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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