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Chapter 7
Strict Liability and Product Liability
INTRODUCTION
If you—or one of your students—burned yourselves on scalding hot coffee you bought at a fast food drive-
through window and wanted to sue, what legal theories could you use? In this type of personal injury suit, a plaintiff
could probably pursue a number of different product liability theories of recovery. These could include contract
theories like express warranty or the implied warranty of merchantability. They might also include tort theories, such
as negligence or strict liability.
This chapter begins with a look at strict liability law, in which intent is not an element. Strict liability is an
CHAPTER OUTLINE
I. Strict Liability
Under the doctrine of strict liability, liability is imposed for reasons other than fault.
A. ABNORMALLY DANGEROUS ACTIVITIES
• Strict liability is applied to abnormally dangerous activities because of their extreme risk of
2 UNIT TWO: TORTS AND CRIMES
• Strict liability is imposed on persons who keep dangerous animals for harm inflicted by the animals.
B. APPLICATION OF STRICT LIABILITY TO PRODUCT LIABILITY
In the area of product liability, strict liability is applied as a matter of social policy—
II. Product Liability
A. BASED ON NEGLIGENCE
1. Due Care Must Be Exercised
Due care must be exercised in—
• Designing products.
• Selecting materials.
2. Privity of Contract Not Required
An action based on negligence does not require privity of contract).
3. Cause in Fact and Proximate Cause
CASE SYNOPSIS—
Case 7.1: Schwarck v. Arctic Cat, Inc.
Karen Schwarck was operating an Arctic Cat snowmobile with her sister, Edith Bonno, as passenger. The
sisters were killed when the Cat went backward through a fence and over a bluff. Their spouses filed a suit in
a Michigan state court against the maker, Arctic Cat, Inc., alleging negligent design. The vehicle was
equipped with a reverse alarm that did not sound the entire time the vehicle was in reverse. The court ruled
that there was no dispute the alarm was “operational” and issued a summary judgment in the defendant’s
favor. The plaintiffs appealed, arguing that the alarm, though “operational,” was defective because it caused
Schwarck to be confused about whether she was in forward or reverse gear.
CHAPTER 7: STRICT LIABILITY AND PRODUCT LIABILITY 3
Notes and Questions
Does a manufacturer have an ethical obligation beyond its legal duty to warn the buyers of its
Suppose that the Arctic Cat 660 did not have an alarm bell and that occasionally, when the
gearshift was pushed forward, the vehicle did not shift into forward as expected. Is this a feature that
ADDITIONAL BACKGROUND—
Product Liability Based on Negligence
A manufacturer who fails to use reasonable care in manufacturing its product may be liable for harm
caused by the product to those whom the manufacturer should expect to be endangered by use of the
product. This rule is stated in the Restatement (Second) of Torts, Section 395. The following is the text of
Restatement (Second) of Torts, Section 395, Comments—selected comments accompanying the section.
Comment:
a. History. The original common law rule was contrary to that stated in this Section. The case of
Winterbottom v. Wright, 10 M. & W. 109, 152 Eng. Rep. 402 (1842), in which a seller who contracted with the
4 UNIT TWO: TORTS AND CRIMES
the first of which involved the rule stated in §§ 388, 390, and 394, that a manufacturer who knew that the
chattel was dangerous for its expected use and failed to disclose the danger became liable to a third person
injured by the defect.
classified as a food.
In 1916 the leading modern case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.
1916F, 696, Cas. 1916C, 440, 13 N.C.C.A. 1029 (1916), discarded the general rule of non-liability, by holding
that “inherently dangerous” articles included any article which would be dangerous to human safety if
negligently made. After the passage of more than forty years, this decision is now all but universally accepted
by the American courts. Although some decisions continue to speak the language of “inherent danger,” it has
very largely been superseded by a recognition that what is involved is merely the ordinary duty of reasonable
care imposed upon the manufacturer as to any product which he can reasonably expect to be dangerous if he
is negligent in its manufacture or sale.
b. This Section states the rule thus generally adopted. The justification for it rests upon the responsibility
ENHANCING YOUR LECTURE—
MACPHERSON V. BUICK MOTOR CO. (1916)
In the landmark case of MacPherson v. Buick Motor Co.,a the New York Court of Appeals—New York’s
highest court—dealt with the liability of a manufacturer that failed to exercise reasonable care in
manufacturing a finished product.
CASE BACKGROUND
The case was brought by Donald MacPherson, who suffered injuries while riding in a Buick automobile
that suddenly collapsed because one of the wheels was made of defective wood. The spokes crumbled into
fragments, throwing MacPherson out of the vehicle and injuring him.
CHAPTER 7: STRICT LIABILITY AND PRODUCT LIABILITY 5
manufacturer. There was evidence, though, that the defects could have been discovered by reasonable
inspection by Buick and that no such inspection had taken place. MacPherson charged Buick with negligence
for putting a human life in imminent danger.
THE ISSUE BEFORE THE COURT AND THE COURT’S RULING
The major issue before the court was whether Buick owed a duty of care to anyone except the immediate
purchaser of the car (that is, the Buick dealer). In deciding the issue, Justice Benjamin Cardozo stated that
“[i]f the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently
made, it is then a thing of danger. . . . If to the element of danger there is added knowledge that the thing will
be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the
manufacturer of this thing of danger is under a duty to make it carefully.”
APPLICATION TO TODAY’S WORLD
This landmark decision was a significant step toward the world we live in today—in which it is common for
an automobile manufacturer to be held liable when its negligence causes a product user to be injured. As is
often the situation, technological developments necessitated changes in the law. Had the courts continued to
require privity of contract in product liability cases, today’s legal landscape would be quite different indeed.
B. MISREPRESENTATION
When fraudulent misrepresentation to a user or consumer results in injury, it may serve as a basis of
liability. A bad ad or label can show intent, but the injured party must have relied on it.
III. Strict Product Liability
Imposed since the 1960s in many states, strict product liability does not require privity of contract, or proof of
fault or the lack of reasonable care
A. STRICT PRODUCT LIABILITY AND PUBLIC POLICY
This liability is based on the public-policy assumptions that—
• Consumers should be protected against unsafe products.
6 UNIT TWO: TORTS AND CRIMES
1. Development of the Doctrine
2. Stated Public Policy
Public policy can be expressed in a statute or a court’s interpretation of a statute.
CASE SYNOPSIS—
Case 7.2: Bruesewitz v. Wyeth, LLC
When Hannah Bruesewitz was six months old, her pediatrician administered doses of the DTP vaccine.
As a consequence, Hannah suffered seizures and was diagnosed with “residual seizure disorder” and
“developmental delay.” Her parents, Russell and Robalee Bruesewitz, filed a suit in a Pennsylvania state
court against Wyeth LLC, the maker of the vaccine, alleging strict product liability. The suit was moved to a
federal district court, which held that the claim was preempted by the federal National Childhood Vaccine
Injury Act of 1986 (NCVIA). The U.S. Court of Appeals for the Third Circuit affirmed. The Bruesewitzes
appealed.
..................................................................................................................................................
Notes and Questions
How does the result in this case affect the Bruesewitzes? Explain. Under the National Childhood
Vaccine Injury Act of 1986 (NCVIA), once a claimant receives a decision from the U.S. Court of Federal
Claims, he or she has two options—the decision may be accepted, or it may be rejected and tort recovery
It might be noted that the decision of the U.S. Court of Federal Claims included a not-inconsiderable
award of attorney’s fees to the Bruesewitzes despite its denial of their claim.
CHAPTER 7: STRICT LIABILITY AND PRODUCT LIABILITY 7
B. THE REQUIREMENTS FOR STRICT PRODUCT LIABILITY
For a cause of action in strict product liability against a manufacturer—
• A product must be in a defective condition when the manufacturer sells it.
• The manufacturer must be normally engaged in the business of selling it.
ADDITIONAL BACKGROUND—
Strict Product Liability
The Restatement (Second) of Torts explains how the doctrine of strict liability should be applied to assess
liability against sellers of goods (including manufacturers, processors, assemblers, packagers, bottlers,
wholesalers, distributors, and retailers). The following is the text of Restatement (Second) of Torts, Section
402A, Comments—selected comments accompanying the section.
Comment:
* * * *
b. History. Since the early days of the common law those engaged in the business of selling food
intended for human consumption have been held to a high degree of responsibility for their products. As long
ago as 1266 there were enacted special criminal statutes imposing penalties upon victualers, vintners,
brewers, butchers, cooks, and other persons who supplied “corrupt” food and drink. In the earlier part of this
century this ancient attitude was reflected in a series of decisions in which the courts of a number of states
sought to find some method of holding the seller of food liable to the ultimate consumer even though there
Recent decisions, since 1950, have extended this special rule of strict liability beyond the seller of food for
human consumption. The first extension was into the closely analogous cases of other products intended for
intimate bodily use, where, for example, as in the case of cosmetics, the application to the body of the
consumer is external rather than internal. Beginning in 1958 with a Michigan case involving cinder building
blocks, a number of recent decisions have discarded any limitation to intimate association with the body, and
8 UNIT TWO: TORTS AND CRIMES
have extended the rule of strict liability to cover the sale of any product which, if it should prove to be
defective, may be expected to cause physical harm to the consumer or his property.
* * * *
d. The rule stated in this Section is not limited to the sale of food for human consumption, or other
products for intimate bodily use, although it will obviously include them. It extends to any product sold in the
* * * *
f. Business of selling. The rule stated in this Section applies to any person engaged in the business of
selling products for use or consumption. It therefore applies to any manufacturer of such a product, to any
wholesale or retail dealer or distributor, and to the operator of a restaurant. It is not necessary that the seller
be engaged solely in the business of selling such products. Thus the rule applies to the owner of a motion
picture theatre who sells popcorn or ice cream, either for consumption on the premises or in packages to be
taken home.
The rule does not, however, apply to the occasional seller of food or other such products who is not
engaged in that activity as a part of his business. Thus it does not apply to the housewife who, on one
occasion, sells to her neighbor a jar of jam or a pound of sugar. Nor does it apply to the owner of an
automobile who, on one occasion, sells it to his neighbor, or even sells it to a dealer in used cars, and this
* * * *
h. A product is not in a defective condition when it is safe for normal handling and consumption. If the
injury results from abnormal handling, as where a bottled beverage is knocked against a radiator to remove
the cap, or from abnormal preparation for use, as where too much salt is added to food, or from abnormal
CHAPTER 7: STRICT LIABILITY AND PRODUCT LIABILITY 9
i. Unreasonably dangerous. The rule stated in this Section applies only where the defective condition of
the product makes it unreasonably dangerous to the user or consumer. Many products cannot possibly be
made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only
from over-consumption. Ordinary sugar is a deadly poison to diabetics, and castor oil found use under
Mussolini as an instrument of torture. That is not what is meant by “unreasonably dangerous” in this Section.
The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary
1. Proving a Defective Condition
It need not be shown why or how a product became defective, but it must be shown that at the time
2. Unreasonably Dangerous Products
A product is reasonably dangerous if—”
• It is dangerous beyond the reasonable expectations of the ordinary consumer.
• A less dangerous alternative was economically feasible but the manufacturer failed to produce
it.
C. PRODUCT DEFECTS
The Restatement (Third) of Torts: Products Liability replaces some of the hard-to-understand distinctions
that developed when courts applied different theories of liability to the same defects. The Restatement
(Third) categorizes product defects into the following three types.
1. Manufacturing Defects
A product “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.” This
includes products that are physically flawed, damaged, or incorrectly assembled.
a. Quality Control
Liability is imposed regartdless of whether quality control efforts were “reasonabel.”
10 UNIT TWO: TORTS AND CRIMES
b. Expert Testimony
2. Design Defects
A product “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.”
a. Test for Design Defects
To determine whether a product has a design defect, the focus is on its actual design and the
reasonableness of that design. To succeed on this theory, a plaintiff has to show—
• A reasonable alternative design.
b. Factors to Be Considered
1) Risk-Utility Analysis
2) Consumer-Exprctations Test
Under this test, a product is unreasonably dangerous when it fails to perform in the
manner reasonably to be expected by the ordinary consumer.
ENHANCING YOUR LECTURE—
SCHOOL SHOOTINGS AND STRICT LIABILITY
Over the past decade, school shootings have led to lawsuits that pose a novel question for the courts:
Can the producers and distributors of violence-laden media, such as video games and Internet transmissions,
be held liable for the shootings? In one case, for example, the plaintiffs were the parents of several students
who were killed by their classmate, Michael Carneal, in a 1997 high school shooting in Kentucky. The
The Negligent Claim
One of the plaintiffs’ claims was that the defendants had breached a duty of care by distributing such
violent products and were thus negligent. The court, however, did not agree with the plaintiffs that the
defendants owed a duty of care to the victims. A defendant’s duty of care extends only to those who are
CHAPTER 7: STRICT LIABILITY AND PRODUCT LIABILITY 11
injured as a result of a foreseeable risk. In the court’s eyes, a school shooting was not a foreseeable risk for
the defendants. Thus, the court dismissed the negligence claim.
Were the “Products” Defective?
The plaintiffs also alleged that the defendants should be held liable in strict product liability because the
violence contained in their products rendered those products “defective.” The court never reached the issue
Furthermore, stated the court, even assuming that the videos, video games, and Internet transmissions
were products, the plaintiffs could not succeed in a strict product liability action. For strict product liability to
apply, the injuries complained of must have been caused by the products themselves. In this case, the
injuries were caused not by the products but by Carneal’s reaction to the products.a
For Critical Analysis
3. Inadequate Warnings
A product is defective “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 . . . and the omission . . . renders the product not reasonably safe.”
a. Content of Warnings
b. Obvious Risks
There is no duty to warn about risks that are obvious or commonly known.
c. Foreseeable Misuses
12 UNIT TWO: TORTS AND CRIMES
d. State Laws and Constitutionality
An action alleging that a product is defective due to an inadequate label can be based on state
law, but that law must not violate the U.S. Constitution.
D. MARKET-SHARE LIABILITY
In some cases, some courts have not required proof as to which specific defendant manufactured the
E. OTHER APPLICATIONS OF STRICT PRODUCT LIABILITY
IV. Defenses to Product Liability
One defense is that there is no basis for the claim because the plaintiff has not proved its elements.
CASE SYNOPSIS—
Case 7.3: VeRost v. Mitsubishi Caterpillar Forklift America, Inc.
Drew VeRost was employed at a manufacturing facility owned by Nuttall Gear, LLC. While standing on a
forklift to engage a lever on the mast, VeRost inadvertently stepped on the vehicle’s gearshift lever. This
caused the mast to move backward, pinning VeRost against the forklift's metal roll cage and injuring him. He
filed a suit in a New York state court against the forklift’s maker, Mitsubishi Caterpillar Forklift America, Inc.,
..................................................................................................................................................
Notes and Questions
Could victims of a mass shooting successfully sue the manufacturer of a violent video game for a
design defect if the shooter had been a devoted player of that violent game? This question is likely to be
raised in the wake of the 2013 mass shooting at Sandy Hook Elementary in Newtown, Connecticut. The
CHAPTER 7: STRICT LIABILITY AND PRODUCT LIABILITY 13
A. PREEMPTION
An injured party may not be able to sue the manufacturer of a defective product that is subject to a
federal regulatory scheme.
B. ASSUMPTION OF RISK
Some states do not allow assumption of risk as a defense in strict product liability cases. In other states,
the following elements must be shown—
C. PRODUCT MISUSE
If a party used a product for something for which it was not designed, the party may not be able to
D. COMPARATIVE NEGLIGENCE (FAULT)
Most courts consider a plaintiff’s negligence in apportioning liability. Some courts will consider only a
plaintiff’s intentional conduct, however.
E. COMMONLY KNOWN DANGERS
If a plaintiff’s injury resulted from a commonly known danger, the defendant will not be liable.
F. KNOWLEDGEABLE USER
If a plaintiff’s injury resulted from a danger commonly known to similarly situated individuals (such as
G. STATUTES OF LIMITATION AND REPOSE
• A typical statute of limitations provides that an action must be brought within a specified period of
time after the cause of action accrues. For product liability actions, this is typically two to four years
TEACHING SUGGESTIONS
1. Discuss product liability from the point of view of the consumer movement. Students might be asked to
discuss some of the experiences that they or their relatives or friends have had with defective products.
Appropriate experiences could be used to focus an outline of the principles dealt with in this chapter by dis-
14 UNIT TWO: TORTS AND CRIMES
2. Ask students what they think are public policy reasons for not applying a theory of strict product liability.
The doctrine has not been without controversy and, as the text points out, some states do not recognize it.
3. Under the crashworthiness doctrine, liability is imposed for defects in the design or construction of motor
vehicles that increase the extent of injuries if an accident occurs, even when the defects is not the cause of
Cyberlaw Link
In what circumstances might the doctrine of strict product liability apply in the context of
cyberspace? Should a business be liable in product liability if it spreads a virus unwittingly—by, for
example, sending an infected document to another computer, or simply leaving a company computer
“on” and connected to a broadband network through which a hacker gains access?
DISCUSSION QUESTIONS
1. On what public policy grounds is strict liability imposed? Strict liability is imposed as a matter of public
policy, based on the assumptions that (1) consumers should be protected against unsafe products, (2) manufacturers
2. What are abnormally dangerous activities? Abnormally dangerous activities are activities that involve
3. Why is the theory of strict liability applied to abnormally dangerous activities? The theory of strict lia-
4. What is meant by strict liability? In what circumstances is strict liability applied? Strict liability is liability
5. To avoid liability on a negligence theory in a product liability suit, to what extent must a manufacturer
exercise due care? A manufacturer must exercise due care to make a product safe for its intended use. Due care
CHAPTER 7: STRICT LIABILITY AND PRODUCT LIABILITY 15
6. Under the Restatement (Second) of Torts, Section 402A, what are the requirements for a cause of
action in strict liability in a product liability suit? For a cause of action in strict liability in a product liability suit
7. Can an injured bystander recover from a manufacturer or seller on a strict liability theory? Yes—all
courts extend the strict liability of manufacturers and other sellers to injured bystanders (when the explosion of an
8. Other than immediate sellers and manufacturers, who may be subject to strict liability? The strict lia-
bility doctrine has been expanded to include suppliers of component parts. Strict liability for personal injuries caused
9. What distinguishes strict liability as a theory for recovery in a product liability case from other bases
for recovery? Under the doctrine of strict liability, persons may be held liable for the results of their acts regardless
10. How defective must a product be to support a cause of action in strict liability in a product liability
suit? Normally, a product must be so defective as to be unreasonably dangerous—either (1) the product was dan-
gerous beyond the expectation of an ordinary consumer or (2) a less dangerous alternative was economically feasible
ACTIVITY AND RESEARCH ASSIGNMENTS
16 UNIT TWO: TORTS AND CRIMES
1. Students could be asked to research their state’s product liability law. Many state legislatures have modified the
law in various ways, and the changes are ongoing. One of the most common changes has been to limit the amount
2. There have been repeated attempts to enact a federal statute in the area of product liability. Ask students to
EXPLANATIONS OF SELECTED FOOTNOTES IN THE TEXT
Footnote 9: Baseball umpire Edwin Hickox was injured during a baseball game in Washington, D.C., while
wearing a mask made by Wilson Sporting Goods Co. Hickox filed a suit in a court in the District of Columbia against
Wilson, alleging product-liability claims. A jury issued a verdict in Hickox’s favor. Wilson appealed. In Wilson
Sporting Goods Co. v. Hickox, the District of Columbia Court of Appeals affirmed, holding that to determine whether
the product’s design was defective, the consumer-expectations test was the appropriate standard in this case. Under
that standard, “considering all the evidence, a reasonable juror could conclude that an ordinary consumer would have
expected the mask to perform more safely than it did.”
Could Wilson have successfully argued an assumption-of-risk defense against Hickox’s product-liability
claim? To successfully assert an assumption-of-risk defense in a design-defect case, the defendant must offer
What factors did the court consider in determining whether the evidence in this case was sufficient to
establish reasonable consumer expectations? In the Wilson case, the court applied the consumer-expectations
test to evaluate the sufficiency of the evidence. The court considered the degree of danger in the product at issue and
Can a jury make “inferences” to arrive at a verdict? Yes, a jury can make reasonable inferences in arriving at
CHAPTER 7: STRICT LIABILITY AND PRODUCT LIABILITY 17
How did the appellate court’s conclusion in this case affect the parties? In this case, the District of
Columbia Court of Appeals affirmed the lower court’s judgment. The appellate court determined that “considering all
Footnote 15: Other states that have embraced the market share liability theory include Wisconsin (Collins v.
Eli Lilly & Co., 342 N.W.2d 37 (Wis. 1984) and Florida (Conley v. Boyle Drug Co., 570 S.E.2d 275 (Fla. 1990).
States that have declined to do so include Iowa (Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67 (Iowa 1986), Missouri
(Zafft v. Eli Lilly Co., 676 S.W.2d 241 (Mo. 1984), and Illinois (Smith v. Eli Lilly Co., 137 Ill.2d 222, 560 N.E.2d 324,
148 Ill.Dec. 22 (1990). Also, most of the federal courts that have addressed the issue have declined to adopt the
theory on the ground that it represents a radical departure from the common law of the state in which each sits without
a clear direction from the state’s supreme court.
Footnote 22: McDonald’s Corp. is based in Oak Brook, Illinois, with about 13,000 restaurants in the United
States and a 43 percent share of the U.S. fast food market. McDonalds of New York (MNY) is based in Albany, New
York, but owns and operates fast food outlets throughout the state. Ashley Pelman, New York resident, and other
teenagers who often ate at MNY outlets, became overweight and developed adverse health effects. Their parents
The court granted the plaintiffs time to amend their complaint to state a viable claim. How might the plaintiffs
amend their complaint? The court indicated that if it were possible, the plaintiffs might “attempt to show that over-
The court listed the ingredients of Chicken McNuggets, discussed their processing, and acknowledged that “[i]t is
at least a question of fact as to whether a reasonable consumer would know . . . that a Chicken McNugget contained
so many ingredients other than chicken and provided twice the fat of a hamburger. . . . This argument comes closest
to overcoming the hurdle presented to plaintiffs. If plaintiffs were able to flesh out this argument in an amended
complaint, it may establish that the dangers of McDonalds’ products were not commonly well known and thus that
McDonalds had a duty toward its customers.”
What might the defendants assert against this argument? The court stated that McDonald’s might claim “it is
Where should the line be drawn between an individual’s responsibility to take care of himself or herself,
and society’s responsibility to protect that individual? The court recognized that “[t]he issue of determining the
18 UNIT TWO: TORTS AND CRIMES
