Liability for Intentional Torts, Negligence and Strict Liability
Privity of Contract:
Products liability is the area of the law that governs entities responsible for placing products into the stream of commerce and determines who is liable if the prescribed standard of care is not met.
When a defective product causes injury, the manufacturer of the product, the distributor, the wholesaler and the retailer who sold the product may all be liable to the plaintiff. The difficulty in analyzing products liability cases is that liability can arise from one of four legal theories:
- intentional torts, in this case typically battery,
- ordinary negligence,
- strict liability negligence or,
- breach of warranty.
The consequences of suing under one legal theory over the other three will be felt in defenses available and damages recoverable. Certain defenses will be available to the defendant under certain legal theories while they will not be available under others. Further, certain damages (punitive damages) will be recoverable under certain legal theories and will not be recoverable under others.
The laws of products liability determine liability of manufacturers, distributors, wholesalers and retailers for physical harm suffered by the plaintiff or his property that are caused by defects in the product. As we will see later purely economic loss is not recoverable.
As with most areas of the law, products liability law has evolved. Originally a manufacturer or supplier was only liable for injuries to plaintiffs with whom he was in privity of contract. If there was no privity there was no liability. Thus, unless the plaintiff was the actual purchaser of the product, he had no legal recourse against the manufacturer or supplier for the injuries he suffered. Eventually the courts began to reject this privity requirement and started holding manufacturers and suppliers liable for injuries suffered by plaintiffs with whom they were not in privity of contract.
If a manufacturer or supplier sells a product that he knows is defective or dangerous or where he believes that injuries are substantially certain to result from the using of the product, he may be liable for battery to any plaintiff injured by the product. See Huset v. J.I. Case, 120 F. 865 (8th Cir. 1903).
Cases involving manufacturers or suppliers intentionally placing dangerous products into the stream of commerce are relatively rare. The more common scenario is where manufacturers and suppliers are sued for unintentional injuries their products have caused.
The general rule regarding these negligence cases is that if it is reasonably foreseeable that a product will create a risk of death or injury to a plaintiff if the product is not carefully made or supplied, the manufacturer and supplier have a duty to carefully manufacture and supply the product. Further, now that the concept of privity does not apply, this duty is owed to any foreseeable user of the product. See MacPherson v. Buick, 217 N.Y. 382 (1916).
Over the years the courts have extended this general rule. For example, while the general rule creates a duty of care in manufacturing and supplying the product, the courts have extended this to include a duty of care in designing the product as well. See Boeing Airplane Co. v. Brown, 291 F.2d 301 (9th Cir. 1961). Also, while the general rule dictates that the duty of care is owed to all foreseeable users of the product, the courts have extended this to include all plaintiffs foreseeably within the scope of use of the product. See Flies v. Fox Bros. Buick, 218 N.W. 855 (Wis. 1928). For example:
Bill purchases some fireworks from a local dealer. As Bill is walking home with his purchase, the fireworks, which are defective, explode, injuring Bill and injuring Al, a pedestrian who is walking on the other side of the street. Under the general rule, Al probably could not sue the fireworks manufacturer because he was not a foreseeable user of the product. However, under the case law establishing that the duty of care extends to all plaintiffs foreseeably within the scope of use of the product, Al will be able to sue the fireworks manufacturer.
Further, while the general rule allows for recovery where the plaintiff has been injured personally, case law has extended recovery to include property damage as well.
Finally, case law has extended the general rule to include assemblers of parts manufactured by others. That is to say, where Company X takes different components from different manufacturers and assembles those components into a final product, which it sells under its own name, Company X may be liable if a plaintiff is harmed by a negligently manufactured component. For example:
Cool Breeze Inc. sells refrigerators. However, it does not manufacture any of the refrigerator parts. Rather Cool Breeze purchases the parts from other manufacturers and assembles their refrigerators from these parts. Bill is injured when a negligently manufactured cooling unit explodes in his refrigerator. Bill will be able to sue both the manufacturer of the cooling unit and Cool Breeze itself even though Cool Breeze did not manufacturer the defective cooling unit. Even though all Cool Breeze did was assemble the refrigerator from component parts and supply the refrigerator to Bill, liability will attach because any assembler who takes another manufacturer's product (in this case, the component parts) and markets it as its own, is subject to liability as if he himself had manufactured the product.
Assemblers are liable even if they could not have detected the defects through a reasonable inspection.
Finally, case law has allowed plaintiffs to use res ipsa loquitor to bring their cases to the jury by showing that the defect in the product that caused their injuries does not usually occur without some negligence on the part of the manufacturer.
While most products liability cases determine the question of a manufacturers and suppliers’ liability, there are situations in which middlemen may be liable to the plaintiff as well.
Typically, the duty owed by a middleman is the duty to inspect and test the products or, at the very least, to warn the plaintiff as to the potential danger involved in using the product. However, the middleman is only required to fulfill this duty when he has reason to know that the product may be dangerous to a plaintiff in its normal use. See Kirk v. Stineway, 187 N.E.2d 307 (Ill. 1963).
This duty will arise in instances where, for example, the middleman has purchased goods for resale from an unreliable source, where the danger that the product poses is not labeled on the packaging, where the middleman has received complaints about the product from other customers, or where the product is the type of product the buyer normally relies on the middleman to inspect before buying. The middleman however owes no duty to inspect, test or warn if he has no reason to know that the product may be dangerous in its normal use.
A middleman’s liability usually has no bearing on the manufacturer’s liability. Therefore, if a middleman breaches his duty by failing to inspect, test or warn, his liability will not cancel out the manufacturer’s liability. In fact, the plaintiff may be able to sue both the middleman and the manufacturer. See Ellis v. Lindmark, 225 N.W. 395 (Minn. 1929). However, where the manufacturer unintentionally sold a defective product to the middleman and the middleman actually knows that the product is defective, sells it to the plaintiff anyway and fails to warn the plaintiff about the defect, the middleman’s actions here will cut off the manufacturer’s liability. See Stultz v. Benson Lumber Co., 6 Cal.2d 688 (1936).
As we mentioned before, in cases involving negligence, the plaintiff can recover for injuries he suffered himself or for property damage caused by the product. However, purely economic loss is not recoverable. Economic loss can be recovered under a breach of warranty theory which we will discuss in a later chapter.
Finally, as in all other negligence cases, contributory negligence and assumption of risk can be used as viable defenses. Therefore, if the plaintiff knowingly uses a defective product, he will be barred from recovering for his injuries. Alternatively comparative negligence will reduce the plaintiff’s recovery as well.
Today, most jurisdictions hold manufacturers and suppliers strictly liable for the injuries their defective products cause. Strict liability in these cases was established as a matter of public policy because of the danger involved in placing damaged or defective products into the stream of commerce. See Greenman v. Yuba Power Products, 59 Cal.2d 57 (1963).
There are several rationales for imposing strict liability. First, the manufacturer is in a much better position to avoid a risk of loss than the consumer is. Second, more often than not, negligence is too hard to prove in products liability cases and strict liability represents the only way an injured plaintiff could recover for his injuries and, third, the threat of liability without fault hopefully acts as an incentive for manufacturers to make sure that their products are safe.
Please note that strict liability in this instance does not mean that liability will automatically attach once the plaintiff in injured. In order for a manufacturer to be found strictly liable, the plaintiff must prove that the product was defective, that the defect was caused by the manufacturer or supplier and that the defect caused the plaintiff’s injuries. See Kerr v. Corning Glass, 169 N.W.2d 587 (Minn. 1969).
Further, whether or not strict liability is imposed instead of ordinary negligence may hinge on the type of defect that caused plaintiff’s injuries. For example, while strict liability will attach in cases involving manufacturing defects, ordinary negligence will be applied in cases involving design defects or warning defects.
There are three types of defects that are covered by products liability law: manufacturing defects, design defects and defects in the sufficiency of warnings that accompany a product. We examine these in detail in the next chapter.