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Tort Liability

Product Liability

What Is Product Liability?

Product liability is the legal responsibility a manufacturer incurs for producing or selling a faulty product.

Product liability is the liability of a manufacturer or a seller for injuries to a consumer resulting from a defective product. In frequently results in a civil lawsuit against the makers of a product. The lawsuit claims that a person or group of persons was injured by a product that was defective or not suitable for the use for which it was advertised. Product liability cases can arise from negligence (failure to exercise appropriate care) or strict liability (responsibility without the need to prove fault or intent). In the negligence context, claims for product liability generally arise in the following situations:

  • A product has negligent design—it was invented or conceptualized in a harmful way.
  • A product has negligent manufacture—it was built in a harmful way.
  • There was a failure to warn—the manufacturer is liable for not telling a buyer or user about the dangers of normal use or foreseeable misuse of a product.

In some product liability cases, the doctrine of res ipsa loquitur shifts the burden of proof to the defendant, as the occurrence of an accident implies negligence. The term means "the thing speaks for itself" in Latin. Res ipsa loquitur indicates that a particular defect would not have existed unless someone were negligent. When a plaintiff uses this doctrine successfully, a defendant must prove that they were not negligent. A defective product can also form the basis of a strict liability claim.

For example, there was a high-profile product liability case involving Johnson & Johnson. In 2018, the company was ordered to pay over $4 billion to 22 women (and their family members) who claimed that asbestos in their talcum powder products caused them to develop ovarian cancer. The plaintiffs in the case accused Johnson & Johnson of failing to warn them of the cancer risks associated with using the powder. As a result a jury decided against Johnson & Johnson and awarded the plaintiffs compensatory damages (money to replace what was lost) as well as punitive damages (penalties to punish the defendant). As this case shows, product liability cases can be serious and can end up costing the at-fault party (or that party's insurer) significant sums.

Product Liability Claims

Purchasers, users, bystanders, and property owners can bring product liability claims.

Strict liability is the most likely theory to apply in consumer protection cases, which are different than cases brought under a consumer protection act. Cases brought under a consumer protection act occur when a company has violated a consumer law or statute, while a consumer protection case can be brought against a company for a faulty or harmful product, even though that company may not have violated a statute.

One of the most well-known consumer protection cases, and an example of strict liability, involved a woman who purchased hot coffee from McDonald's. The woman placed the coffee between her legs in an attempt to remove the lid to add cream and sugar. In the process of removing the lid, she spilled the coffee on her lower body and suffered terrible burns. The woman brought a product liability claim against McDonald's and argued, among other things, that the coffee failed to provide an adequate warning regarding its temperature and that its temperature was excessive, causing the coffee to be unreasonably dangerous. The jury found that the woman was 20 percent responsible and McDonald's was 80 percent responsible. The jury awarded the woman millions of dollars in damages.

Privity refers to a relationship between two or more parties that the law recognizes. Privity of contract is not necessarily needed to bring a product liability claim. In other words, a person can sometimes bring a product liability suit even if they did not have a contractual relationship with the seller or manufacturer. For example, suppose a person buys firecrackers from a grocery store. That night, the person invites some friends over to watch him light the fireworks. While he is lighting a firecracker, it malfunctions and prematurely explodes. As a result, one of the friends is struck in the eye and is severely injured. The friend is a bystander, one who is present but not taking part in an event (in this case, the lighting of the firecracker), and who did not have a contract with the seller or manufacturer. Still, he may be able to initiate a claim against the manufacturer, the seller of the defective firecracker, or both. No privity of contract is needed in this instance.

As another example, consider a customer at a restaurant who orders a can of soda. When she tries to open it, it explodes in her face, injuring her. The customer could potentially pursue (initiate legal proceedings against) the restaurant and the seller or manufacturer for her injuries resulting from an allegedly defective product. Had the explosion injured another customer, they might have also had a claim even though there was no contract between the third party (the customer) and the seller or manufacturer.

Three Types of Product Defects

The three types of product defects are design defect, manufacturing defect, and marketing defect.

Claims for product liability generally arise when a product is negligently designed or manufactured or a manufacturer fails to warn users about the dangers of using a product or the foreseeable misuse of a product.

A negligently designed product is dangerous because the manufacturer created it in a way that could harm users or others. The product must be free from unreasonable risks—ones that are unexpected, inappropriate, or not sensible. However, the product does not need to be absolutely safe. For example, a chainsaw manufacturer can build a chainsaw to the highest manufacturing standards, but it still does not reduce the risk inherent in using a chainsaw.

A product that is negligently manufactured is one that is designed properly yet left the manufacturing plant in a dangerous condition because of an inadequate inspection or other failure on the part of the manufacturer.

Finally, a manufacturer has a duty to warn purchasers or users about the potential dangers of using the product in a normal manner (in other words, the way it was intended to be used). The manufacturer also has a duty to warn purchasers or users of the dangers associated with the foreseeable misuse of the product.

Products That Are Not Absolutely Safe

In a negligence lawsuit, all members of the distribution chain (manufacturer, wholesaler, and retailer) are liable. In a strict liability lawsuit, only the negligent party is liable. For example, the defective product could have been inspected more closely before leaving the manufacturing facility.
A marketing defect occurs when a manufacturer or seller of a product fails to communicate to consumers about the product's safe and proper use, the product's unobvious dangerous characteristics, or the risks of using the product. For example, if a medical device retailer sells medical equipment without including information on the product's safe and proper use, this is a marketing defect.