The Strange World of Product Liability Legislation


Learning to understand product liability law is like untangling a nest weaved by an entire murder of demented crows. In the first place, this legislation (in the United States) mainly falls in the ambit of state legislatures, which have managed to create several very dissimilar frameworks for it. A “product” usually means a physical object, but can theoretically be extended to services as well – legal advice, for instance. Finally, the case law in this area is often contradictory, confusing and somewhat arbitrary.

The Different Types of Product Liability

Let’s imagine that you buy a personal grooming appliance to help fix your hair, but it malfunctions while in use, leaving you with a bald patch.

Now, if numerous users have experienced the same problem, this may be due to a design defect meaning that the product is inherently dangerous or unfit for use, regardless of the materials and workmanship involved. Perhaps your particular unit suffered from a manufacturing defect. In this case, the manufacturer may be liable for negligence, or under the theory of strict liability, for the consequences of using their product even if negligence can’t be proved.

On the other hand, perhaps you used your curler while your hair was wet, which was not the manufacturer’s intended mode of operation. However, did the manufacturer make a reasonable effort to point this out to the user? If not, this would constitute a failure to warn about a danger that’s not self-evident, or marketing defect.

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Arguing Product Liability

Depending on the jurisdiction and the facts of the matter, any product liability suit can be approached from a number of strategic directions. National brands will sometimes prefer to settle out of court even when they stand a good chance of winning, as the potential costs of negative publicity outweigh those of a quick and quiet settlement. Alternatively, it may be called into question whether the product was used in line with the manufacturer’s guidelines, if the product was altered or damaged subsequent to sale, whether the defect was really the fault of some other party in the supply chain and so forth.

Further Wrinkles in the Weft

In the case of certain products, liability claims can to some extent be avoided before the fact. For instance, once the FDA approves some pharmaceutical drug for sale, it’s safe for consumption by definition if not in reality. This does not absolve the manufacturer from marketing defects, though, and in fact a number of lawsuits have resulted from this.

The doctrine of strict liability was established as being in the public interest as a result of inferior standards being established overtly or tacitly by entire industries. If, for instance, all parachute manufacturers regarded a certain grade of nylon as adequate for their needs, every expert witness would say so, negligence would be impossible to prove, and the claimant would be left without any kind of recourse.

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The Difficulty of Trying to Strike a Balance Between all Parties’ Rights

Sellers are expected to clearly warn buyers about dangers associated with a product which are not obvious. What, however, does that word mean, assuming the user acts in a “reasonable” manner? The manufacturer may claim that anyone purchasing their product can be expected to understand its use, in much the same way as screwdrivers aren’t intended for surgery. On the other hand, many companies now find it easier to simply cover all of their legal bases as far as this is concerned. This is where cautionary labels such as “do not iron clothes while wearing” and “coffee may be hot” come from. At the end of the day, such superfluous advice may do more harm than good by burying real warnings among a mass of nonsense, such as Toshiba helpfully advising me not to ingest any fluids leaking from my laptop.

Clearly, it’s desirable to hold manufacturers liable for errors of omission or commission that cause economic or physical harm to their customers, while also protecting them against spurious suits. Drawing this line in statutory terms is difficult, though, as making every item sold absolutely safe may be prohibitively expensive, while allowing defective products on the market allows companies to externalize costs they should fairly bear themselves. If the plaintiff is successful, the amount of damages to be awarded is just as problematic, especially where subjective valuations like the amount of discomfort suffered are involved.