Products Liability

Kinds of Torts: Other Torts Products Liability

Introduction to Products Liability

Under the tort of products liability, when a product causes injury due to a fault in design or manufacture, or a failure to warn or instruct about a danger, the manufacturer (or any other commercial party involved in the distribution or sale of the product) may be liable to the injured user. This tort can be based on negligence. Most often, however, it relies on law that allows liability to be imposed without any intent to injure and without any negligence. This law is called strict liability in tort or, sometimes, strict products liability. Under the doctrine of strict liability, the act of distributing a defective and unreasonably dangerous product that causes harm is enough to allow the injured party to recover damages no matter how much care the manufacturer took. In some states the product need not even be unreasonably dangerous. For example, an automobile with door locks that open unexpectedly and permit a person to fall out can give rise to a product liability claim.

Certain special defenses apply to products liability cases. In a growing number of states, a variation of a statute of limitations, known as a statute of repose, prevents plaintiffs from bringing a suit based on a defective product if a certain number of years have passed since the product was marketed, regardless of when the injury arose. Some states have ruled such statutes unconstitutional because they might prevent recovery of damages even before an injury takes place.

A plaintiff may be injured while using a product in a way that the manufacturer could not anticipate. When this occurs the manufacturer has a defense based on product misuse. The manufacturer can also assert a variation of the assumption of risk defense in cases where the injured party failed to read or obey a warning or an instruction. If the harm would have been prevented had the injured party followed that advice, the plaintiff may not recover damages.” (1)

History of Products-Liability Law

The theory of caveat emptorÂ—let the buyer bewareÂ—that pretty much governed consumer law from the early eighteenth century until the early twentieth century made some sense. A horse-drawn buggy is a fairly simple device: its workings are apparent; a person of average experience in the 1870s would know whether it was constructed well and made of the proper woods. Most foodstuffs 150 years ago were grown at home and Â“put upÂ” in the home kitchen or bought in bulk from a local grocer, subject to inspection and sampling; people made home remedies for coughs and colds and made many of their own clothes. Houses and furnishings were built of wood, stone, glass, and plasterÂ—familiar substances. Entertainment was a book or a piano. The state of technology was such that the things consumed were, for the most part, comprehensible andÂ—very importantÂ—mostly locally made, which meant that the consumer who suffered damages from a defective product could confront the productÂ’s maker directly. Local reputation is a powerful influence on behavior.

The free enterprise system confers great benefits, and no one can deny that: materialistically, compare the image sketched in the previous paragraph with circumstances today. But those benefits come with a cost, and the fundamental political issue always is who has to pay. Consider the following famous passage from Upton SinclairÂ’s great novel The Jungle. It appeared in 1906. He wrote it to inspire labor reform; to his dismay, the public outrage focused instead on consumer protection reform. Here is his description of the sausage-making process in a big Chicago meatpacking plant:

There was never the least attention paid to what was cut up for sausage; there would come all the way back from Europe old sausage that had been rejected, and that was moldy and whiteÂ—it would be dosed with borax and glycerin, and dumped into the hoppers, and made over again for home consumption. There would be meat that had tumbled out on the floor, in the dirt and sawdust, where the workers had tramped and spit uncounted billions of consumption germs. There would be meat stored in great piles in rooms; and the water from leaky roofs would drip over it, and thousands of rats would race about on it. It was too dark in these storage places to see well, but a man could run his hand over these piles of meat and sweep off handfuls of the dried dung of rats. These rats were nuisances, and the packers would put poisoned bread out for them; they would die, and then rats, bread, and meat would go into the hoppers together.

This is no fairy story and no joke; the meat would be shoveled into carts, and the man who did the shoveling would not trouble to lift out a rat even when he saw oneÂ—there were things that went into the sausage in comparison with which a poisoned rat was a tidbit. There was no place for the men to wash their hands before they ate their dinner, and so they made a practice of washing them in the water that was to be ladled into the sausage. There were the butt-ends of smoked meat, and the scraps of corned beef, and all the odds and ends of the waste of the plants, that would be dumped into old barrels in the cellar and left there.

Under the system of rigid economy which the packers enforced, there were some jobs that it only paid to do once in a long time, and among these was the cleaning out of the waste barrels. Every spring they did it; and in the barrels would be dirt and rust and old nails and stale waterÂ—and cartload after cartload of it would be taken up and dumped into the hoppers with fresh meat, and sent out to the publicÂ’s breakfast. Some of it they would make into Â“smokedÂ” sausageÂ—but as the smoking took time, and was therefore expensive, they would call upon their chemistry department, and preserve it with borax and color it with gelatin to make it brown. All of their sausage came out of the same bowl, but when they came to wrap it they would stamp some of it Â“special,Â” and for this they would charge two cents more a pound.Upton Sinclair, The Jungle (New York: Signet Classic, 1963), 136.

It became clear from SinclairÂ’s exposé that associated with the marvels of then-modern meatpacking and distribution methods was food poisoning: a true cost became apparent. When the true cost of some money-making enterprise (e.g., cigarettes) becomes inescapably apparent, there are two possibilities. First, the legislature can in some way mandate that the manufacturer itself pay the cost; with the meatpacking plants, that would be the imposition of sanitary food-processing standards. Typically, Congress creates an administrative agency and gives the agency some marching orders, and then the agency crafts regulations dictating as many industry-wide reform measures as are politically possible. Second, the people who incur damages from the product:

suffer and die or
access the machinery of the legal system and sue the manufacturer.

If plaintiffs win enough lawsuits, the manufacturerÂ’s insurance company raises rates, forcing reform (as with high-powered muscle cars in the 1970s); the business goes bankrupt; or the legislature is pressured to act, either for the consumer or for the manufacturer.

If the industry has enough clout to bluntÂ—by various meansÂ—a robust proconsumer legislative response so that government regulation is too lax to prevent harm, recourse is had through the legal system. Thus for all the talk about the need for tort reform (discussed later in this chapter), the courts play a vital role in policing the free enterprise system by adjudicating how the true costs of modern consumer culture are allocated.

Obviously the situation has improved enormously in a century, but one does not have to look very far to find terrible problems today. Consider the following, which occurred in 2009-10:

Smith and Noble recalled 1.3 million Roman shades and roller shades after a child was nearly strangled: the Consumer Product Safety Commission says a five-year-old boy in Tacoma, Washington, was entangled in the cord of a roller shade in May 2009 (AP reports).
The Consumer Product Safety Commission reported that 4,521 people were killed in the United States in consumer-product-related incidences in 2009, and millions of people visited hospital emergency rooms from consumer-product-related injuries. (US Consumer Product Safety Commission, 2009 Report to the President and the Congress).
Products liability can also be a life-or-death matter from the manufacturerÂ’s perspective. In 2009, Bloomberg BusinessWeek reported that the costs of product safety for manufacturing firms can be enormous: Â“Peanut Corp., based in Lynchberg, Va., has been driven into bankruptcy since health officials linked tainted peanuts to more than 600 illnesses and nine deaths. Mattel said the first of several toy recalls it announced in 2007 cut its quarterly operating income by $30 million. Earlier this decade, Ford Motor spent roughly $3 billion replacing 10.6 million potentially defective Firestone tires.Â” (Michael Orey, Â“Taking on Toy Safety,Â” BusinessWeek, March 6, 2009, Businesses complain, with good reason, about the expenses associated with products-liability problems). (2)