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Product Liability Basics

In California, product liability law has developed over time to protect consumers from defective products that enter the distribution pipeline at the manufacturer, distributor, or retailer level. A defective product that causes an injury opens up the manufacturer or seller to potential liability, allowing the injured party to recover damages. On the surface, product liability may appear not entirely dissimilar to other personal injury causes of action (the various personal injury causes of action are covered in our introductory article here), but the litigation process is often more complex, involved, and costly.

Product liability cases are traditionally quite difficult to litigate, as the resources and funds that commercial defendants have at their disposal are typically greater than the resources and funds that a product liability plaintiff will have at their disposal. In California, however, strict product liability is the law, which means that the plaintiff need not prove the defendant's negligence, making the process of litigating a product liability case somewhat less burdensome.

As the strict liability rule applies, a California plaintiff need only prove the following elements to succeed on his or her generalized product liability claim: 1) the product was distributed, manufactured, or sold by defendant; 2) the product contained a manufacturing defect, was defectively designed, did not include sufficient instructions, or failed to warn of its hazards; and 3) the defect or failure to warn of the product's hazards caused plaintiff harm.

The specific, essential elements necessary to succeed differ based on the type of products liability case being litigated.

Also worth noting, in all product liability cases involving a defective product, the plaintiff must not have been injured as a result of misuse of the product – for the plaintiff to succeed, they must have used the product the way that it was intended to be used, or, at least, the plaintiff must have used the product in a manner that was reasonably foreseeable. For example, if the manufacturer of a product knows that its product is used by consumers in a certain manner that was not intended, that manufacturer must either warn its consumers against the potential hazards of such use, or must design the product such that it can be used in that manner. Certainly, an attorney could effectively argue that those consumers using the product "wrongly" were using it in a reasonably foreseeable manner.

Were California a state in which the plaintiff had to demonstrate the defendant's negligence, the plaintiff would have to go through the extra step of proving that the manufacturer, distributor, or seller was negligent in their design, manufacture, supply, installation, inspection, repair, etc. of the product such that the defect was borne out of their negligence, or continued to exist thanks to their negligence.

Manufacturing Defect

According to California Civil Jury Instruction (CACI) 1202, there is a manufacturing defect issue if the product that injured the plaintiff is different from the manufacturer's typical units in the same product line. This difference can be a difference in design, specifications, or even basic structure (such as materials or shape). As the court in Jiminez v. Sears, Roebuck & Co. (1971) wrote, "a defective product is viewed as one which fails to match the quality of most like products, and the manufacturer is then liable for injuries resulting from deviations from the norm."

The elements that the plaintiff must prove to succeed at trial are similar to those of a generalized product liability claim, with the addition of a requirement that plaintiff show that the product contained a manufacturing defect when it left the defendant's possession. In other words, the defendant cannot be held liable if the defect-at-issue was created after the product was beyond the defendant's control.

Imagine that a buyer purchases a blender at a retail outlet. The buyer is cleaning out the blender, when it turns on by itself, injuring his hand. Suppose the buyer did not misuse the blender when cleaning it. He'd taken all safety precautions, shut off the blender and unplugged it from power, but a manufacturing defect allowing the blender to hold a latent charge caused the spontaneous reaction at-issue. The buyer could succeed in a suit against the manufacturer of the blender if the buyer could prove that the product was defective before it left the manufacturer's control. If the product defect was created by the distributor or retailer (perhaps the retailer modifies or otherwise customizes their blenders), then the buyer would have to sue the person or entity who controlled the product when the defect was created.

Design Defect

Design defects are often simpler to identify than manufacturing defects, as the defect-at-issue will be common to the line of products rather than the singular product sold to the buyer-plaintiff.

In the manufacturing defect example above, the blender containing the charge is unique among other blenders in the same product line. The buyer has to show that their blender was uniquely defective, which is somewhat tricky. In a design defect case involving a blender which retains a charge (thus subjecting users to risk of injury from the blender spontaneously turning on), the buyer would assert that all blenders from the same product line are plagued by the retained charge issue, and that this issue was caused by defective design.

Courts apply one of two major tests in design defect cases (though the plaintiff can assert both tests in the alternative, so that the court will consider both). These two tests are the consumer expectations test and the risk-benefit test.

Consumer Expectations Test

The consumer expectations test requires that a product safely perform for its intended purpose – in other words, it must perform as safely as an ordinary consumer would expect it to perform under the circumstances. The standard for the consumer expectations test is one of minimum reasonable safety. As the court in Pannu v. Land Rover North America, Inc. (2011) eloquently wrote, "the critical question […] is whether the product, in the context of the facts and circumstances of its failure, is one about which the ordinary consumers can form minimum safety expectations."

Risk-Benefit Test

The risk-benefit test requires – if the plaintiff has shown that defendant defective design substantially caused plaintiff's injuries – that the plaintiff win unless the defendant can further demonstrate that the benefits of the design outweigh its risks. This is a somewhat subjective argument, and as such, your attorney must be skilled and knowledgeable in the area of product liability law to effectively argue in your favor. The factors that are useful in determining the balance of risk-benefits include the risk of harm from use of the product, the seriousness of the potential harm, the financial, mechanical, and design feasibility of a safer alternative, and the various disadvantages of said alternative.

For example, suppose a driver is injured in a rear-end accident, through no fault of his own. The accident causes the driver severe neck injuries. The impact caused the bumper to crush too easily, thus minimizing the expected safety benefit of the bumper absorbing the force of impact. The driver-plaintiff sues the car company, arguing that, had the bumper design used a different, slightly more expensive material, then the bumper would have absorbed the force of impact and protected him from injury. The car company will argue that the costs would have been too high, that the bumper alternative design would not have prevented the driver's injuries, and that the alternative design would present new disadvantages. The driver-plaintiff will want to argue, on the other hand, that the alternative bumper would have been cost-effective, highly protective, and would have few disadvantages. In such a case, numerous experts are usually brought in to argue each side, which can make the cost of litigation prohibitively high.

Failure to Warn

A failure to warn claim is quite different in structure than either design or manufacturing defect claims. Under the law, defendants must sufficiently warn of potential hazards to consumers who use their products in a reasonably foreseeable manner.

Importantly, defendants need only warn of hazards that an ordinary consumer would not have recognized on their own.

Also worth noting, manufacturers are held to the knowledge and skill level of an expert in their field or industry. As such, the manufacturer is expected to apprise themselves of hazards that the average knowledgeable, skillful expert in their field/industry would have been aware of, and to correspondingly warn consumers as to such hazards. The lack of knowledge will shield the manufacturer from liability for failure to warn, of course, but only so long as the lack of knowledge was reasonable. Similarly, the court in Anderson v. Owens-Corning Fiberglas Corp. (1991) found that knowledge is a requirement for liability under a failure to warn cause of action.

Defendants are not liable for injuries that would have occurred even if adequate warnings had been given to the plaintiff (though the defendant may be liable if the injuries occurred as a result of design/manufacturing defects).