Products Liability


Products liability3


Most courts hold manufacturers and suppliers of defective products strictly liable for injuries caused by the defect. Note that anyone in the chain of distribution may be held liable, as long as they are commercial suppliers of the product. Those who occasionally sell products (i.e., selling a used car) will not be held strictly liable.


A.  The elements of a cause of action are:

1) a defective product;

2) that the defect is the actual cause of the plaintiff’s injury;

3) that the defect is the proximate cause of the injury; and

4) that the plaintiff suffered injury. Note that the injury must be greater than the loss of the product itself. If the plaintiff is only seeking compensation for the loss or failure of the product, he or she should seek to recover through a warranty theory.

B) Defenses to products liability are:

1) Assumption of risk,

2) comparative fault, and

3) misuse.

Some courts consider an allegation of misuse as an attack on the plaintiff’s prima facie case (see Part 4) .


Tests for the elements of the cause of action:

1. Defective Products

a. Manufacturing defects.

Usually, a manufacturing defect is a flaw in an individual product, which does not meet the standards of the manufacturer.

i. General Rule

(A)  The product was in a defective condition that made it unreasonably dangerous for intended use, and

(B)  the defect existed when the product left the defendant’s control.

Example: Coca-Cola bottle explodes in waitress’ hand. Lee v. Crookston Coca-Cola Bottling Co.

ii. The Consumer Expectations Test

The most common test for determining whether a product is defective is the Consumer Expectations Test.  If the product is more dangerous than a reasonable consumer would expect, it’s defective.

The test does not work well where:

(A) The Plaintiff needs an expert to establish the product is defective.

(B) The Plaintiff is a child.

(C) The Plaintiff is unfamiliar with the product.

(D) The Plaintiff is a bystander.

(E) The design is inherently dangerous.

 See Jackson v. NestleLeichtamer v. American Motors

b. Design Defects

i. Risk-Utility Test

(A) The product design is more dangerous than an ordinary consumer would expect, and

(B) The risks inherent in the design outweigh its benefits. Balance (1) against (2).

(1) The benefit of present design, including

(a) whether there is a reasonable alternative design, and

(b) the costs of the reasonable alternative design.

(2). The risk of injury/danger posed by present design, including

(a)  the likelihood of harm, and

(b) the severity of harm.

ii. Consumer Expectations Test- see above.

iii. California Rule (small minority) From Barker v. Lull Engineering.

(A)  The plaintiff  must prove that either:

(1)  the product did not meet consumer expectations, or

(2) the product proximately caused P’s injury.

(B) If the plaintiff meets his burden, the burden shifts to D to prove that the utility of the product outweighs risk.

iv. Drugs- As long as the patient is properly warned of the risks of the drug, design defect liability is ruled out.

c. Information Defects

The Defendant must warn against dangers that are not apparent to consumers. This includes dangers due to foreseeable misuse.

1. Adequate Warning Rule

In general, warnings must:

(A) contain information necessary to permit a reasonable person to avoid the danger, and

(B) be sufficiently forceful and clear. See Carruth v. Pittway Corp. (inadequate instructions for placement of smoke alarm).

2. Heeding Presumption

Courts generally presume a warning would have been heeded if it had been given.  In Liriano v. Hobart Corp., for example, the court stated that the burden was on the Defendant to show lack of warning was not the actual cause of the Plaintiff’s injury.

c. Learned Intermediary Rule

For drugs, the manufacturer only needs to warn the prescribing doctor.


B. Defenses: 

1. Assumption of Risk

Defendant must show that the Plaintiff

a. knew of the risk, and

b. unreasonably continued to use the product.

2. Comparative Fault

a. Restatement/California: Use comparative fault rules to reduce Plaintiff’s recovery (compare P’s fault to D’s).

b. Many states will not apply comparative fault when the Plaintiff’s only negligence was to fail to discover, or guard against, the defect.

c. Bowling v. Heil Co. (Ohio): no comparative fault in PL cases.

3. Misuse

Assertion that the Plaintiff used the product in an unforeseeable manner.

a. Was the Plaintiff’s misuse of the product unforeseeable? Put another way, was the misuse unreasonable?

b. If the Defendant could foresee the Plaintiff’s misuse of the product, the Defendant is liable. Plaintiff’s recovery may still be reduced on a comparative fault basis.

c. If the Defendant could not foresee the Plaintiff’s misuse, the Defendant is not liable, because either

i) the product was not defective, or

ii) the defect was not the proximate cause of the Plaintiff’s injury.

Note that at least one court has held that misuse is an attack on the prima facie case (lack of proximate cause), as opposed to an affirmative defense. Under this view, the burden is on the Plaintiff to show that he or she used or misused the product in a manner foreseeable by the Defendant. Hughes v. Magic Chef, Inc.






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