Most injuries arising from products used to be resolvable as negligence claims against the manufacturer. Old-fashioned privity requirements might get in the way if one bought from a retailer rather than the manufacturer, and the common law evolved to try to deal with that. Separate questions arose around whether there might be a stricter standard for a defendant than negligence. When a radio is purchased and turns out not to function, we do not inquire about whether the seller was negligent — the seller simply owes a remedy in warranty, whether or not the fault in the radio was the result of an absence of due care, so long as it originated in the factory. But warranty remedies have tended to be limited to replacement costs rather than damages for harm, and privity requirements are especially strong when arising from contract, as warranty does. The 1960’s saw American law evolve to establish a duty in tort, rather than contract, for products to function as promised, not causing unexpected harm, without an inquiry into negligence.

So if you’re hurt by a poorly made product, you might well have a straightforward negligence case against the manufacturer. But, again, as mass production ramped up over the last century, some judges found the existing negligence frame unsatisfactory. California’s Escola case is famous not for its majority opinion but its concurrence, one in which Justice Traynor urges a seemingly entirely new regime for the burgeoning number of cases in which a product hurts a consumer: strict liability. Within a few years, Traynor’s vision become a majority one in many jurisdictions, including his own California, though with enough caveats that the “strict” is probably no longer the best moniker. Instead, it’s a regime all its own: products liability. This and the next section’s cases look at products liability and its caveats, including what would become three major types of cases brought under its rubric: manufacturing defect, design defect, and failure of warnings. As you read these cases, it’s worth considering, both in theory and in practice, when a case that would work under products liability would fail in plain negligence – or vice versa.

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