Damages for Pain and Suffering and Emotional Distress in Products Liability Cases Involving Strict Liability and Negligence

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I. INTRODUCTION: THE CONTEXT

Two of the important theories used to establish liability in modern products liability cases are negligence and strict liability. Compensatory damages are generally awarded in products liability cases based on a negligence theory in order to reimburse a plaintiff for losses (damages) caused as a result of the conduct of a defendant. (1) Cases involving strict liability focus on defects existing in a product rather than on the conduct of a particular defendant. (2)

Negligence: Elements of Proof

Numerous sections of the Restatement (Second) of Torts deal with the liability of persons who supply goods based on a theory of negligence. (3) Generally, these sections provide that the supplier is liable for the "physical harm" caused by the product. Official comments to these sections indicate that "physical harm" includes both bodily harm and property damage.

The most widely used definition of negligence provides that "[n]egligence is the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do." (4) When a negligence action arises in products liability, the plaintiff must focus on the conduct of the manufacturer or seller; thus, the plaintiff must prove that the defective product was caused by the negligent conduct of the manufacturer or seller. (5)

In products liability cases, the plaintiff is generally required to establish four elements. First, the plaintiff must establish that the manufacturer or the seller owed a duty of reasonable care in the design, manufacture, or sale of the product. (6) Second, the plaintiff must prove that the defendant seller or the defendant manufacturer breached that duty by failing to exercise the standard of care of a "reasonable person" under the circumstances of the case. (7) Third, the plaintiff must prove that the plaintiff suffered personal injury or damage to his or her property. (8) Fourth, the plaintiff must prove that the breach of duty was both the cause-in-fact and the proximate cause of his or her injury or damages. (9) Most courts have defined cause-in-fact by the "but for" or "sine qua non" test, (10) requiring the plaintiff to prove that his or her injury would not have occurred if the product defect had not existed. (11) However, the proof-of-negligence requirements have been significantly moderated in some cases by the development of the concepts of negligence per se (12) and res ipsa loquitur (13)--but only under very limited circumstances.

Strict Liability

Strict liability in tort is an alternative to finding liability through negligence. The imposition of strict liability in tort has been justified on numerous policy grounds. Justice Traynor listed several rationales for imposing absolute liability (an earlier iteration of the theory) in his concurring opinion in Escola v. Coca Cola Bottling Co., (14) a case that was the clear precursor to the creation of the theory of strict liability in tort. These rationales, among others, include (1) providing an incentive for manufacturers to produce safer products and to minimize the losses to society from those products; (15) (2) recognizing that the manufacturer is in a better position than the consumer to absorb or pass on the costs from injuries that result from defective products; (16) (3) eliminating the problems of proof that confront plaintiffs in negligence actions, which often involve assertions of contributory negligence by the manufacturer in order to defeat a plaintiff's claim. (17) As a general proposition, Justice Traynor noted, "An injured person ... is not ordinarily in a position to refute [a showing of proper care] or identify the cause of the defect, for he can hardly be familiar with the manufacturing process as the manufacturer himself is." (18)

Indeed, it took almost twenty years for the California Supreme Court to adopt the views of Justice Traynor concerning the imposition of strict liability. …