TOPIC:
PRODUCT LIABILITY LAW – UNSAFE, DEFECTIVE AND UNREASONABLY
DANGEROUS PRODUCTS
By
Samuel Baah-Boateng

CONTENTS
1.0 Objectives and Reasons
2.0 Introduction
3.0 Brief History
4.0 Theories of Product Liability
4.1 Negligence
4.2 Breach of Warranty
4.2.1 Express Warranty
4.2.2 Implied Warranty
4.2.3 Merchantability and Fitness for a Particular use
4.3 Strict Liability
5.0 Responsible Parties
6.0 Types of Product Defects
6.1 Design Defects
6.2 Manufacturing Defects
6.3 Marketing Defects
7.0 Conclusion
8.0 Reference

1.0 OBJECTIVES AND REASONS
This research focuses on product liability: the liability that manufacturers and other
sellers have to immediate purchasers, users, and consumers of products, or to affected
bystanders, for physical injury and property damage caused by defective products they
place on the market. The research sets to find out some background on the shift in law
surrounding the protection of the public from harmful products placed on the market and
also the three well-recognized theories of liability—negligence, breach of warranty, and
strict liability—that a buyer may use as the basis for recovery if he or she is injured by a
defective product.

2.0 INTRODUCTION
The law of product liability is the area of law which deals with the liability of the
manufacturer, wholesaler or retailer of a product for injuries resulting from dangerous
and defective products. Products subject to the law run the spectrum from food, drugs,
appliances, automobiles, medical devices, medical implants, blood, tobacco, or even
commercial jets. At common law (law derived from judicial holdings carried over to the
United States from England) the sale of a product was viewed as a commercial
transaction upon which only the parties to the commercial contract could sue.
The law has evolved to the point where today virtually anyone injured by a defective
product that is unreasonably dangerous or unsafe, the injured person may have a claim or
cause of action against the company that designed, manufactured, sold, distributed,
leased, or furnished the product. In other words, the company may be liable to the person
for his injuries and, as a result, may be required to pay for his damages. That, in short, is
product liability; and, not surprisingly, the legal liability that arises out of the design,
manufacturing, distribution and sale of defective or dangerous products.

3.0 BRIEF HISTORY
While the product liability cases today stem from the Consumer Product Safety Act
(CPSA) of 1972 ("CPSA," 1972) prior historical cases and events fueled the debate and
subsequent passage of the act.
Prior to the turn of the century the general attitude was that of caveat emptor, or “buyer
beware” based on common law. “The logic was simple: people should examine what they
are to receive before they buy it.” The origin for caveat emptor stem from “early English
social and legal philosophy reflected [in] the manufacturing nature of the economy
(Vaughn, 1999).”
As products increased in complexity and sophistication, it became more difficult for a
buyer to discover product defects with a simple inspection. In early product liability
cases, the right to sue for damages caused by a defective product was generally limited to
the parties in direct contract or a third-party beneficiary of a contract. In product liability
cases, this was called “privity of contract,” which is defined as the direct contractual
relationship between a seller and the immediate buyer.
In 1916, the McPherson v. Buick Motor Company case resulted in abolition of privity
requirements in product liability. It remains one of the best-known product liability cases.
Elimination of requirements of privity is believed to have had the greatest impact upon
the development of product liability.

4.0 THEORIES OF PRODUCT LIABILITY
There are a number of theories or counts upon which an injured party can bring an action
in product liability law. The plaintiff may include a count for each theory, or may choose
to sue on only one. The theories are:
• Negligence
• Breach of Warranties
• Strict Liability

4.1 Negligence
Negligence, is the failure of a person to act carefully (exercise reasonable care), thereby
causing another person to suffer physical injury or property damage (e.g., a defective tire
blows out and causes total loss of the car). A manufacturer can be held liable for
negligence if lack of reasonable care in the production, design, or assembly of the
manufacturer's product caused harm.
As applied to product liability, the law of negligence imposes a duty on the manufacturer
or other seller in the chain of sale to exercise reasonable care to place a safe product on
the market. A safe product is one that is free from defects.
A basic negligence claim consists of proof of
• a duty owed,
• a breach of that duty,
• the breach was the cause in fact of the plaintiff's injury (actual cause),
• the breach proximately caused the plaintiff's injury
• and the plaintiff suffered actual quantifiable injury (damages)
As demonstrated in cases such as Winterbottom v. Wright, the scope of the duty of care
was limited to those with whom one was in privity. Later cases like McPherson v. Buick
Motor Co. broadened the duty of care to all who could be foreseeably injured by one's
conduct.
Over time, negligence concepts have arisen to deal with certain specific situations,
including negligence per se (using a manufacturer's violation of a law or regulation, in
place of proof of a duty and a breach) and res ipsa loquitur (an inference of negligence
under certain conditions).
The case of McPherson v. Buick Motor Co. established beyond question that the
manufacturer or any other seller in the chain of distribution (e.g., a wholesaler or retailer)
responsible for placing the defective product on the market is liable. This case further
established that others (e.g., innocent bystanders) who were harmed by the defective
product could also sue. Negligent conduct very often relates to a manufacturer’s improper
design of the product, a failure to inspect the product properly for defects after it leaves
the assembly line, a failure to test the product adequately, or a failure to warn of a known
danger related to the product.

4.2.0 Breach of Warranties
Breach of warranty refers to the failure of a seller to fulfill the terms of a promise, claim,
or representation made concerning the quality or type of the product. The law assumes
that a seller gives certain warranties concerning goods that are sold and that he or she
must stand behind these assertions.
The story of warranty begins with a contract for the sale of goods. In that contract, as an
inducement to buyers, sellers guarantee that the products they sell will conform to certain
qualities, characteristics, or conditions and that they are suitable for the use for which
they are intended. This guarantee by a seller is called a warranty.
If a warranty is false, the seller has committed a breach. If the buyer suffers harm as a
result of the breach, he or she may bring an action for damages. The primary breach of a
“warranty” is the fitness of use of the product.
Product liability law is primarily concerned with three of these warranties (Kionka,
1999):
• Express warranties
• Implied warranties
• Merchantability and fitness for a particular use
4.2.1 Express Warranties
An express warranty is an oral or written guarantee given by manufacturers and sellers
(e.g., retailers). Exactly what they promise in their express warranties is entirely up to
them. A manufacturer’s express warranty is generally in writing, either on a separate card
or as part of the instructions packed with the product. As indicated, express warranties
may be oral or written. Accepting an oral warranty is not a good idea because the buyer
may have a problem establishing its existence if the seller should deny having given such
a warranty.
The representations or promises relating to the material facts about the products, as
described in salespersons’ statements, in pictures or writing on product or product
packaging, and in advertisements persuaded the consumer to buy product. A breach
occurs when these representations are not true.
In other words an express warranty is “a promissory assertion of fact about the product
which the seller made as a part of the sales transaction and which was a ‘basis of the
bargain.”

4.2.2 Implied Warranties
An implied warranty is an obligation the law imposes on a seller. An implied warranty is
not in writing and is not part of the sales contract. When a sale of goods is made,
however, certain warranties become part of the sale even though the seller may not have
intended to create them. These implied warranties protect the buyer when there is little or
no opportunity to inspect the goods or the seller does not expressly warrant the goods.
Breach of the implied warranty is grounds for a suit for money damages if injury or
damage results from use of the product.
4.2.3 Merchantability and fitness for a particular use
Merchantability and fitness for a particular use – “requires that the product (and its
container) meet certain minimum standards of quality, chiefly that it be fit for the
ordinary purposes for which the goods are sold. This includes a standard of reasonable
safety.”
This is furthered with “fitness for a particular purpose” where the seller “knows or has
reason to know” what specific purpose the goods sold will be used for and the purchaser
of these goods is relying on the supplier to provide “suitable” goods.
4.3 Strict Liability
Along with negligence and breach of warranty, the third major area of products liability
that a buyer may choose as the basis for recovery if he or she is injured by a defective
product is strict liability. This theory, based on tort law, is now the dominant product
liability theory used as a basis for lawsuits in nearly every state. This originated from a
California court decision called Greenman v. Yuba Power Products, Inc. (1963).
Under a strict liability standard, once the plaintiff establishes that a product is defective,
liability results from that fact alone no matter how much care was applied during design,
manufacture, marketing, distribution and sale (Larson, 2003)
Strict liability (also referred to a strict product liability) focuses on the product itself and
not on the conduct of the manufacturer or others in the chain of sale. Courts in strict
liability cases are interested that a product defect arose but not how it arose. The injured
party, suing as the plaintiff, simply needs to show that a product was unreasonably
dangerous at the time it left the manufacturer’s or other seller’s control and that she or he
suffered an injury, without reference to negligence.
Unreasonably dangerous means the plaintiff must present evidence that the product posed
a substantial likelihood of harm because
1. it contained a design defect,
2. a flaw occurred in the manufacturing process, or
3. the product was not accompanied by appropriate warnings of a risk or hazard
(failure to warn)
The injured party does not have to show how or why the product became defective.
Consequently, even an innocent manufacturer—one that has not even been negligent—
may be liable if the injured party can show a link between the unreasonably dangerous
product and the injury. Without proving to the court that this link exists, the injured party
may not prevail in a lawsuit under the strict liability theory.
Under a strict liability standard, once the plaintiff establishes that a product is defective,
liability results from that fact alone no matter how much care was applied during design,
manufacture, marketing, distribution and sale (Larson, 2003).

5.0 RESPONSIBLE PARTIES
For product liability to arise, at some point the product must have been sold in the
marketplace. Historically, a contractual relationship, known as "privity of contract," had
to exist between the person injured by a product and the supplier of the product in order
for the injured person to recover. Any person who foreseeably could have been injured by
a defective product can recover for his or her injuries, as long as the product was sold to
someone.
Liability for a product defect could rest with any party in the product's chain of
distribution, such as the manufacturer, wholesalers, a retail seller of the product, and a
party who assembles or installs the product. For strict liability to apply, the sale of a
product must be made in the regular course of the supplier's business. Thus, someone
who sells a product at a garage sale would probably not be liable in a product liability
action.

6.0 TYPES OF PRODUCT DEFECTS
Under any theory of liability, a plaintiff in a product liability case must prove that the
product that caused injury was defective, and that the defect made the product
unreasonably dangerous. There are three types of defects that might cause injury and give
rise to manufacturer or supplier liability: design defects, manufacturing defects, and
marketing defects. Design defects are present in a product from the beginning, even
before it is manufactured, in that something in the design of the product is inherently
unsafe. Manufacturing defects are those that occur in the course of a product's
manufacture or assembly. Finally, marketing defects are flaws in the way a product is
marketed, such as improper labeling, insufficient instructions, or inadequate safety
warnings.

6.1 Design Defects
A design defect is some flaw in the intentional design of a product that makes it
unreasonably dangerous. Thus, a design defect exists in a product from its inception. For
example, a chair that is designed with only three legs might be considered defectively
designed because it tips over too easily.
Design defect claims often require a showing of negligence; however, strict liability may
be imposed for an unreasonably dangerous design if the plaintiff can present evidence
that there was a cost-effective alternative design that would have prevented the risk of
injury. In some cases, if a product was so unreasonably dangerous that it never should
have been manufactured, the availability of a safer design might not be required to hold
the designer liable.

6.2 Manufacturing Defects
A product has a manufacturing defect when the product does not conform to the
designer's or manufacturer's own specifications. Manufacturing defect cases are often the
easiest to prove, because the manufacturer's own design or marketing standards can be
used to show that the product was defective. But proving how or why the flaw or defect
occurred can be difficult, so the law applies two special doctrines in product liability
cases to help plaintiffs recover even if they cannot prove a manufacturer was negligent.
The first doctrine, known as "res ipsa loquitur," shifts the burden of proof in some
product liability cases to the defendant(s). Translated, this Latin term means "the thing
speaks for itself," and indicates that the defect at issue would not exist unless someone
was negligent. If the doctrine is successfully invoked, the plaintiff is no longer required to
prove how the defendant was negligent; rather, the defendant is required to prove that it
was not negligent.
The second rule that helps plaintiffs in product liability cases is that of strict liability. If
strict liability applies, the plaintiff does not need to prove that a manufacturer was
negligent, but only that the product was defective. By eliminating the issue of
manufacturer fault, the concept of no-fault or "strict" liability allows plaintiffs to recover
where they otherwise might not.

6.3 Marketing Defects
Marketing defects include improper labeling of products, insufficient instructions, or the
failure to warn consumers of a product's hidden dangers. A negligent or intentional
misrepresentation regarding a product may also give rise to a product liability claim.

7.0 CONCLUSION
We live in an age of consumerism. Our courts are becoming the tools used by consumers
to establish their rights. Liability is imposed upon the manufacturer or the seller, in part,
because they are in a better position to redistribute the loss among all users.
However, with the potential for, and increasing numbers of, frivolous lawsuits something
should be done to regulate the current system. This is not to say that society should
return to the days of caveat emptor, or “buyer beware,” but rather the system needs to
move away from the current trend of “seller beware.”
Although the legal theories affecting product liability have been liberalized over the
years, a manufacturer is not absolutely liable for injury/damages resulting from the use of
his product. Product liability cases have encouraged manufacturers to design,
manufacture and distribute safer products. Furthermore, product liability cases have
rightfully forced these same manufacturers to properly warn consumers of the potential
dangers with their products. Again, proper documentation of measures taken by a
manufacturer in designing, manufacturing and marketing a safe product is essential to
successfully defending a product liability litigation.

8.0 REFERENCES
a) Consumer Product Safety Act, 15 37 (1972)
b) Greenman v. Yuba Power Products, Inc. (1963)
c) Kionka, E. J. (1999). Torts In A Nutshell (Third ed.). St. Paul, MN: West
Group.
d) Larson, A. (2003, September 2003). Product Liability Law - Protecting
Consumers from Defective Products. Retrieved November 20, 2003, from
http://www.expertlaw.com/library/pubarticles/Product_Liability/product_l
iability.html
e) Legal-definitions.com.Negligance Definition. Retrieved November 19,
2003, from http://www.legal-definitions.com/
f) Legal-definitions.com.Warranty Definition. Retrieved November 19,
2003, from http://www.legal-definitions.com/
g) McPherson v. Buick Motor Co. (111 N.E. 1050)
h) Vaughn, R. C. (1999). Legal Aspects of Engineering (Sixth ed.). Dubuque,
IA: Kendall/Hunt Publishing Company
i) Winterbottom v Wright (1842) 10 M&W 109