BUSA+Strict+Liability+and+Product+Liability

BUSA+Strict+Liability+and+Product+Liability - STRICT...

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STRICT LIABILITY AND PRODUCT LIABILITY Who is responsible for injury from a defective product? I. Overview When an individual is hurt because of a defective product, the first thought is usually to compensation and its source. Traditionally the theories of liability have centered around either contract law or tort law. In contract warranties provide a mechanism for potential litigation based on either express or implied promises unless disclaimed. Tort law typically has involved the application of negligence theory to the situation. Traditional negligence doctrines have failed to adequately protect consumers hurt by defective products. Courts led the way to newer avenues of recourse by way of the doctrine of strict liability. A sampling of arguments from the two sides of the public policy debate surrounding this doctrine is set out below. The actual mechanics of the doctrine are found in the Restatement (Second) of Torts at Section 402A. On the side of product users, the following points are worth considering: 1. Traditional tort law doctrines based on fault and defenses related thereto have not always adequately served the injured person. The evolution of strict liability doctrines is a logical consequence of having this deficiency in the law. 2. Contract law, both common and UCC, has also failed to provide adequate assurance to the victims of product harm. Consumers traditionally have had less real bargaining power in contracting when it comes to attaching responsibility for harm created by a product. 3. Various legislative enactments at both local and national levels designed to protect consumers tend to be reactive rather than proactive. Bans on products are enacted only after so many injuries have occurred that the product’s continued existence in the marketplace can no longer be tolerated. For example, consider how long it took to get three-wheel all-terrain vehicles and lawn darts off the market. Or do semiautomatic "street sweepers" really serve any legitimate societal purpose? 4. As a practical matter, protections against defects in products are best provided by the manufacturers of those products. Compared to the consumer, they have the resources to research, develop, and test against harm. Can you as a buyer of an automobile really test the airbag before you buy the car? 5. The sanctions imposed by law for defective products should act as a deterrent to further introduction of faulty products into the marketplace. If the sellers of goods know this, they will try harder to make products safer in the first place. 6. Manufacturers and other members of the chain of distribution have traditionally had the "deep pockets" to fight off the "little guy" by using so-called "hard ball" tactics in fighting all claims regardless of the equities of the individual claims. 7.
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BUSA+Strict+Liability+and+Product+Liability - STRICT...

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