Products Liability | Pam Karlan | September 05, 2013


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Products Liability

by Pam Karlan Show/Hide

In contemporary society, many of the injuries individuals suffer result from their using consumer products — think of people who suffer adverse drug reactions (Susan Zuchowicz; Judith Sindell); break their jaws when soccer goalposts collapse (James Coleman); or cut their hand on the peanut jar (Richard Welge).

Over the course of the twentieth century, courts evolved distinctive doctrines for dealing with these sorts of injuries. These doctrines are grouped under the heading of “products liability.” They have their most important bite in cases where the ordinary tort rules would prevent the plaintiff from recovering for her injuries — because, for example, she can't show that the defendant she wants to sue (maybe the store where she bought the product — as opposed to the original manufacturer, who may have gone out of business, may not be amenable to suit where she wants to bring her case [by now you may have read cases like Nicastro and Worldwide Volkswagen in your Civil Procedure course], or may otherwise be less desirable) breached any conventional duty of care.

The basic rule, laid out in section 1 of the Restatement (Third) of Torts: Products Liability (1998) is that

One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.

Note that rule this imposes a different responsibility on individuals and corporations “engaged in the business of selling.” So if you sell your used car to your neighbor, the ordinary rules about negligence apply to you. But if you go into the business of selling cars, then you'll be held to a different standard. Note, too, that causation and damages are still required.

Most importantly, the rule turns on whether the product is “defective.” People can be injured by products that operate exactly as they should. For example, when Thomas Jenner plowed into the Hammontrees' bike shop, there's no reason to think the crash had anything to do with his car not operating properly.

The Restatement's definition of product defects appears in section 2 of the Restatement (Third) of Torts: Product Liability.

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:

(a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;

(b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;

© is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

The materials in this section plumb these concepts. We begin with the classic case in which California Supreme Court Justice Roger Traynor laid out the basic concept that became modern products liability law.


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  1. 1 Show/Hide More Escola v. Coca Cola Bottling Company of Fresno
    Original Creator: Jonathan Zittrain Current Version: Pam Karlan
    There's something poetic about the fact that the plaintiff's name is Gladys Escola, no? There are a number of famous cases in the law with oddly suitable captions. My favorite is Loving v. Virginia, 388 U.S. 1 (1967), involving a couple who sued successfully to overturn Virginia's ban on interracial marriage. There also Truelove v. Truelove, 488 So. 2d 174 (Fla. Dist. Ct. App. 1986). Maybe not: it was a divorce proceeding.
  2. 3 Show/Hide More Winter v. G.P. Putnam & Sons
    Original Creator: Glapion86 Current Version: Pam Karlan
  3. 4 Show/Hide More Soule v. General Motors Corp.
    Original Creator: Jonathan Zittrain Current Version: Pam Karlan
    When identifying possible design defects, should courts use tests other than the “consumer expectation” test? If so, under what circumstances would the alternative test be appropriate?
  4. 5 Show/Hide More McCarthy v. Olin Corporation
    Original Creator: Pam Karlan Current Version: Pam Karlan
  5. 6 Show/Hide More Emery v. Federated Foods, Inc.
    Original Creator: Jonathan Zittrain Current Version: Pam Karlan
    Aside from manufacturing and design defects, should courts hold manufacturer's liable for a failure to warn customers of the risks involved in the use of a product?
  6. 8 Show/Hide More Selected California Civil Jury Instructions on Products Liability Claims
    These instructions set out the basic elements of the various forms of products liability claims

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November 11, 2013

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Pam Karlan

Professor of Law

Stanford Law School

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