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Understanding the Interplay Between Strict Liability and Product Liability

January 06, 2021

Strict liability and products liability are foundational theories of legal liability relied on by personal injury lawyers when seeking justice for clients who have suffered at the hands of third parties. These two theories are related and share similarities—but they are not identical.

Strict Liability: Liability No Matter the Level of Fault

In contrast to intentional torts and negligence, the legal theory of strict liability does not rely on the intent of a defendant or how their actions compare to what a reasonable person might have done. Instead, strict liability is imposed on a defendant solely based on the nature of their alleged conduct.

There are three kinds of conduct that give rise to strict liability. The first is the possession of animals known to be harmful. For example, if a property owner keeps on their property, an aggressive dog that has previously attacked, and it attacks a visitor, the property owner could be strictly liable for the visitor’s injuries regardless of the precautions taken to prevent an attack.

The second type of conduct that gives rise to strict liability is engaging in abnormally dangerous activities. Typically, an abnormally dangerous activity (1) is not commonly undertaken in a community or under certain circumstances, (2) creates foreseeable and significant potential harm to people or property and (3) carries with it a high degree of risk of harm that cannot be abated through the exercise of reasonable care. Examples of abnormally dangerous activities might include storing hazardous waste in a residential area and using dynamite near a densely populated part of town.

Products Liability: A Unique Form of Strict Liability

The third kind of conduct that gives rise to strict liability is products liability. Products liability is the theory of legal liability under which the manufacturer or seller of a defective product is held liable for injuries to a consumer caused by that product’s use. In a products liability case, any or all parties that are involved in a product’s chain of distribution—including the manufacturer, distributor and the retailer that sold the product to the consumer—can be liable for a consumer’s injuries.

There is no federal products liability law. Therefore, the laws of products liability vary from state to state. Although the United States Department of Commerce published the Model Uniform Products Liability Act (MUPLA) in 1979 to create uniform U.S. products liability law, it has not been widely adopted. The American Law Institute’s Restatement (Third) of Torts: Products Liability, for example, does not cite often to the MUPLA.

In most states, products liability claims are based on the theory of strict liability. In states where strict liability is not the theory of liability, the theory falls to negligence, or breach of warranty of fitness.

In states where strict liability is the theory of liability, manufacturers and sellers are generally liable for injuries to people caused by the goods they manufacture or sell regardless of their intent or the amount of reasonable care they exercise. To prevail in a strict liability products liability case, a plaintiff must show by the preponderance of the evidence that:

  1. They suffered physical harm to themself or their property after using or consuming the product.
  2.  The product was defective when sold by the defendant.
  3.  The defendant customarily engages in the business of distributing or selling the product.
  4.  The product’s defective condition rendered it unreasonably dangerous to the plaintiff.
  5.  The product’s defective condition was the proximate cause of the plaintiff’s injuries.
  6.  The product was not substantially changed between the time the defendant distributed or sold the product and the time the injury occurred.

A product is “unreasonably dangerous” to a consumer’s health and safety if it is dangerous beyond an ordinary consumer’s expectation or the manufacturer did not produce a less dangerous alternative that was economically feasible. Product defects can injure consumers in countless ways, but there are only three types of defects commonly recognized as giving rise to a products liability claim:

  1. Design defects, which arise when a product was designed in a flawed manner.
  2.  Manufacturing defects, which arise when there was a problem with the production of a product.
  3.  Marketing defects, which arise when a product is accompanied by instructions that are incorrect, false or fail to warn consumers of the product’s dangers.

Common Defenses to Strict Liability & Products Liability Claims

Because strict liability claims and products liability claims in strict liability jurisdictions do not rest on the intent of the defendant, intent-based defenses will be of no help. But that does not mean they are without potent defenses. In strict liability and products liability cases, defendants may be able to prevail on defenses such as:

  1. Assumption of risk, where the plaintiff knew about the risk created by the dangerous condition or product, and voluntarily assumed the risk of interacting with it, even if it was unreasonable to do so.
  2. Product misuse, where the plaintiff used a product in a way or for a purpose other than that for which it was designed, and the misuse was not foreseen by the defendant.
  3. Commonly known danger, where the plaintiff’s injury resulted from a danger that is commonly known by the public.
  4. Knowledgeable user, where the dangerous condition or product is or should be commonly known by users.
  5. Federal preemption, where a defendant who complies with federal laws and regulations when manufacturing its product cannot be liable under state products liability law that conflicts or interferes with those federal mandates.
  6. Expiration of the statute of limitations.
  7. Expiration of the statute of repose.

Additionally, a defendant in a products liability case that faces allegations of a design defect in their product may have additional defenses at their disposal through the application of two tests:

  1. Risk-utility test, where a defendant will not be liable for a design defect if there is evidence that the product’s utility when using it as designed outweighs its risk of harm; or
  2. Consumer expectation test, where a reasonable consumer would not find the product to be defective when used in a reasonably foreseeable manner.

Similar & Related, But Not Identical

As discussed, strict liability and products liability are indeed distinct legal theories—with plenty of overlap. Volumes of legal precedent exists in this area and understanding the interplay between the two theories should bring clarity to personal injury lawyers considering which to assert in a client matter.