical products and pharmaceuticals are “unavoidably unsafe” products that are not subject to strict liability under comment The deterrence properties of strict liability would produce socially problematic outcomes for products that promote public health and safety, justifying the immunity of medical products and pharmaceuticals from strict liability. For this same policy reason, the nonmanufacturing sellers of these products should also be exempt from strict liability.
- rule of strict products liability applies to “[o]ne who any product in a defective condition unreasonably dangerous to the user or consumer or to his property. . . .” For cases in which a downstream product seller neither created the defect nor negligently failed to discover it, what justifies strict liability? The question is not adequately answered by the dictionary definitions of “sale” and “product.” To determine the meaning of these requirements, courts rely on the policy rationales for strict products liability.
- rule of strict products liability is conditioned on the “sale” of a product, courts have interpreted this requirement to encompass the commercial distribution of a defective product. Strict products liability does not depend on the requirements of contract law, and so a completed sales transaction is not necessary.
- Open Chapter
Chapter 3. The Problem with Absolute Liability 32 results (showing 5 best matches)
- The rejection of absolute liability has a direct implication for one of the original rationales for strict liability, that “product sellers as business entities are in a better position than are individual users and consumers to insure against such losses.” The insurance rationale justifies liability for any product-caused injury suffered by the consumer, not merely those caused by a defect in the product. The universal rejection of absolute liability, therefore, implies that the insurance rationale is not an independently sufficient reason for subjecting a product seller to strict liability.
- The universal rejection of absolute liability is puzzling. It cannot be squared with one of the original justifications for strict products liability, which maintains that tort compensation is a desirable form of insurance that is best supplied by the manufacturer. The need for compensation or insurance is created by a product-caused injury, regardless of whether that injury is attributable to a defect in the product. If insurance is best supplied by manufacturers, why do courts limit strict liability to defective products? What is the problem with absolute liability?
- To minimize insurance costs, the ordinary consumer does not reasonably expect to receive tort compensation on an “insurance basis.” Consumers reasonably expect only those forms of liability that minimize consumer costs by promoting product safety. Consumer expectations explain why courts reject absolute liability and instead limit strict products liability to defective products.
- Consequently, courts now recognize that the “loss spreading” or insurance rationale provides “only the part of a makeweight argument” in favor of liability. Loss spreading is a positive attribute of tort liability, but one that is not independently capable of justifying strict liability. Tort damages undeniably benefit the injured plaintiff, but the cost of that compensation is incurred by all consumers and can be justified only when liability promotes product safety, explaining why strict products liability is limited to defective products.
- Aside from the compensatory obligation, absolute liability does not impose any behavioral obligation on manufacturers. In deciding how to proceed, a manufacturer will try to minimize its total costs. Recognizing that it is liable for all product-caused injuries, a manufacturer subject to absolute liability will reduce product accidents with cost-effective investments in product safety.
- Open Chapter
Chapter 12. Factual Causation 192 results (showing 5 best matches)
- An alternative rationale for the heeding presumption can be derived from the rule of strict products liability. Like negligence liability, strict liability requires proof of causation. However, the causal inquiry differs for the two liability rules, and that difference explains why the heeding presumption does not reduce the plaintiff’s burden of proof in cases of strict products liability.
- Ordinarily, the element of causation is compatible with the safety objective of products liability. A manufacturer that incurs liability for the injuries caused by its defective products has an adequate financial incentive to supply nondefective products.
- “Whether a product defect caused harm to persons or property is determined by the prevailing rules and principles governing causation in tort.” the concern for safety shapes the rules of products liability, we must now consider whether the fundamental tort requirement of causation limits the ability of products liability to attain its safety objective.
- In some cases, however, plaintiffs face insurmountable evidentiary problems and cannot prove causation. If these cases occur in a highly predictable, systemic manner, the seller of a defective product knows that it is effectively immunized from liability for this class of cases. Under these conditions, the element of causation can erode incentives and conflict with the safety objective of products liability.
- When the liability rule requires that the defect must actually cause physical harm, the manufacturer can avoid liability in conflict with the deterrence objective. In the market-share cases, the plaintiff can only identify a group of manufacturers that distributed the generic defective products, but not the particular product that caused her injury—an issue of individualized causation. Under the ordinary evidentiary standard, each manufacturer would avoid liability on the ground that its product, more likely than not, did not cause the plaintiff’s injury. Other plaintiffs would face the same problem. Across all cases, the manufacturers would avoid liability, undermining their incentive to supply nondefective products.
- Open Chapter
Introduction 28 results (showing 5 best matches)
- When a product causes physical harm, a question of tort law arises. Does the victim have a right to receive monetary compensation for the injury from the product seller? The answer is determined by the set of tort rules known as products liability. Like tort law more generally, products liability is a form of civil liability not based on contract that determines whether one party (the commercial distributor of a product) is liable for having caused harm to another (consumers or bystanders injured by the product). The extent to which well-established tort principles justify the rules of products liability, though, is less clear.
- Not surprisingly, the political controversy over products liability finds expression in doctrinal disputes. According to the , the rationale for strict products liability is that a defective product frustrates consumer expectations of safe product performance. The accordingly evaluates the defectiveness of a product with the , in sharp contrast, evaluates the defectiveness of a product design or warning with a negligence rule based on cost-benefit analysis, known as the rule of strict liability appears to fairly protect consumer expectations of safe product performance The most important doctrinal question in products liability today is whether the negligence framework adopted by the rule of strict products liability.
- Although products liability is an ideal subject for the advanced study of tort law, the book should also be useful for the general study of torts. Most casebooks on tort law understandably devote considerable attention to products liability. The approach taken here locates products liability within tort law more generally, emphasizing the important similarities to and differences from other types of tort actions. By analyzing products liability in this manner, one can learn a great deal about tort law.
- For more extensive coverage, see the multi-volume treatises: Owen & Davis on Products Liability; Shapo on Products Liability. There is also a useful one-volume treatise: Owen, Products Liability Law.
- The origins of products liability can be traced to the ancient English laws that subjected the sellers of contaminated food to strict liability. In the influential 1944 case Justice Roger Traynor of the California Supreme Court argued that the contaminated-food cases justify a tort rule making product sellers strictly liable for physical harms caused by defective products. In 1965, this rule of strict products liability was adopted by the American Law Institute in section 402A of the , and then by almost all states within the next ten years. The dozen or so pages devoted to strict products liability in the
- Open Chapter
Chapter 4. Strict Products Liability 2.0 35 results (showing 5 best matches)
- , the source of strict products liability. Version 1.0 of the liability rule was formulated to address malfunctioning products, but its implied warranty rationale enabled courts to modify the consumer expectations test to evaluate defective products that do not malfunction. By deriving the risk-utility test from the tort version of the implied warranty, strict products liability 2.0 provides a comprehensive framework that accounts for the full range of product defects.
- As many courts have observed, the risk-utility test for evaluating defects in product designs and in warnings is functionally equivalent to negligence liability. adopts a negligence rationale for the risk-utility test and concludes that strict products liability is a “rhetorical preference” that ought to be rejected for “perpetuating confusion” about the substantive basis of liability. “explicitly abandons the doctrine of ‘strict’ products liability for design and warning defects, which comprise the bulk of products liability litigation.”
- As the default rule of tort law, negligence liability would seem to be markedly superior to the implied warranty for establishing the general foundation of products liability. Why do courts insist that strict products liability is the appropriate framework?
- By rejecting the consumer expectations test in favor of a negligence-based rationale for products liability, the runs into problems across the distinctive elements of the tort claim—duty, breach, and causation. Strict products liability avoids this unnecessary confusion because it frames the liability inquiry in the normatively appropriate manner.
- The protection of consumer expectations normatively distinguishes strict products liability from ordinary negligence cases. Consequently, strict products liability provides strong rationales for doctrines that are much harder to justify, and therefore much more contentious, within the more general negligence-based framework of the . For good reasons, the majority of courts have rejected the liability framework of the in favor of strict products liability 2.0.
- Open Chapter
Part One 6 results (showing 5 best matches)
- The implied warranty defines a product defect by reference to the frustration of consumer expectations concerning safe product performance, whereas the negligence principle defines a product defect as an unreasonable risk of physical harm. Unless these two definitions are equivalent, the substantive content of strict products liability will depend on whether the liability rule is justified by the implied warranty or the negligence principle.
- Having two separate doctrinal bases for strict products liability may seem to be a good thing. The overlap of the doctrines, though, might be limited to cases of product malfunctions. What if the product performed just as the manufacturer intended, but the plaintiff claims that the product design or warning is defective? According to many courts and commentators, the implied warranty and the negligence principle can justify different liability outcomes in these cases. Such a difference between the liability rules would be quite problematic, as the most important forms of products liability involve defects in product designs or warnings.
- As compared to other forms of tort liability, the regime of strict products liability appears to be novel and new. The appearance is deceptive. Strict products liability is based on firmly established tort principles. The implied warranty and the negligence principle each provide a sufficient, independent basis for imposing strict liability upon the seller of a product that is defective for not being able to minimally perform one of its ordinary functions, such as a bottle of soda that explodes.
- This foundational issue, which has always been lurking in the case law, has become one of the most contentious issues in products liability. The implied warranty supplies the basis for the liability rule in the , whereas the negligence principle underlies the liability rules in the . The definition of a product defect differs in the two , fueling an ongoing controversy regarding the substantive basis of strict products liability.
- The different liability rules in the lend credence to the claim of an astute foreign observer that products liability law in the U.S. involves “a To make sense of the case law, we first need to address a number of fundamental questions. Why did the doctrinal development of strict products liability result in differing liability rules for design and warning defects? What is the content of a liability rule based on consumer expectations? How does that rule relate to the risk-utility test? By tackling these conceptual questions, we will significantly enhance our ability to analyze and understand doctrinal issues.
- Open Chapter
Chapter 10. Prescription Drugs, Medical Devices, and the “Unavoidably Unsafe” Product Exemption from Strict Liability 75 results (showing 5 best matches)
- Under section 402A, the manufacturer is strictly liable for a product malfunction that frustrates consumer expectations, even if it “has exercised all possible care in the preparation and sale of the product.” Strict products liability forecloses any defense based on risk-utility evidence in the case of a malfunction. By allowing the manufacturer to employ risk-utility evidence to avoid liability for a malfunction, comment provides a true affirmative defense that exempts the manufacturer from strict products liability. When applied to product malfunctions, comment
- exempts “unavoidably unsafe” products only from strict products liability; the sellers of these products are still subject to negligence liability.
- is based on the policy conclusion that strict liability could disrupt the supply of drugs and vaccines, thereby limiting the potential for these products to promote public health and safety. Like drugs and vaccines, other types of products have this same purpose. In principle, there is no reason why other types of life-saving products cannot be “unavoidably unsafe” and exempt from strict liability.
- is based on a safety principle that exempts an “unavoidably unsafe” product from strict liability for certain types of malfunctions in order to further the public interest in health and safety. The imposition of strict liability would not make the product safer—it is “unavoidably unsafe.” Instead, strict liability could produce a self-defeating safety outcome by disrupting the supply of a product that furthers the public interest in health and safety. In cases of this type, application of strict liability would be contrary to the safety rationale for strict products liability, justifying the limitation of strict liability embodied in comment
- There has been an explosion of products liability claims filed against the manufacturers of drugs and medical devices. In 2006, drug lawsuits accounted for more than a third of all product liability filings in federal courts, making the pharmaceutical industry “the nation’s No. 1 target of products liability lawsuits.”
- Open Chapter
Chapter 5. Construction or Manufacturing Defects 33 results (showing 5 best matches)
- The claim that different types of defects depend on different “concepts of responsibility” could have profound implications. If the substantive rationale for strict products liability depends on the type of defect, then the precedential value of a particular rule will be limited to the type of defect governed by that rule. Products liability would not be a substantively unified body of law, but merely a collection of disparate rules governing different types of product defects. The rationale for subjecting manufacturing defects to a rule of strict liability determines whether there is a substantive rationale for products liability in general.
- Manufacturers knowingly choose risk levels in designing products. By not incorporating an airbag into the design of a motor vehicle, the manufacturer has decided to increase the risk of injury. If a manufacturer’s deliberate risk choices justify strict liability for manufacturing defects, then its deliberate risk choices should also justify strict liability for design decisions. accident is attributable to the design of the product, and so such a rule of strict liability is tantamount to absolute liability. That form of tort liability is uniformly rejected and cannot be justified by consumer expectations, implying that the rationale for strict liability does not stem from the fact that manufacturers deliberately choose risk levels and the associated amount of product-caused injuries.
- The multiple rationales for strict liability invoked by the are ultimately unified by the need to protect consumer expectations of product safety with a rule of strict liability—the rationale for the implied warranty. The implied warranty also justifies the risk-utility test for design and warning defects, thereby unifying the entire set of liability rules within the comprehensive framework of strict products liability 2.0.
- The final rationale for strict liability is that it “discourages the consumption of defective products by causing the purchase price of products to reflect, more than would a rule of negligence, the cost of defects.” This rationale depends on consumers being uninformed as required by the tort duty, in which case they do not have information about the risk of defect that would enable them to accurately assess their expected injury costs. Strict liability solves this informational problem by incorporating these injury costs into the price of the product.
- further justifies strict liability with other rationales that withstand scrutiny. The first one is that strict liability justifiably applies to manufacturing defects because these products “disappoint reasonable expectations of product performance.” In addition to being a valid rationale, the protection of consumer expectations entails the remaining reasons for strict liability that the
- Open Chapter
Chapter 11. Products Liability in the “Age of Statutes” 55 results (showing 5 best matches)
- “In the past two decades, federal preemption of state law products liability claims has emerged as one of the most important issues in modern products liability.” The trend started in the early 1990s, following a decision by the U.S. Supreme Court that federal law governing the labeling of cigarettes preempts a products liability claim seeking to require warnings in addition to those mandated by the federal law. Since then, the Court has decided a large number of other preemption cases, often finding that federal law preempts products liability claims based on state law.
- The increased reliance on preemption is altering the doctrinal landscape of products liability. For example, the Court’s preemption analysis either does bar or most likely will bar most design defect claims involving drugs, medical devices, and vaccines. Tort claims alleging that these products are defectively designed implicate the “unavoidably unsafe” product exemption from strict products liability, and so preemption will render that doctrine largely irrelevant unless courts extend it to other types of life-saving products like autonomous vehicles.
- One area of the law in which the doctrine of preemption has been especially difficult to interpret has been tort law, and particularly product liability law. State product liability law operates in fields that are entwined with federal regulation. Cigarettes, medical devices, pesticides, and motor vehicles are examples of the many products that traditionally have been subjects of both federal regulation and state common law actions. Federal statutes and regulations often incorporate measures to assure product safety, but the statutes rarely include provisions to compensate for personal injuries or other damages associated with the regulated products. Rather, federal law and state common law exist in a sometimes uncomfortable balance in our federalist society. This discomfort is enhanced by the lack of clear direction from Congress in its statutory enactments and from federal agencies in their administrative regulations. Since the 1990s, product sellers have argued with increasing...
- To determine how a statutory or regulatory safety standard affects a tort claim, one must compare the legislative risk-utility decision to the risk-utility decision implicated by the plaintiff’s allegation of defect. Doing so largely eliminates the confusion sowed by the doctrine of implied preemption, further illustrating the importance of risk-utility analysis in products liability.
- Like the doctrine of negligence per se, this established tort principle also applies to products liability claims:
- Open Chapter
Chapter 17. Bystander Injuries 54 results (showing 5 best matches)
- By focusing almost exclusively on the consumer, our approach so far reflects the orientation of products liability. The consumerist orientation stems from the implied warranty, which is the primary rationale for strict products liability in the One who distributes a product into the market makes an implied representation to consumers that the product will perform in a reasonably safe manner. The product transaction makes no representation to someone who does not use the product and typically gives it no consideration whatsoever—a bystander “expresses no opinion” whether strict products liability applies “to harm to persons other than users or consumers.”
- The rule of strict products liability has since evolved to include defects in the designs of products that do not malfunction, creating an important difference between consumers and bystanders. As the California Supreme Court observed in its seminal decision to extend strict products liability to bystanders,
- Once situated within its appropriate normative framework, strict products liability necessarily has a limited scope. When defective products injure bystanders, the tort issue is not wholly defined by the protection of consumer safety expectations—the distinctive normative attribute of strict products liability. Bystander cases instead turn on the general principles of tort law, which justify a negligence-based framework in product cases that is normatively different from the implied warranty rationale for strict products liability. Rather than posing an intractable problem for the consumer expectations test, bystander injuries fully reveal the normative structure of products liability law.
- Chapter 1, section I (describing the development of the implied warranty rationale for strict products liability); Chapter 4 (describing the further development of the implied warranty rationale to encompass defects in products that do not malfunction, thereby incorporating the risk-utility test into the rule of strict products liability).
- Strict products liability tailors the liability rules to account for the contractual setting in which consumers and manufacturers interact, limiting the tort duty to cases in which uniformed consumers cannot adequately protect their interests by contracting. Strict products liability protects consumer expectations in order to further the value of informed consumer choice—a norm that is not appropriate for cases in which consumer choices expose bystanders to excessive risk.
- Open Chapter
Chapter 2. Consumer Expectations 95 results (showing 5 best matches)
- To be sure, the answer to this question does not determine whether the products liability system is desirable, and one can argue about the extent to which products liability increases product price.
- Unless the defect is patent, a product that malfunctions frustrates the ordinary consumer’s actual expectation that the product is minimally capable of performing its ordinary functions. The malfunction renders the product both “unreasonably dangerous” and defective under the section 402A rule of strict liability, subjecting the seller to strict tort liability.
- rule of strict products liability. The rule restated case law governing malfunctioning products like contaminated food and exploding soda bottles. In addition to the requirement of defect (malfunction), the liability rule also requires that the product be “unreasonably dangerous” or “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Ordinary knowledge depends on the costs that the ordinary consumer incurs to learn about product risk. If this knowledge is limited and does not enable the ordinary consumer to understand the full danger of the product performance in question, then the product is “unreasonably dangerous” and governed by strict products liability. By asking whether the consumer is sufficiently well informed about safe product performance, the “unreasonably dangerous” requirement in section 402A identifies the conditions under which the
- After adopting section 402A, courts began to apply the rule to products that did not malfunction but nevertheless had defective designs or warnings. Although this form of liability departs from the black letter of section 402A, the implied warranty rationale for strict products liability enabled this type of development.
- Once actual consumer expectations are distinguished from reasonable consumer expectations, the logic of strict products liability becomes fully apparent. When buyers are not adequately informed, their expectations can be frustrated in a manner that contract law does not redress. To protect the expectation interest in these cases, tort law imposes a duty on sellers to provide the amount of product safety that would be chosen by consumers if they were adequately informed. By formulating the liability rules in this manner, strict products liability instantiates the value of informed consumer choice.
- Open Chapter
Chapter 6. Product Malfunctions 68 results (showing 5 best matches)
- rule of strict products liability does not distinguish between manufacturing and design defects. This liability rule restates the case law governing malfunctioning products, yielding an inquiry for defect—the ordinary consumer expectations test—that identifies product malfunctions.
- Strict products liability also requires proof of defect or breach of the duty. To satisfy this requirement, the plaintiff can prove that the product did not conform to the manufacturer’s manifest intentions as embodied in the product design. These manufacturing defects stem from a failure of quality control. The ordinary consumer reasonably expects the manufacturer to guarantee that its products satisfy quality-control standards. Defects of this type frustrate the reasonable expectations of the ordinary consumer, subjecting the sellers to strict products liability.
- Strict products liability does not suffer from this problem. By defining a product malfunction as the violation of the consumer expectations test,
- Although a construction or manufacturing defect is often the root cause of a product malfunction, the direct proof of such a defect is different from the circumstantial proof of malfunction. Both are subject to strict liability, but their different evidentiary requirements have important implications for the structure of strict products liability.
- Product malfunctions, paradigmatically illustrated by contaminated food and exploding soda bottles, are the source of products liability law. Although contaminated food and exploding soda bottles undoubtedly malfunctioned—the products did not minimally perform one of their ordinary functions—the attributes of a malfunction have not been clearly specified. The inquiry seems to be, “We know it when we see it.”
- Open Chapter
Chapter 8. Warning Defects 98 results (showing 5 best matches)
- The paucity of toxicity data for most chemicals and many drugs strongly suggests that tort liability is not creating a sufficient incentive for manufacturers to discover new product risks. Plaintiffs are usually unable to prove that a manufacturer should have known about a product risk, effectively immunizing manufacturers from liability for not conducting reasonable research programs into potential product hazards.
- To remedy this problem, tort law obligates sellers to provide product warnings that enable consumers to make informed risk- utility decisions. “Any . . . product user has a right to decide whether to expose himself to the risk.” The duty to warn is the most obvious instance in which strict products liability furthers the value of informed consumer choice.
- In addition to product risks that were foreseeable at the time of sale, the duty to warn in most states also encompasses risks that the seller discovers or should discover after having sold the product. By obligating sellers to monitor product risks following commercial distribution, the post-sale duty to warn complements the duties that limit liability to risks that were foreseeable at the time of sale.
- Whereas a product recall enables the manufacturer to remedy a defect in the design of the product, a post-sale warning does not. Simply alerting consumers to the existence of a design defect might help them to mitigate that risk, but it does not otherwise cure the defect. Product sellers cannot avoid liability for defective design by subsequently warning about the safety problem.
- The European Economic Community Directive on Liability for Defective Products allows the producer to avoid liability by showing “that the state of scientific or technical knowledge at the time he put the product into circulation was not such as to enable the existence of the defect to be discovered.” Council Directive 85/374/EEC of July 25 1985 on the Approximation of the Laws, Regulations and Administrative Provisions of the Member States Concerning Liability for Defective Products, art. 7(e), 1985 O.J. (L 210) 29. This article, commonly called the Product Liability in Comparative Perspective 167, 168–69 (Duncan Fairgrieve ed. 2005) (summarizing adoption of defense by members of the European Union).
- Open Chapter
Chapter 14. Tort Damages and the Types of Compensable Injuries 77 results (showing 5 best matches)
- The economic loss rule has been controversial, generating a “particularly fierce battleground in products liability.” If the defective product had caused physical damage to something other than the product itself—for example, if the defect caused the product to catch fire and burn other property—the seller would be liable for the ensuing economic harms like lost profits. Why should liability for economic loss turn on the fortuity of whether the defect caused physical harm to something other than the product itself?
- The limitations of liability for stand-alone emotional harms in product cases are based on ordinary tort rules. Like the rule of strict products liability in the the liability rules governing defective products in the has a separate rule governing pure economic losses (discussed in the last section), but there is no provision for the related class of emotional harms. This approach is based on the unexamined premise that the ordinary tort rules limiting liability for stand-alone emotional harms are appropriate in product cases, yet it is not clear why that assumption is valid.
- For good reasons, the economic loss rule in product cases substantively differs from the other tort rules that limit liability for pure economic loss. Why, then, do ordinary tort rules limit liability for stand-alone emotional harms foreseeably caused by defective products?
- The economic loss rule places the risk of pure economic loss within the exclusive domain of contract law, thereby excluding that risk from the tort duty of product sellers. This basic attribute of the rule further illustrates the extent to which contract law shapes the rules of products liability.
- (“[W]e believe that the incentive to manufacture safe products remains unabated under the [economic loss rule]. Where the product causes personal injury or other property damage, the manufacturer may yet be subject to liability in tort. Because no manufacturer can predict with any certainty that the damage his unsafe product causes will be confined to the product itself, tort liability will continue to loom as a possibility. Therefore, in our view, the incentive to build safe products is not diminished.”) (paragraph structure omitted).
- Open Chapter
Chapter 9. The Relation Between Warnings and Product Design 33 results (showing 5 best matches)
- As section 402A recognizes, a seller can incur negligence liability by providing an unreasonably dangerous design for products that do not malfunction. does not displace this independent duty, which courts subsequently incorporated into strict products liability by extending the implied warranty to products that do not malfunction, yielding the risk-utility test for identifying defects in the design of these products. Because this development extends the implied warranty beyond the black letter of section 402A, the liability rule is not limited by particular provisions of section 402A, such as comment that address the different problem of product malfunction.
- This type of proof satisfies the liability rule in the ; it shows that the alternative design “can be reasonably implemented and the risks reasonably designed out of the product,” and so “adoption of the safer design is required over a warning.” The liability rule in the
- Restatement (Second) § 402A cmt. a (“The rule stated here is not exclusive, and does not preclude liability based upon the alternative ground of negligence of the seller, where such negligence can be proved.”); § 398 (stating rule of negligence liability based on the manufacturer’s failure to exercise reasonable care in designing the product).
- rule of strict products liability, comment must be interpreted within its historical context. Section 402A restated the case law concerning product malfunctions. addresses only that type of performance-based defect, it does not apply to claims of defective design for products that do not malfunction.
- Even though this product is safe for use when consumers read and heed the product warning, it is still defectively designed. “[I]t is unreasonable to omit from a product an easily installed and inexpensive safeguard that would prevent potentially fatal accidents and rely simply on the users’ ability and willingness to read, comprehend, and follow all instructions and warnings on all occasions.” The reasonable alternative design would reduce total costs for consumers, and so the ordinary consumer would reasonably expect such a design. The seller is subject to liability for breaching the duty to design, despite having provided a warning about how to safely use the product.
- Open Chapter
Chapter 13. Legal or Proximate Cause (a Reprise of Duty) 33 results (showing 5 best matches)
- Consumers, however, do not reasonably expect manufacturers and other sellers to serve as “insurers” of their products under a rule of absolute liability; the consumer expectations test accordingly formulates liability rules to reduce risk. Unless liability for an unforeseeable consequence somehow improves the manufacturer’s safety decisions, it lacks a safety rationale and cannot be justified by the reasonable safety expectations of the ordinary consumer. Properly understood, the rule of strict products liability does not justify liability for unforeseeable outcomes simply because they are a direct consequence of the product defect, contrary to the result attained by the directness test.
- “Importantly, some jurisdictions hold that a directness test is appropriate in strict products liability because foreseeability of harm is a negligence concept and not relevant in a strict liability case.” This rationale for the directness test is based on a particular conception of consumer expectations that some courts and commentators equate with strict liability. By definition, the ordinary consumer does not know about an unforeseeable risk, and so the materialization of such a risk would necessarily seem to frustrate consumer expectations of safe product performance.
- In defining the appropriate scope of liability for purposes of proximate cause, two types of approaches are possible. One is forward looking and determines proximate cause from the perspective of a reasonable manufacturer at the time of the relevant safety decision. The other approach relies on hindsight to trace the causal sequence directly backward, asking whether the injury was directly caused by the product defect. Each approach has substantial support in the case law. Should the choice between them depend on whether the cause of action is based on negligence or strict products liability?
- Owen, Products Liability Law § 12.2, at 752.
- 1 Owen & Davis on Products Liability § 12:4, at 286
- Open Chapter
Acknowledgments 2 results
- Products Liability Law
- In the course of learning tort law, I’ve accumulated way too many debts of gratitude to acknowledge properly here. My previously published work has enormously benefitted from the input of colleagues, and much of that work has been incorporated into this book. The most useful feedback has come from my students at NYU, in both Torts and Products Liability classes, who over the years have helped me to develop many of the ideas in this book. Any improvements in the exposition of this edition owe a great deal to the teaching experiences I’ve had with the two prior editions. Financial support was provided by the Filomen D’Agostino and Max E. Greenberg Research Fund of the New York University School of Law.
- Open Chapter
Table of Contents 45 results (showing 5 best matches)
- Chapter 1. The Doctrinal Development of Products Liability
- I.The Evolution of Strict Products Liability from the Implied Warranty
- II.The Evolution of Strict Products Liability from the Negligence Principle
- Chapter 4. Strict Products Liability 2.0
- C.Inherent Product Dangers and Categorical Liability
- Open Chapter
Index 94 results (showing 5 best matches)
- Directive on Liability for Defective Products, 20
- Thalidomide and adoption of strict products liability, 186–188
- Contaminated food, doctrinal origin of strict products liability, 12–19
- Blood contamination and strict products liability, 192–195
- Original source of strict products liability, 29, 44, 74–75, 99
- Open Chapter
A Note on Citations 8 results (showing 5 best matches)
- Unlike the traditional law review article or legal brief, I have not provided citations for every legal proposition. Aside from the citations for direct quotations, I have tried to give those citations that provide a good entry into the extensive literature on products liability and related issues in tort law. Many citations are repeated throughout the book, and for those I have used the following abbreviations:
- Owen & Davis on Products Liability
- David G. Owen & Mary J. Davis, Owen & Davis on Products Liability (4th ed. 2014 and 2019 update)
- Owen, Products Liability Law
- David G. Owen, Products Liability Law (3d. ed. 2015)
- Open Chapter
Table of Cases 7 results (showing 5 best matches)
- Asbestos Products Liability Litigation (No. VI), In re, 160
- DePuy Orthopaedics, Inc., Pinnacle Hip Implant Product Liability Litigation, In re, 358
- Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation, In re, 254
- Roundup Products Liability Litigation, In re, 262
- Zoloft Products Liability Litigation, In re, 261
- Open Chapter
- Publication Date: April 27th, 2020
- ISBN: 9781642425826
- Subject: Products Liability
- Series: Concepts and Insights
- Type: Hornbook Treatises
- Description: A state-of-the-art study of products liability, showing how ancient laws have evolved into liability rules capable of solving the safety questions raised by new or emerging technologies, ranging from autonomous vehicles to the Amazon online marketplace. The rule of strict products liability from the last century has been transformed into a more comprehensive liability regime—“strict products liability 2.0”—that incorporates the risk-utility test into the consumer-expectations framework of strict products liability. Across the important issues, this form of liability sharpens the inquiry about what’s at stake, supplying strong rationales for a host of otherwise contentious doctrines—from federal preemption to the relevance of scientific evidence in toxic-tort cases. The analysis throughout relies on extended discussion of the black-letter rules and associated controversies in the case law, providing a solid foundation for understanding this vitally important area of the law.
