Academic journal article The Review of Litigation

Warning: You May Possess Continuing Duties after the Sale of Your Product! (an Evaluation of the Restatement (Third) of Torts: Products Liability's Treatment of Post-Sale Duties)

Academic journal article The Review of Litigation

Warning: You May Possess Continuing Duties after the Sale of Your Product! (an Evaluation of the Restatement (Third) of Torts: Products Liability's Treatment of Post-Sale Duties)

Article excerpt

I. introduction

The American Law Institute first recognized "privity-free strict liability for sellers of products" in 1964 when it adopted section 402 A of the Second Restatement of Torts.1 At the time of the Second Restatement, products liability was in its infancy and neither the courts nor the drafters had considered issues such as the standards for defective design or warnings.2 Certainly, the drafters had not considered whether or not duties would apply or exist after the sale of a product. In 1998, the American Law Institute published "an almost total overhaul of the Second Restatement as it concerns the liability of sellers of products."3

The Restatement (Third) of Torts: Products Liability considered the state of manufacturing, product distribution, and governmental regulation. Reviewing the changes to the industrial and legal landscapes, the drafters updated the products liability rules of the second restatement, and included a chapter devoted to the "liability of commercial product sellers not based on product defects at the time of sale."4

Until the Third Restatement, courts rarely considered arguments for duties arising after the sale of a product, leaving this to the area of government regulation when necessary. The drafters of the Restatement recognized that the imposition of such duties could have several negative effects ranging from the "daunting" costs of identifying and communicating with product users years after the sales occurred to imposing never ending burdens upon sellers with each product update or change in design.5 Nonetheless, the drafters believed that "in particular cases, triers of fact could reasonably find that product sellers can practically and effectively discharge such an obligation and that the risks of harm are sufficiently great to justify what is typically a substantial post-sale undertaking."6

Since the publishing of the Third Restatement more than thirty states have adopted various versions of duties arising after the sale of a product. Now commonly known as "post-sale duties," courts distinguish their requirements from prior products liability law, carving out a place for these duties in the law unto themselves. "We choose the label 'post-sale' rather than 'continuing.' The post-sale claim is separate from the warning claim asserted with respect to the point of sale. A post-sale warning could not be given at the point of sale because a manufacturer would not have knowledge to give it."7

With continuing and growing acceptance in the law, the recognition of post-sale duties means that responsibility for a product no longer ends at the time of sale. Manufacturers and sellers should recognize that post-sale duties are not just a trendy update of products liability law, and should heed the warning that they may possess a post-sale duty to warn, recall, or retrofit their products.

II. THE THIRD RESTATEMENT'S PROVISIONS DEFINING POST-SALE DUTIES

The Third Restatement approaches post-sale warnings as a duty born in negligence rather than strict liability.8 Section 10 imposes liability upon a seller (or manufacturer or distributor) for harm resulting from the failure to provide a warning after the time of sale "if a reasonable person in the seller's position would provide such a warning."9 The Restatement offers guidance in identifying the situations when a "reasonable seller" would provide post-sale warnings. Specifically, a post-sale warning should reasonably be provided when:

(1) the seller knows or reasonably should know that the product poses a substantial risk of harm to persons or property; and

(2) those to whom a warning might be provided can be identified and can reasonably be assumed to be unaware of the risk of harm; and

(3) a warning can be effectively communicated to and acted on by those to whom a warning might be provided; and

(4) the risk of harm is sufficiently great to justify the burden of providing a warning. …

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