Product liability
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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.
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[edit] Product liability in the United States
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. Each type of product liability claim requires different elements to be proven to present a successful claim.
[edit] Product liability and negligence
A products liability claim is usually based on one or more of the following causes of action:
-
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- design defect,
- manufacturing defect,
- a failure to warn.
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The claims may succeed even when products were used incorrectly by the consumer, as long as the incorrect use was foreseeable by the manufacturer (or other party in the "supply chain").
In general, products liability claims are based not on negligence, but rather on strict liability. Under the theory of strict liability, a manufacturer is held liable regardless of whether it acted negligently. It allows recovery for an injured customer who might be in a difficult position to prove what a manufacturer did or did not do wrong in its design or manufacturing process. It is presumed that a manufacturer with its deep pockets may be better situated to absorb the cost of liability and would consider such expense in setting price for its products.
Some legal commentators consider claims of failure to warn to be based on negligence.
A basic negligence claim consists of proof of
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- a duty owed,
- a breach of that duty,
- an injury, and
- that the breach caused the plaintiff's injury.
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).
[edit] Products Liability and Strict Liability
Products liability claims are, in general, not based on negligence, but rather on a liability theory called "strict liability."
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. Because strict liability is a harsh regime for a manufacturer, who is forced to pay for all injuries caused by his products, even if he is not at fault, strict liability is applied only to manufacturing defects (when a product varies from its intended design) and almost never applied to design and warning defects. The first case to openly discuss the application of strict liability to manufacturing defects involved an exploding Coca-Cola bottle (though the case actually upheld the plaintiff's res ipsa loquitur theory).
There is some confusion in judicial opinions as to whether strict liability is being applied in cases of design and warning defects. The courts may even state that they are applying strict liability. However, when the court proclaims to apply strict liability while determining product's defectiveness through the use of a consumer expectations test or risk-utility test, it is applying the negligence principles and not strict liability. Although the tests are not based on the conduct of the manufacturer, rather focusing on the product itself, they attempt to determine if the product's design or warning is reasonable. It is widely known that reasonableness is the staple of negligence, not strict liability.
[edit] History
In the 1940s and 1950s, many American courts 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. 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 celebrated its 50th anniversary by polling tort lawyers and law professors on the top ten developments in tort law during the past half-century, and Greenman topped the list.[1]
Since then, many jurisdictions have been swayed by Justice Traynor's persuasive arguments on behalf of the strict liability rule, and have adopted it either by judicial decision or by legislative act.
For example, 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.
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. [2]
[edit] Product liability and breach of warranty
Warranties are statements by a manufacturer or seller concerning a product during a commercial transaction. Unlike negligence claims, which focus on the manufacturer's conduct, or strict liability claims, which focus on the condition of the product, warranty claims focus on how these issues relate to a commercial transaction. Warranty claims commonly require privity between the injured party and the manufacturer or seller. 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.
[edit] Liability for Defective Products in the Republic of Ireland
Irish law on product liability was for most of its history based solely on negligence. With the Liability for Defective Products Act, 1991 it has now also the benefit of a statutory, strict liability regime.
[edit] Liability for Defective Products Act, 1991
The Liability for Defective Products Act, 1991 was enacted pursuant to the EC Directive on Product Liability 85/374/EEC. Under the Act, a producer shall be strictly liable for damages in tort for damage (either to property or an individual) caused wholly or partly by a defect in his product[1].
[edit] Producers
Under the terms of the Act a producer is anyone who:
- manufactures a finished product, raw material or a component of a product.
- processes agricultural or other food products (specifically plants, livestock, fish or game.)
- makes himself out to be the producer by virtue of attaching his name, brand, trademark etc to the product.
- has imported the product into the EU to supply it to another person as part of his business.
- has supplied the product, where the producer cannot be identified and any attempt by the injured party to elicit the producer's identity is frustrated or ignored.
Electricity is considered a product for the purposes of the Act
[edit] Defects
A defect is anything which results in the product failing to provide the safety a consumer is entitled to expect, taking into account all the circumstances[2]. The Act expressly mentions three:
- The presentation of the product - e.g. warning labels, instructions, probably even serving suggestions.
- The use the product could reasonably expected to be put - jamming a fork into a toaster for example would almost certainly not be actionable.
- The time the product was put into circulation - relevant in that the safety of any product will diminish given enough time and in addition the standards expected by the community may increase [3]
[edit] Warning labels
Over the past number of years a number of Irish cases have dealt with the issue of warning labels on products (mostly in connection with flammable clothing.) While developed in the context of negligence, they seem likely to inform future court judgments in terms of what constitutes a suitable presentation of a product.
In O'Byrne v Gloucester[4] the plaintiff, a young girl, was standing next to an indoor heater when her cotton dress caught fire, burning her badly. The defendants were found guilty of negligence, in that they failed to avoid a grave and foreseeable risk by taking the easily affordable precaution of affixing a warning to the dress.
According to the decision in Cassells v Marks and Spencers, a producer of a flammable garment, need only give a basic warning. As McGuinness J said:
"In addition, I find it somewhat difficult to follow the logic of the argument asserted on behalf of the plaintiff that a warning “KEEP AWAY FROM FIRE” merely “tells people what they know already” and is too bland. The warning clearly indicates that the garment is made of flammable material - otherwise there would be no need for the warning."
[edit] Defences
There are six specific defences available[3]. Being a strict liability statute, the defendant's taking reasonable care is irrelevant.
It is a defence if:
- it is proved the defendant did not put the product into circulation.
- given the circumstances, it is probable that the defect did not exist at the time the product was put into circulation, or it came into being afterwards.
- the product was not manufactured for an economic purpose (e.g. sale, marketing) nor as part of the defendant's business.
- the defect arises out of compliance with EU law
- the state of scientific or technological knowledge when the product was circulated was not such as to allow the defect be discovered.
- where the product is a component, the defect lay in the design of the final product into which it was fitted (e.g. where a chandelier collapsed due to being dangerously overweighed with lights, the producer of an individual bulb would have a defence.)
In addition, where the damage arose partially out of the negligence of the plaintiff, then the damages shall be apportioned as per Chapter III of the Civil Liability Act, 1961.
[edit] Rationale for and debate over strict liability
The most fundamental rationale for strict liability is to force producers to internalize the external costs they impose on society. By placing liability for all injuries caused by a product on its manufacturer, the manufacturer is forced to take into account, when deciding whether and how much to produce the product, the harm caused by it. If this internalized harm is so great that the manufacturer cannot profit from producing the product, it will discontinue the product, or sell it only at a higher price to consumers who value it especially highly (in economic terms, modify its activity level). In this way, strict liability provides a mechanism for ensuring that the societal good of products in the marketplace outweighs their societal harm.
Moreover, proponents of strict liability for defective products argue that strict liability is sensible because between two parties who are not negligent (manufacturer and consumer), one will still have to suffer the economic cost of the injury. They argue that it is preferable to place the economic costs on the manufacturer because it can better absorb them and pass them on to other consumers by the way of higher prices. As such, the manufacturer becomes the insurer of consumers that are injured by its defective products, with premiums paid by other consumers.
A related argument arises from the fact that the distribution of information about any given product is highly asymmetrical; the manufacturer of any given product is in a better position than the consumer to know of its particular dangers. Therefore, in order to fulfill the public policy of minimizing injury, it is more reasonable to impose the burden of finding and correcting such dangers upon the manufacturer as opposed to imposing the burden of finding and avoiding unsafe products upon the consumer. These arguments are often mentioned in cases of design and warning defects and less so in the case of manufacturing defects, since the latter are thought to be less preventable by the manufacturer because he is already acting with due care.
Critics charge that strict liability incentivizes product misuse (particularly in jurisdictions where this may not be a defense) and creates a moral hazard problem on the part of potential buyers. Reasoning that consumers will recover regardless of the amount of care they take in using the product, critics assert that consumers will underinvest in care even when they are the least-cost avoiders, thus leading to a lower aggregate level of care than under a negligence standard.
While proponents assert that the producer can build the cost into the price as insurance, critics argue that this assertion is ignorant of economics and only holds true in inelastic regions of the demand curve. As a result of strict liability for their products, manufacturers may not produce the socially optimal level of goods. Particularly with elastic regions of the demand curve, where consumers are very price-sensitive, the manufacturer by definition cannot pass on the economic costs to the consumers as a form of insurance without pricing many of those consumers out of the market for that good. However, because consumers are not willing to pay for this insurance, proponents of strict liability would argue that this is evidence of a product whose harm outweighs its good, in which case it should be removed from the market.
Critics also argue that applying strict liability to products results in substantially higher transaction costs. One example of these transaction costs is the creation of maintenance of legal disclaimers on products that would be unnecessary to the reasonable person -- such as the improperly algorithmic "lather, rinse, repeat" instructions on shampoos and the ubiquitous "not for human consumption" labelling on an inordinate number of non-food items. This results in a waste of time and resources for the producers who have to create these warnings, decreasing the producer surplus from trade. This also lowers the consumer surplus from these transactions, as all reasonably diligent consumers will read the unnecessary instructions, whereas the consumers likely to misuse the product are unlikely to be sufficiently diligent to read the instructions.
On the other hand, strict liability likely reduces litigation costs, because a plaintiff need only prove causation, not negligence.[original research?] When it is clear that the product caused the plaintiff's harm, parties under a strict liability regime are prone to settle out of court, because only damages are in dispute.
[edit] References
- ^ White, Robert Jeffrey. "Top 10 in torts: evolution in the common law." Trial 32, no. 7 (July 1996): 50-53.
- ^ Jimenez v. Superior Court (T.M. Cobb Co.), 29 Cal. 4th 473 (2002) (finding window manufacturers liable to homebuyers for defective windows that had been installed by developers into new homes).
- ^ McMahon&Binchy, Law of Torts, Butterworths 3rd Ed., par. 11.113-114
- ^ unreported, Supreme Court of Ireland Judgment, 3rd November, 1988
[edit] See also
- Asbestos and the law - US
- Consumer Product Safety Commission - US
- Consumer protection
- Donoghue v Stevenson - Scotland snail case
- McDonald's coffee case - US
- Statute of limitations
- Tort reform
- Toxic tort
[edit] External links
- Congressional Research Service (CRS) Reports regarding Product Liability
- Product Liability in Israel - Overview
- Product Liability Forum - British Institute of International and Comparative Law
