In Search of a Remedy: Do State Laws Exempting Sellers from Strict Product Liability Adequately Protect Consumers Harmed by Defective Chinese-Manufactured Products?

Article excerpt

I. INTRODUCTION
II. BACKGROUND
    A. The Birth of Strict Liability for Nonmanufacturers
    B. Rationales for Strict Liability for Nonmanufacturers
    C. Criticisms of Strict Liability for Nonmanufacturers
    D. Laws Limiting the Liability of Nonmanufacturers
       1. The Model Uniform Product Liability Act
       2. State Limits on Nonmanufacturer Liability
          a. Laws That Absolutely Immunize Nonmanufacturing Sellers
             from Strict Liability
          b. Laws That Immunize Nonmanufacturing Sellers from Strict
             Liability with an Exception for Cases Where a Court
             Cannot Gain Jurisdiction over the Manufacturer
          c. Laws That Immunize Nonmanufacturing Sellers from Strict
             Liability with an Exception for Cases Where a Court Has
             Declared the Manufacturer Insolvent
          d. New Jersey's Nonmanufacturing Seller Strict Liability
             Statute
          e. Sealed Container Defective Imports from China
          f. Why Focus on China?
          g. The Difficulty for US. Citizens to Sue in Chinese Courts
          h. The Ability of U.S. Courts to Gain Jurisdiction over
             Chinese Manufacturers
          i. The Difficulty of Enforcing U.S. Court Judgments in China
          j. China's Bankruptcy Law
III. ANALYSIS
     A. This Note's Assumptions
     B. Current State Laws Limiting the Liability of Nonmanufacturers
        Fail to Protect Consumers Injured by Defective Chinese Products
     C. The Model Act Protects Consumers Injured by Defective Chinese
        Products
IV. RECOMMENDATION
V. CONCLUSION

I. INTRODUCTION

A wave of defective Chinese-manufactured products hit U.S. shores in the past few years, (1) creating a firestorm of bad publicity for the Chinese manufacturers and the U.S. retailers of these products. (2) This on-going crisis coincides with a U.S. state-level trend of enacting laws limiting the liability of sellers of defective products and shifting liability to the manufacturer. (3) This Note examines the intersection of this crisis and this trend by analyzing whether state laws limiting the liability of sellers of defective products offer adequate protection to consumers injured by defective Chinese-manufactured products.

Part II of this Note examines the juridical rise of the doctrine of strict liability for all sellers of defective products and the resulting backlash, leading to state laws generally exempting nonmanufacturing sellers from strict liability. Part II categorizes these state laws based on the exceptions they provide that allow courts to hold the seller strictly liable. Part II also examines the barriers faced by U.S. consumers harmed by defective Chinese-manufactured products when attempting to sue the manufacturer in U.S. or Chinese courts.

Part III examines whether state laws exempting sellers of defective products from strict liability offer adequate protection to consumers harmed by Chinese-manufactured products. Part III analyzes these laws under the categories established in Part II. Part III also examines and discusses the limits of the protection that the Model Uniform Product Liability Act (4) affords consumers harmed by defective Chinese products. Part 1V suggests measures that states can take when drafting laws limiting the product liability of sellers of defective products to provide adequate protection to consumers harmed by Chinese-manufactured defective products.

II. BACKGROUND

A. The Birth of Strict Liability for Nonmanufacturers

The doctrine of strict tort liability for products first appeared in Escola v. Coca Cola Bottling Co., (5) a 1944 case in which Justice Traynor, in a concurring opinion, advocated going beyond the majority's res ipsa loquitur (6) approach to a strict liability standard for manufacturers. (7) Twenty years later, strict liability for manufacturers gained the support of a majority of the California Supreme Court in the landmark case Greenman v. …