The examples and perspective in this article deal primarily with the northern hemisphere and do not represent a worldwide view of the subject. Please improve this article and discuss the issue on the talk page. (December 2010)

Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause. Although the word "product" has broad connotations, product liability as an area of law is traditionally limited to products in the form of tangible personal property.^[1]

Product liability in the United States[link]

Theories of liability[link]

In the United States, the claims most commonly associated with product liability are negligence, strict liability, breach of warranty, and various consumer protection claims. The majority of product liability laws are determined at the state level and vary widely from state to state. ^[2] Each type of product liability claim requires different elements to be proven to present a successful claim.

Types of liability[link]

Section 2 of the Restatement (Third) of Torts: Products Liability distinguishes between three major types of product liability claims:

• manufacturing defect,
• design defect,
• a failure to warn (also known as marketing defects).

However, in most states, these are not legal claims in and of themselves, but are pleaded in terms of the theories mentioned above. For example, a plaintiff might plead negligent failure to warn or strict liability for defective design.^[3]

Manufacturing defects are those that occur in the manufacturing process and usually involve poor-quality materials or shoddy workmanship. Design defects occur where the product design is inherently dangerous or useless (and hence defective) no matter how carefully manufactured; this may be demonstrated either by showing that the product fails to satisfy ordinary consumer expectations as to what constitutes a safe product, or that the risks of the product outweigh its benefits.^[4] Failure-to-warn defects arise in products that carry inherent nonobvious dangers which could be mitigated through adequate warnings to the user, and these dangers are present regardless of how well the product is manufactured and designed for its intended purpose.

Breach of warranty[link]

Warranties are statements by a manufacturer or seller concerning a product during a commercial transaction. Warranty claims commonly require privity between the injured party and the manufacturer or seller; in plain English, this means they must be dealing with each other directly. Breach of warranty-based product liability claims usually focus on one of three types: (1) breach of an express warranty, (2) breach of an implied warranty of merchantability, and (3) breach of an implied warranty of fitness for a particular purpose. Additionally, claims involving real estate may also take the form of an implied warranty of habitability. Express warranty claims focus on express statements by the manufacturer or the seller concerning the product (e.g., "This chainsaw is useful to cut turkeys"). The various implied warranties cover those expectations common to all products (e.g., that a tool is not unreasonably dangerous when used for its proper purpose), unless specifically disclaimed by the manufacturer or the seller.

Negligence[link]

A basic negligence claim consists of proof of

1. a duty owed,
2. a breach of that duty,
3. the breach was the cause in fact of the plaintiff's injury (actual cause)
4. the breach proximately caused the plaintiff's injury.
5. and the plaintiff suffered actual quantifiable injury (damages).

As demonstrated in cases such as Winterbottom v. Wright, the scope of the duty of care was limited to those with whom one was in privity. Later cases like MacPherson v. Buick Motor Co. broadened the duty of care to all who could be foreseeably injured by one's conduct.

Over time, negligence concepts have arisen to deal with certain specific situations, including negligence per se (using a manufacturer's violation of a law or regulation, in place of proof of a duty and a breach) and res ipsa loquitur (an inference of negligence under certain conditions).

Strict liability[link]

Rather than focus on the behavior of the manufacturer (as in negligence), strict liability claims focus on the product itself. Under strict liability, the manufacturer is liable if the product is defective, even if the manufacturer was not negligent in making that product defective.

The difficulty with negligence is that it still requires the plaintiff to prove that the defendant's conduct fell below the relevant standard of care. However, if an entire industry tacitly settles on a somewhat careless standard of conduct (that is, as analyzed from the perspective of a layperson), then the plaintiff may not be able to recover even though he or she is severely injured, because although the defendant's conduct caused his or her injuries, such conduct was not negligent in the legal sense (if everyone within the trade would inevitably testify that the defendant's conduct conformed to that of a reasonable tradeperson in such circumstances). As a practical matter, with the increasing complexity of products, injuries, and medical care (which made many formerly fatal injuries survivable), it is quite a difficult and expensive task to find and retain good expert witnesses who can establish the standard of care, breach, and causation.

Therefore, in the 1940s and 1950s, many American courts departed from the MacPherson standard and decided that it was too harsh to require seriously injured consumer plaintiffs to prove negligence claims against manufacturers or retailers. To avoid having to deny such plaintiffs any relief, these courts began to look for facts in their cases which they could characterize as an express or implied warranty from the manufacturer to the consumer. The res ipsa loquitur doctrine was also stretched to reduce the plaintiff's burden of proof. Over time, the resulting legal fictions became increasingly strained.

Of the various U.S. states, California was the first to throw away the fiction of a warranty and to boldly assert the doctrine of strict liability in tort for defective products, in 1963 (under the guidance of then-Associate Justice Roger J. Traynor). See Greenman v. Yuba Power Products, 59 Cal. 2d 57 (1963). The importance of Greenman cannot be overstated: in 1996, the Association of Trial Lawyers of America (now known as the American Association of Justice) celebrated its 50th anniversary by polling lawyers and law professors on the top ten developments in tort law during the past half-century, and Greenman topped the list.^[5]

In Greenman, Traynor cited to his own earlier concurrence in Escola v. Coca-Cola Bottling Co., 24 Cal. 2d 453, 462 (1944) (Traynor, J., concurring). In Escola, now widely recognized as a landmark case in American law,^[6] Justice Traynor laid the foundation for Greenman with these words:

The year after Greenman, the Supreme Court of California proceeded to extend strict liability to all parties involved in the manufacturing, distribution, and sale of defective products (including retailers)^[7] and in 1969 made it clear that such defendants were liable not only to direct customers and users, but also to any innocent bystanders randomly injured by defective products.^[8]

Since then, many jurisdictions have been swayed by Justice Traynor's arguments on behalf of the strict liability rule in Escola, Greenman, and subsequent cases—including nearly all U.S. states, the European Union, Australia, and Japan— and have adopted it either by judicial decision or by legislative act. Notably, South Africa, New Zealand, and the U.S. state of North Carolina have soundly rejected strict liability; Canada continues to officially reject it but under American influence has gradually adjusted certain aspects of negligence and warranty law to make them more favorable to consumers.^{[citation needed]}

Although the Greenman rule was transmitted to most other states via Section 402A of the Restatement of Torts, Second (published in 1964 after Greenman), the Supreme Court of California refused to adopt Section 402A's "unreasonably dangerous" limitation upon strict liability in 1972.^[9] Thus, strict liability in California is truly strict, in that the plaintiff need not show that the defect was unreasonable or dangerous. On the other hand, in California, the defendant is allowed to introduce evidence in a strict products liability action that the plaintiff contributed to his or her own injuries.^[10]

Although the Supreme Court of California has since become more conservative, it continues to endorse and expand the doctrine. In 2002 it held that strict liability for defective products even applies to makers of component products that are installed into and sold as part of real property.^[11]

Consumer protection[link]

In addition to the above common law claims, many states have enacted consumer protection statutes providing for specific remedies for a variety of product defects. Statutory remedies are often provided for defects which merely render the product unusable (and hence cause economic injury) but do not cause physical injury or damage to other property; the "economic loss rule" means that strict liability is generally unavailable for products that damage only themselves. The best known examples of consumer protection laws for product defects are lemon laws, which became widespread because automobiles are often an American citizen's second-largest investment after buying a home.

Product liability in the European Union[link]

Moves towards a strict liability regime in Europe began with the Council of Europe Convention on Products Liability in regard to Personal Injury and Death (the Strasbourg Convention) in 1977.^[12] On July 25, 1985, the European Economic Community adopted the Product Liability Directive 85/374/EEC. In language similar to Traynor's, the Directive stated that "liability without fault on the part of the producer is the sole means of adequately solving the problem, peculiar to our age of increasing technicality, of a fair apportionment of the risks inherent in modern technological production." However, the Directive also gave each member state the option of imposing a liability cap of 70 million euros per defect.

Rationale for and debate over strict liability[link]

This unreferenced section requires citations to ensure verifiability.

Strict products liability causes manufacturers to internalize costs they would normally externalize. Strict liability thus requires manufacturers to evaluate the full costs of their products. In this way, strict liability provides a mechanism for ensuring that a product's absolute good outweighs its absolute harm.

Between two parties who are not negligent (manufacturer and consumer), one will necessarily shoulder the costs of product defects. Proponents say it is preferable to place the economic costs on the manufacturer because it can better absorb them and pass them on to other consumers. The manufacturer thus becomes a de facto insurer against its defective products, with premiums built into the product's price.

Strict liability also seeks to diminish the impact of information asymmetry between manufacturers and consumers. Manufacturers have better knowledge of their own products' dangers than do consumers. Therefore, manufacturers properly bear the burden of finding, correcting, and warning consumers of those dangers.

Strict liability reduces litigation costs, because a plaintiff need only prove causation, not imprudence. Where causation is easy to establish, parties to a strict liability suit will most likely settle, because only damages are in dispute.

Critics charge that strict liability creates risk of moral hazard. They claim that strict liability causes consumers to under invest in care even when they are the least-cost avoiders. This, they say, results in a lower aggregate level of care than under a negligence standard. Proponents counter that people have enough natural incentive to avoid inflicting serious harm on themselves to mitigate this concern.

Critics charge that the requiring manufacturers to internalize costs they would otherwise externalize increases the price of goods. Critics claim that in elastic, price-sensitive markets, price increases cause some consumers to seek substitutes for that product. As a result, they say, manufacturers may not produce the socially optimal level of goods. Proponents respond that these consumer opt outs reflect a product whose absolute harm outweighs its absolute value; products that do more harm than good ought not be produced.

See also[link]

• Asbestos and the law
• Automobile products liability
• Consumer Product Safety Commission (U.S.)
• Consumer protection
• Donoghue v Stevenson - Scotland snail case
• Market share liability - U.S.
• McDonald's coffee case - U.S.
• Product recall
• Statute of limitations
• Summers v. Tice
• Tort reform
• Toxic tort
• Tombstone mentality
• Wyeth v. Levine

References[link]

External links[link]

• Congressional Research Service (CRS) Reports regarding Product Liability
• Product Liability in Israel - Overview
• Product Liability Forum - British Institute of International and Comparative Law

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