Tuesday, September 20, 2011

Torts: Products Liability

Basic Principles:

To prove a case of products liability, a plaintiff can use one of five theories: intent; negligence; strict liability; implied warranty; and express warranty. On a bar exam essay, time permitting, it's best to address all of the possible theories, and to dismiss the one's that don't apply. The MBE often tests strict products liability, and that will be the focus of this note.

Under any products liability theory, the plaintiff must prove that there was a defect in the product, and that the defect existed when the product left the defendant's control. The two types of defects are manufacturing defects, and design defects. A manufacturing defect is one in which a product emerges from manufacturing different and more dangerous than a properly manufactured product. For this type of defect, plaintiff must show that the product failed to perform as safely as an ordinary consumer would expect.

In contrast, a design defect is one in which all products are the same, but each has a dangerous propensity. Plaintiff will have to prove that defendant could have made the product safer without serious impact on the product's final price or utility (in other words, that a different, safer, design was feasible).

The final defect occurs when there are inadequate warnings informing of the risks involved in using the product.

Strict Liability:

To prove a case of products liability using a theory of strict liability, the following elements must be satisfied: a strict duty owed by a commercial supplier of a product; a breach of that duty; actual and proximate causation, and damages. You'll notice that 3/4 of the elements are the same as those needed to prove negligence. The difference lies in the first element.

Whereas in negligence a duty is owed to act as a reasonably prudent person, the duty owed on a theory of strict liability is simply to make the product safe. The care taken is irrelevant. Under a theory of strict liability; if the product is not safe, and the other elements are satisfied, a prima facie case has been made. Potential plaintiffs are not only those who purchased the product, but rather any user or consumer of the product. In addition, injured bystanders can also sue. Note that, as stated above, only commercial suppliers can be held liable; casual sellers will not be held liable, and that is a heavily tested distinction on the MBE.

If plaintiff is to prove that defendant has breached his duty, plaintiff will have to prove a defect (any of the three discussed above), and that the defect made the product unreasonably dangerous. Further, to prove causation, plaintiff must show that the defect existed when the product left defendant's control. Proximate cause is analyzed in the same manner as analyzed under a theory of negligence (ie, forseeability).

In regards to damages, note that only physical damages or property damages will be allowed. Recovery for products liability, using a theory of strict liability, will be denied if the sole claim is for economic loss.


  1. Could you clarify how the defenses to a product claim differ depending on whether the claim is based in a strict product liability, negligent product liability or a breach of warranty claim? For example, it’s my understanding that a big difference between negligent and strict product defenses is the availability of the contributory negligence defense.

    Is the following correct?:

    Defense to negligent product liability: Same as regular negligence (contributory negligence, assumption of risk). Disclaimers are no defense if there is physical injury or property loss.

    Defenses to strict product liability claim: Assumption of risk, abnormal misuse of the product, P’s failure to follow instructions. Not contributory negligence.

    Defenses to Implied Warranty claims (merchantability and fitness for a particular purpose): Assumption of risk, contributory negligence; i.e. P’s misuse of the product or failure to follow directions, P's failure to give D notice of the breach within a reasonable amount of time. Disclaimers are a defense, unless they are unconscionable or inconspicuous.

    What are the defenses available in a product liability claim based upon a claim that the D breached an express warranty, if any?

  2. Will address this question and topic in its own post shortly.