products liability


Products liability refers to the liability of any or all parties along the chain of manufacture of any product for damage caused by that product. This includes the manufacturer of component parts (at the top of the chain), an assembling manufacturer, the wholesaler, and the retail store owner (at the bottom of the chain). Products containing inherent defects that cause harm to a consumer (or someone to whom the product was loaned, given, etc.) of the product would be the subjects of products liability suits. While products are generally thought of as tangible personal property, products liability has stretched that definition to include intangibles (i.e. gas), naturals (i.e. pets), real estate (i.e. house), and writings (i.e. navigational charts). Products liability is derived mainly from torts law.

Prima Facie Case (for the commercial seller of the defective product)

  1. The defendant sells a product that the plaintiff uses
  2. The defendant is the commercial seller of such a product
  3. The plaintiff suffers an injury
  4. When the defendant sold the item, the item was defective
  5. The defect was an actual and proximate cause of the plaintiff's injury

Types of Products Liability Claims

Products liability claims can be based on negligence, strict liability, or breach of warranty of fitness. This will typically depend on the jurisdiction within which the claim is based, due to the fact that there is no federal products liability law. This lack of uniformity has resulted in the United States Department of Commerce publishing the Model Uniform Products Liability Act (MUPLA), which has tried to encourage uniform procedures for the products liability tort. 

Defects That Create Liability

There are three types of product defects that incur liability in manufacturers and suppliers:

  1. Design Defects
    1. Design defects are inherent, as they exist before the product is manufactured.While the item might serve its purpose well, it can be unreasonably dangerous to use due to a design flaw.
    2. In 47 states, the plaintiff has the burden of proof to prove the existence of a design defect. In Alaska, California, and Hawaii however, the defendant must justify the product’s design to show why there was no defect. 
  2. Manufacturing Defects
    1. Manufacturing defects occur during the construction or production of the item
    2. Only a few out of many products of the same type are flawed in this case
  3. Defects in marketing
    1. Defects in marketing deal with improper instructions and failures to warn consumers of latent dangers in the product

Strict Liability

Products Liability is generally considered a strict liability offense. With regard to products liability, a defendant is liable when the plaintiff proves that the product is defective, regardless of the defendant's intent. It is irrelevant whether the manufacturer or supplier exercised great care; if there is a defect in the product that causes harm, he or she will be liable for it.

Overcoming Liability Even When the Product is Defective 

Even when a product is defective due to a design flaw, some courts will use one of two tests to find that the defendant has no liability.

  1. Risk-Utility Test
    1. the defendant is not liable for a design defect if evidence shows that the product’s utility outweighs its inherent risk of harm.
  2. Consumer Expectation Test
    1. a reasonable consumer would find the product defective when using the product in a reasonable manner
      1. if a reasonable consumer would not find the product to be defective even when using it in a reasonable manner, then the defendant is not liable, even if the product's design flaw resulted in injury

For more on these two tests, see this Law360 article

Products Liability and Forums

Products liability cases can involve defendants and plaintiffs from a large number of jurisdictions, due to the number of steps required in the creation of a product, and the resulting large number of people who use a given product. Due to the large number of people who may be involved in products liability cases, plaintiffs often forum shop to find judges sympathetic to products liability claims. In Bristol-Myers Squibb Co. v. Superior Court of California (2017), the Supreme Court limited the forum-shopping ability of plaintiffs in products liability cases.

Further Reading

For more on products liability in general, see this Harvard Law Review note, this Harvard Law Review note, and this Notre Dame Law Review note

For more on the relationship between products liability and forum shopping, see this SCOTUSBlog article

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Category: Accidents and Injuries