Products Liability
	OR
A Remedy Without a Cause

Before the Industrial Revolution, and in many parts of the world today, the things people purchased were simple – usually grown by neighbors or made by artisans in the far-distant adjacent village. But long before Internet, things like assembly-line manufacturing, steam engines, hard-surface roads and the like changed economic patterns that had existed for centuries. Instead of going to the local blacksmith to get the horse shoed, one bought a shiny new automobile made all the way across the country in Michigan. The things people purchased became more complicated and imported from really distant places, but still most people could, or knew someone who could, explain how the things worked and actually fix them with only a few tools.

Something like a new industrial revolution started in the early decades of the 20th Century and is still going strong – new and faster manufacturing techniques, transportation means and methods, things with embedded electronics that can hardly be seen, much less fixed without even more sophisticated and expensive equipment. Mass production does not always produce uniformly perfect products. Economic and other pressures have been known to spur production of less-than-optimal things. But not knowing how to fix something (or even how it does what it does) rarely keeps a person from using that thing. In the usual "Murphy's Law" course of events persons using these newfangled contraptions got hurt – even died!

People who are injured sometimes think that somebody else should foot the bill, even if they do not have a good idea of who or why. As this type of injury increased, and the average person became less able to knowingly evaluate or avoid risks, the pressure on the legal system to provide a remedy grew.

The Common Law system has not survived for 800+ years because it does not change with the times. However, these product-caused injuries presented a dilemma. Common Law civil remedies (remedies for injuries in litigation between private individuals and businesses) developed in two general categories, i.e. contract-type remedies (ex contractu) and tort-type (ex delicto).

In the early 1900s cases, often against accounting firms, expanded the range of persons who might obtain a remedy for breach of contract. Still, to win a contract-type case, one must show the existence of some pre-injury relationship between the damaged party and to party to be held accountable. A person slashed by glass shrapnel from an exploding soft-drink bottle usually does not have an identifiable prior relationship with any party that might have breached a contract obligation and triggered the explosion.

Tort law also made some progress toward expanding the class of injured persons who could recover for their injuries. That progress was not so much a modification of legal theory as it was a recognition that larger, faster, stronger things posed greater risks over greater areas. Despite the expansion, the injured person still had to produce evidence of what act, and what actor, lead to the injury. Think of the person struck by a car while walking down a deserted (except for him and the car) country road at night. The car speeds on and the one-time walker wakes up in a hospital three weeks later with no idea where, or who, he is. No question about injury. No question about someone being liable. Big question about who. When someone is injured by a mass-produced product, frequently the only potential link to a liable person is a brand name, or a store where similar items are sold. That is not enough to establish who should be held liable, much less what that person did which merits holding him, her or it liable.

The Common Law cavalry to the rescue – maybe. Long, long ago and far, far away in 19th Century England, a court was confronted with a compelling case. A man had constructed a dam across a stream on his property. The resulting pond ("impounded water") was recognized as a powerful force – it contained the energy used to drive the wheels of manufactories across the land. Water is powerful because it is heavy. Try holding a gallon of milk with your arm straight out from the shoulder. The water this man had impounded pushed mightily on the ground beneath, and soaked in a little, too. In not too long, the impounded water broke through into an old coal mine shaft quite a number of yards beneath the pond. Neither the man or anyone in the neighborhood knew about the mine shaft. Unfortunately, that abandoned shaft connected with other shafts some distance away from the pond. Those shafts had not been abandoned. Many mine workers drowned; some were only injured severely. The survivors sued the landowner for damages. Even though they could prove who, they could not prove that the landowner had done anything negligent (maybe no duty to the miners, maybe no breach of duty).

The highest English court decided that the landowner was liable, even if he was without fault – a stunning departure from established tort theory. He was liable, the court said, because he had created this extraordinarily dangerous and powerful thing, impounded water. And he did not do it for aesthetic purposes, but for purely economic reasons. Therefore, he was liable because he had knowingly created this extraordinarily dangerous thing and should be held accountable for any and all injuries resulting from its existence and use.

Common Law being what it is, other courts began to find other things that were extraordinarily dangerous or "ultrahazardous". Such things as: Dynamite (the atomic bomb of the 19th Century). A weak-legged 64-cup coffee pot full of hot coffee (even before a McDonald's drive-thru window existed). A scaffolding on which men worked many stories above the ground, also with a weak leg or link. An automobile with a flawed wood wheel-spoke. The list grew, but it did not really threaten to supplant negligence or other common tort theories.

Some practically minded legal theorists began to say that the ultrahazardous theory shoulc apply whenever a product caused injury. They did not garner a lot of support because most people, legal theorists included, thought there still should be something done "wrong" before liability is imposed. Other theorists took a different tack. They said: "Look out there on the market. People want these products; people buy these products even when they have some idea that their purchase may someday cause them severe bodily or emotional injury." And, they said: "Look who is benefitting from all these sales – not only the purchasers, but the manufacturers." Inevitably, someone is going to be injured by some products – especially defective products. The theory went on to propose that these manufacturers, and other businesses in the chain of distribution, are in a much better position to "spread the risk" of the losses, by increasing their prices (so all consumers pay a small bit of the loss), or by purchasing insurance (and passing that cost along, too). All consumers and manufacturers receive the benefit of the product, which costs only slightly more, while the person actually injured does not have to suffer the losses alone. And, on top of all those benefits, manufacturers will be encouraged to take more care and produce fewer defective products. Obviously this is more economic theory than legal theory.

But these economics based theories essentially won the day. The result is rules, and court decisions, similar to Restatement (Second) of Torts § 402A [Text page 475]. Under that rule, any seller of a "product in a defective condition unreasonably dangerous to the user. . ." is liable for the resulting injuries. The only requirements are that the seller be engaged in the business of selling that product (thereby excluding garage-sale sellers), and that the product is expected to reach the market in essentially the same condition as it was in the seller's hands. Restatement § 402A specifically rejects two historic defenses: First, the tort-law defense that all possible care was exercised in producing the product. Second, the contract-law defense that there was no prior relationship between the seller and the party injured. This seems to clearly solve the problem of intermittently exploding soft drink bottles.

In the good Common Law tradition, persons and courts started asking: "What is an unreasonably dangerous condition?" "What is a ‘defect'?" "What about the guy who knows that a product is dangerous, or totally ignores the possibility of danger, and uses the product anyway?" And, if a person knows he can recover for product-related injuries, without regard to how stupid or negligent he is in using the product, why would he take any precautions to protect himself?" Even if one fully supports the theory behind, and general result of, Restatement § 402A, those are legitimate questions.

Many courts held that products are not unreasonably dangerous if the user is informed about the potential dangers associated with using the product. Thus all the warnings one finds on products. Of course, warning labels raise additional questions. How much, and what type of, notice is sufficient to say the product is no longer unreasonably dangerous? Must a seller be concerned only about common, intended uses or should a seller be concerned about misuse? What type of misuse? And, when is information (warning) necessary – if one is selling windshield sun screens (intended to keep the temperature down in a closed car), is it really necessary that the back side of the sun screen warn: "Remove this before driving"?

The courts have not reached a consensus about what sort of defenses should be available to the defective-product seller. They almost unanimously agree that the consumer must carry some burden to protect himself and others. But no rule about how much responsibility, or any particularly supporting theory, is even close to a majority, much less unanimity. Some courts apply "regular" contributory or comparative negligence rules. Some use something more like the traditional "assumption of the risk" theory. Many just decide individual cases without stating any theory. Thus, the theory and application of "products liability" law is not uniform within the United States.

If one looks further, even more variety appears. The European Union has adopted a general standard for products liability that is in some ways almost identical to Restatement § 402A. In lesser-developed countries, product liability law is rudimentary, or non-existent. Needless to say, it will be some time yet before a manufacturer or seller can put a product out on the market with complete confidence about the probability and extent of liability it may incur.