Products Liability All over the Map

By Grigsby, Robert; Harkins, Kevin et al. | Risk Management, July 1992 | Go to article overview

Products Liability All over the Map


Grigsby, Robert, Harkins, Kevin, Madigan, Thomas, Risk Management


An early model car known as the "Buick Model 10 Runabout" became the subject of a liability suit after its wooden wheel spokes collapsed and subsequently ejected and injured the driver, Donald C. MacPherson. The Lawsuit that Mr. MacPherson brought against Buick Motor Co. is regarded as a landmark case because it changed the general that a contractural relationship must exist with the manufacturer in order for an injured party to recover party to recover damages. Courts throughout the country abandoned contractural relationship as a basis for liability, exposing manufacturers to a new class of suits for defective products.

Products liability law has come a long way since its modem inception at the turn of the century. Across the nation, products liability reform bills sit in state legislative committees, evidence of the rising sentiment that the pure common law system has pushed products liability to an outer limit, and that statutory help is needed to halt further expansion of this effect. Meanwhile, American industry suffers from a lack of uniform standards for determining when a manufacturer or supplier should be liable for a defective product. The risk of uncertainty that this engenders often becomes too great for many small businesses and manufacturing start-ups. It also escalates the price of research and development of new product lines, injuring both consumers and suppliers because competitiveness suffers. Courts and society have an interest in encouraging product safety and compensating persons injured by unsafe products, but this must be tempered with the recognition that manufacturers and suppliers should not be guarantors of the absolute safety of all products in all circumstances.

The evolution of products liability in this country has been conducted primarily on a case-by-case basis. Lawyers term this the common law system of justice, meaning that the law exists in the cases that formulate and apply it, as opposed to statutory law, which is law made by legislatures. To understand the current state of manufacturers' liability it is necessary to examine how radically the liability of manufacturers has expanded in recent times.

After the MacPherson case, the next major evolutionary step in the expansion of manufacturers' liability was a framework of law designated the Restatement (Second) of Torts, which was propounded by a body known as the American Law Institute in the early 1960s. The most famous component of this treatise is Section 402(A), which states: "One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer."

This section, adopted by many states, provided for liability against a manufacturer without the traditional showing of negligence. A negligence standard, which had been used in products cases according to prior law, considered the defendant's conduct in the light of a reasonable person in similar circumstances. Section 402(A) expands the basis of liability for manufacturers by shifting the focus from the seller's conduct to the condition of the product itself.

An accepted rationale for a treatise work, such as the Restatement (Second) of Torts, is to distill from the many cases the "black letter" law, or the law written in its simplest, purest terms. Once it has been distilled it may be adopted by states in the hope of providing uniformity, sensibility and certainty in the law. Section 402(A) and strict liability, however, are anything but uniform, sensible or certain in courts across the United States.

Even though almost every state has adopted Section 402(A) in some form, there are vast differences in the very definition of what makes a product "defective." For example, 402(A)'s standard of a "defective product unreasonably dangerous" has been rejected through the common law in such states as Pennsylvania. …

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