Products Liability — Torts

A carpenter is cutting on a table saw he has used for years. He slips. His hand meets the spinning blade, and he loses a finger. Now the fact that decides the case. Nothing went wrong with that saw. It has no blade guard and no automatic brake, but every unit on that line was built exactly as designed. So is the saw defective?

Quite possibly yes. Because a practical, inexpensive brake that stops the blade almost instantly when it senses skin was already available, and several competitors used it. A product can be perfectly made and still be defective. This episode is about the three ways that happens, the five theories that carry the claim, and the one rule that quietly kills a lot of them.

Here is the route. First, the five theories and the two questions that separate them. Then strict liability, its elements, and the three kinds of defect. Then who may sue and who may be sued. Then warranty and misrepresentation. Then the defenses. And finally the economic loss rule, which is where a lot of good-looking claims go to die.

Start with the mindset that earns points. One set of product-injury facts is not one claim. It is a menu. The same facts can support five separate theories. Negligence. Strict products liability. The implied warranty of merchantability. Express warranty. And misrepresentation. Two questions separate them. Must the plaintiff prove fault, meaning a lack of care? And must the plaintiff have privity, a direct contractual link with the defendant?

Negligence here is just ordinary negligence pointed at a product. Duty, breach, causation, damages. A commercial supplier owes reasonable care in designing, making, inspecting, labeling, and selling its goods. Privity is dead, so that duty runs to any foreseeable user or bystander. And when the plaintiff cannot say what went wrong inside the plant, res ipsa loquitur can let a jury infer carelessness.

But negligence still makes the plaintiff prove somebody was careless, which is exactly what she usually cannot do. Which is why strict products liability is the star. Liability without fault. The maker is best placed to prevent defects and to spread the cost through pricing and insurance, and a consumer cannot reconstruct what happened deep inside a factory.

Five elements. One. The defendant is a commercial seller or distributor, a business that regularly sells products of this kind. Two. The product was defective, through a manufacturing defect, a design defect, or a failure to warn. Three. The defect existed when the product left the defendant's control, and it reached the plaintiff without substantial change. Four. The defect was the actual and proximate cause of the injury. Five. The plaintiff suffered physical harm.

That is Restatement (Second) of Torts § 402A, refined by the Restatement (Third). One line of it carries the whole doctrine. The rule applies even though the seller exercised all possible care, and even though the injured user never bought the product from, or entered any contract with, the seller.

Now the three defects. A manufacturing defect means the product came out wrong. It departs from its own intended design, or from the identical units coming off the same line. One bad unit among thousands of good ones. The test is a straight comparison against the maker's own blueprint. A bottler fills a million soda bottles correctly, and one leaves the plant with a sliver of glass inside.

Try one. A cyclist's aluminum frame cracks at a weld four months in, from a speck of contamination. The maker proves it runs the most rigorous quality control in the industry and that no available inspection could have caught this flaw. Does that defeat the claim? No. It is irrelevant. Strict liability never asks whether anyone was careful.

A design defect is harder, because nothing went wrong on the line. Every unit was built exactly as intended, and the intended design itself is unreasonably dangerous. The plaintiff is condemning an entire product line, so courts demand a more searching test. Two competing tests are used, and which one governs can decide the case.

The consumer-expectations test asks whether the product is more dangerous than an ordinary consumer would expect in foreseeable use. No alternative design required. A cheap utility knife whose blade springs back out on its own, from a button far more sensitive than any ordinary user would anticipate, fails that test. It fits simple products a normal user can judge without engineering testimony.

The risk-utility test asks whether the design's risks outweigh its benefits. And under the Restatement (Third) and a growing majority of states, the plaintiff must prove a reasonable alternative design. Safer, practical, reasonably affordable, and its omission made the product not reasonably safe. Which is our carpenter. In a risk-utility jurisdiction his burden is not that the saw is frightening. It is that a feasible safer saw existed.

And that burden is real. A parent sues a trampoline maker after a child falls and breaks an arm. Her expert says a rigid steel cage would have prevented every fall injury, then concedes it would make the trampoline impossible to use and prohibitively expensive. Judgment for the manufacturer. An alternative must be safer, practical, and still preserve what the product is for.

States split on which test governs. Some use consumer expectations, some risk-utility, some let the plaintiff win under either. Risk-utility with an alternative design is the modern trend.

Third defect. Failure to warn. The product is safe if handled correctly but carries a hidden, non-obvious danger, and the seller gave no adequate warning. The duty covers foreseeable risks that were known or knowable at the time of sale. Picture an industrial solvent whose vapors ignite from a spark in a closed room, a hazard well documented in the literature, with a label that says nothing about ventilation.

A warning is adequate only if it is clear, prominent, and conveys the nature and seriousness of the danger and how to avoid it. But there is no duty to warn of dangers that are obvious or generally known. A knife is sharp. The maker need not say so, and the home cook who cuts her finger has no warning claim.

Two special rules. Under the learned intermediary doctrine, a maker of prescription drugs or medical devices satisfies its duty by adequately warning the prescribing physician, not the patient. The doctor translates the risk for that individual. Virtually every state follows it, with narrow exceptions. Second, many courts apply a heeding presumption. They presume the plaintiff would have followed an adequate warning, which supplies causation.

Who may sue? In the tort theories privity is not required, so the class is broad. Buyers, users, consumers, and foreseeable bystanders. A pedestrian struck when a car's defective brakes fail is the classic bystander plaintiff, and she never bought or used that car. In warranty, privity was historically required, but UCC § 2-318 pushes protection outward to the buyer's family, household, and guests.

Who may be sued? Any commercial seller in the chain of distribution. The manufacturer, the maker of a defective component part, the assembler, the wholesaler, the distributor, and the retailer. A hardware store takes in a sealed carton, never opens it, and sells a heater that burns its buyer. Strictly liable, or not? Liable. Fault is not the question. Commercial lessors are usually in too.

Two groups are out. First, the casual or occasional seller. A homeowner who sells his used mower to a neighbor for $40 at a yard sale is not strictly liable, though he might still be sued for negligence. And providers of services rather than products. A surgeon implanting a hip, and the hospital delivering the care, are rendering a service, even if the bill itemizes the device.

So what protects the innocent retailer? Two things. Indemnity, meaning full reimbursement from the manufacturer that created the defect. And innocent-seller statutes, which many states have enacted. A typical one dismisses a non-manufacturing seller unless that seller altered the product, knew of the defect, or the manufacturer cannot be sued or cannot pay. If no exception fits, the retailer walks.

Warranty theories come from UCC Article 2 and feel like contract law, but they do real work, because they usually require no proof of fault. The implied warranty of merchantability, § 2-314, arises automatically whenever a merchant who deals in goods of that kind sells them. The goods must be fit for their ordinary purposes. A diner who cracks a molar on metal in her chowder has that claim.

The implied warranty of fitness for a particular purpose, § 2-315, is narrower. The seller must have reason to know the buyer's special purpose and know the buyer is relying on the seller's skill to choose. A painter who asks for a sealant that will bond to galvanized metal against salt spray, and takes what the salesperson picks, has that one.

An express warranty is any affirmation, promise, description, or sample that becomes part of the basis of the bargain. But warranty carries contract baggage that tort does not. The seller can disclaim implied warranties under § 2-316, and the buyer generally must give timely notice of breach under § 2-607.

Misrepresentation is the fifth theory. Restatement § 402B imposes strict liability on a seller who publicly misstates a material fact about a product, usually in advertising or on a label. The consumer must justifiably rely on it and be physically harmed. No fault, no privity. Advertise a tire as guaranteed puncture-proof, and a buyer hurt when a rock punctures it recovers, even though the tire was built exactly to spec.

Now defenses, and they have shifted. Under the modern majority, comparative fault applies even to strict products liability. The plaintiff's own unreasonable conduct reduces recovery in proportion to fault, and in a modified system it bars recovery once the plaintiff crosses the 50% or 51% threshold. A worker who keeps his hand in front of a nail gun's muzzle while clearing a jam does not lose. He recovers less.

Know the historical wrinkle. Traditionally, ordinary contributory negligence, merely failing to discover a defect, was not a defense to strict liability, while assumption of risk was a complete bar. Most comparative-fault states now fold both into one percentage. And a consumer who simply never inspected her sofa for a latent flaw has done nothing wrong at all.

Then the rest, quickly. Misuse, alteration, or modification. Unforeseeable misuse or a substantial change after sale defeats the claim, but foreseeable misuse must be designed or warned against. State of the art. No liability for a danger genuinely unknowable when the product was sold. Compliance with government or industry standards is evidence, not a complete defense.

And comment k. Some products, many drugs and vaccines, cannot be made fully safe, and they are not defective in design if properly made and adequately labeled. A statute of repose can also bar a claim a fixed number of years after sale, no matter when the injury happens.

Last, the trap. Tort products liability pays for personal injury and for damage to other property. It does not pay for pure economic loss. Lost profits, repair or replacement cost, or the lost value of the product itself. When a defective product injures only itself, the remedy lies in contract and warranty, not in tort.

A word on authorities. This episode named no cases, and that is deliberate. NextGen questions hand you a product injury and ask which theory works and what the plaintiff must prove. They will not ask you for case names. What you heard comes from Restatement (Second) of Torts § 402A and § 402B, the Restatement (Third) on products liability, and UCC Article 2.

If you keep only three things, keep these. Strict liability drops the fault element, so all possible care is no defense. The three defects, each with its own test. And the economic loss rule, which decides whether there is a tort case at all.

Now the traps, straight from the examiners' favorites. One. Mixing up the defect tests. A manufacturing defect compares one unit to the maker's own design. A design defect attacks the whole line and needs consumer expectations, or risk-utility with an alternative design. Two. Forgetting the seller must be in the business of selling. A casual, one-time seller is not strictly liable.

Three. Thinking privity is required. It is not, for negligence or for strict liability. Four. Awarding tort damages for pure economic loss. Five. Treating an obvious danger as a warning defect. There is no duty to warn that a knife is sharp.

Six. For prescription drugs and devices, warning the patient instead of the physician. The duty runs to the learned intermediary. Seven. Assuming the old contributory negligence rules still bar the claim. Modern law applies comparative fault, and merely failing to inspect for a defect is not a defense. This topic is starred, so expect no provided statutes. The elements must be recall-ready.

Time for the quick check, and this one comes straight from the BARGO question bank. A trucking company buys a new delivery truck. Eight months later a latent defect makes the engine fail catastrophically while the truck is parked overnight. The engine is destroyed and the truck is inoperable. Nobody is hurt, and nothing but the truck itself is damaged. Its losses are the ruined engine, a replacement, and lost profits while the truck sits.

It sues the manufacturer in strict products liability and negligence. What is the most likely result? Option one. It recovers in negligence but is barred from strict liability. Option two. The tort claims fail, because the loss is purely economic with no injury to person or other property. Option three. The claims succeed, because a catastrophic engine failure created a serious safety risk. Pause here if you want a moment.

The answer is option two. The economic loss rule bars tort recovery, in negligence and in strict liability alike, when a defective product injures only itself. The engine destroyed itself and left repair costs and lost profits. Pure economic loss. The remedy lies in contract and warranty. Option one ignores the rule, which is not theory-specific.

Option three is the common trap. A failure that could have been dangerous does not create tort liability when the only actual losses are economic. There are thirty plus more questions on this topic alone, each option explained.

Five things to take away. One. A product injury is a menu of five theories, and strict liability asks least of the plaintiff, because it drops fault entirely. Two. Three defects. Manufacturing, where this unit deviates. Design, where the whole line is unsafe. Failure to warn, a hidden knowable danger with no adequate warning.

Three. Privity is dead in tort, so bystanders sue, and every commercial seller in the chain is liable, including the retailer who never opened the box. Casual sellers and service providers are out. Four. Comparative fault now applies even to strict liability, and merely failing to inspect is not a defense.

Five. No personal injury and no damage to other property means no tort claim at all, however defective the product was. That last one decides more questions than it looks like it should.

Which brings us back to the carpenter and his saw. Nothing about it was broken. It was built exactly as designed, and that is precisely the claim. Next time, Nuisance.

Practice this topic with more than 2,900 exam-style questions, free to start, at nextgenbargo.com. This episode is for education and exam preparation only, not legal advice, and we are not affiliated with or endorsed by the NCBE or any bar examining authority.