Strict liability and products liability - Claims against manufacturers and other defendants arising out of the manufacture and distribution of products

Learning Outcomes

After reading this article, you will understand the rules of strict liability and products liability as tested on the MBE. You will be able to identify when strict liability applies to manufacturers and sellers, distinguish between manufacturing and design defects, determine who can be sued, and recognize the main defenses. You will also be able to apply these principles to MBE-style questions.

MBE Syllabus

For the MBE, you are required to understand the principles governing strict liability and products liability claims against manufacturers and other defendants in the chain of distribution. This includes:

  • Recognizing when strict liability applies to the sale or distribution of defective products.
  • Distinguishing between manufacturing defects, design defects, and failure to warn.
  • Identifying who may be held strictly liable (manufacturers, wholesalers, retailers, lessors).
  • Understanding who can sue (users, consumers, bystanders).
  • Applying the rules for commercial suppliers versus casual sellers.
  • Knowing the main defenses to strict products liability, including assumption of risk and comparative fault.
  • Understanding the difference between strict liability, negligence, and warranty theories in product cases.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which of the following is NOT required to establish strict products liability?
    1. The defendant is a commercial supplier.
    2. The product was defective when it left the defendant’s control.
    3. The defendant was negligent in designing the product.
    4. The defect caused the plaintiff’s injury.
  2. A consumer is injured by a blender that explodes due to a manufacturing defect. The blender was sold by a retailer who did not inspect it. Can the consumer recover from the retailer under strict liability?
    1. Yes, because the retailer is a commercial supplier.
    2. No, because the retailer was not negligent.
    3. No, because the consumer did not buy directly from the manufacturer.
    4. Yes, but only if the retailer made express warranties.
  3. Which of the following is a valid defense to a strict products liability claim?
    1. The plaintiff misused the product in a foreseeable way.
    2. The plaintiff assumed the risk of the defect.
    3. The product complied with all government safety standards.
    4. The defendant was not in privity with the plaintiff.

Introduction

Strict liability and products liability are key areas of tort law tested on the MBE. These doctrines allow plaintiffs to recover for injuries caused by defective products without proving negligence. Instead, liability is imposed on manufacturers and other commercial suppliers who place defective products into the stream of commerce. Understanding when strict liability applies, who can be sued, and the main defenses is essential for MBE success.

Types of Product Defects

Strict products liability applies when a product is defective. There are three main types of defects:

  1. Manufacturing Defect: The product departs from its intended design, making it more dangerous than expected.
  2. Design Defect: The product is manufactured as intended, but the design itself is unreasonably dangerous.
  3. Failure to Warn: The product lacks adequate instructions or warnings about non-obvious dangers.

Key Term: Strict Liability
Liability imposed without proof of fault, usually for abnormally dangerous activities or defective products placed into commerce by commercial suppliers.

Key Term: Products Liability
Legal responsibility of manufacturers and sellers for injuries caused by defective products, often based on strict liability, negligence, or warranty.

Key Term: Manufacturing Defect
A flaw in a product that occurs during production, making it more dangerous than intended.

Key Term: Design Defect
A flaw in the product’s design that makes every unit of the product unreasonably dangerous, even if made as intended.

Key Term: Failure to Warn
The absence of adequate instructions or warnings about a product’s non-obvious risks, rendering the product defective.

Who Can Be Held Strictly Liable?

Strict liability applies only to commercial suppliers—those who regularly sell or lease products (manufacturers, wholesalers, retailers, and commercial lessors). Casual sellers (e.g., someone selling a used item at a garage sale) are not strictly liable.

Key Term: Commercial Supplier
A business entity that regularly sells or leases products as part of its trade, subject to strict products liability.

Who Can Sue?

Anyone foreseeably injured by a defective product can sue under strict liability, including:

  • The purchaser (even if not in privity with the defendant).
  • Users and consumers.
  • Foreseeable bystanders.

Privity of contract is not required.

Elements of Strict Products Liability

To establish strict products liability, the plaintiff must prove:

  1. The defendant is a commercial supplier.
  2. The product was defective (manufacturing, design, or warning).
  3. The defect existed when the product left the defendant’s control.
  4. The defect caused the plaintiff’s injury when the product was used in a foreseeable way.
  5. The plaintiff suffered personal injury or property damage (pure economic loss is not recoverable under strict liability).

Worked Example 1.1

A consumer buys a toaster from a retailer. The toaster explodes due to a manufacturing defect, causing burns. The consumer sues the retailer under strict liability. Is the retailer liable?

Answer: Yes. The retailer is a commercial supplier in the chain of distribution. Strict liability applies even if the retailer was not negligent and did not inspect the toaster.

Defenses to Strict Products Liability

The main defenses are:

  • Assumption of Risk: If the plaintiff knew of the defect and voluntarily used the product anyway, recovery may be barred or reduced.
  • Comparative Fault: In most jurisdictions, the plaintiff’s own negligence will reduce recovery, but will not bar it completely.
  • Product Misuse: If the plaintiff used the product in an unforeseeable and unintended way, and this misuse caused the injury, the defendant may not be liable.
  • Substantial Change: If the product was substantially altered after leaving the defendant’s control, strict liability may not apply.

Compliance with government standards is evidence that the product is not defective, but it is not a complete defense unless federal law preempts state law.

Worked Example 1.2

A worker removes a safety guard from a saw and is injured. The manufacturer is sued for strict liability. Is the manufacturer liable?

Answer: No, if the removal of the guard was not foreseeable. If the manufacturer could not reasonably anticipate that users would remove the guard, and the injury resulted from this unforeseeable misuse, strict liability does not apply.

Exam Warning

On the MBE, strict liability applies only to commercial suppliers. Do not hold a casual seller strictly liable for a defective product.

Comparison with Negligence and Warranty

Strict products liability is different from negligence and warranty claims:

  • Negligence: The plaintiff must prove the defendant failed to use reasonable care in designing, manufacturing, or warning about the product.
  • Warranty: Liability may arise from breach of express or implied warranties (merchantability or fitness for a particular purpose).

Strict liability is favored on the MBE because it does not require proof of fault.

Who Is Not Strictly Liable?

  • Casual Sellers: Individuals selling used goods outside the course of business.
  • Service Providers: Those who provide services rather than products (e.g., doctors, lawyers).
  • Used Goods Sellers: Unless they rebuild or recondition the product as part of their business.

Worked Example 1.3

A person sells a used bicycle at a yard sale. The brakes fail due to a hidden defect, injuring the buyer. Is the seller strictly liable?

Answer: No. The seller is not a commercial supplier. Strict liability does not apply to casual sales.

Key Point Checklist

This article has covered the following key knowledge points:

  • Strict products liability applies to commercial suppliers for defective products.
  • Three types of defects: manufacturing, design, and failure to warn.
  • Privity is not required; any foreseeable user, consumer, or bystander can sue.
  • Defenses include assumption of risk, comparative fault, product misuse, and substantial change.
  • Strict liability does not apply to casual sellers or service providers.
  • Negligence and warranty theories are alternatives but require proof of fault or breach.

Key Terms and Concepts

  • Strict Liability
  • Products Liability
  • Manufacturing Defect
  • Design Defect
  • Failure to Warn
  • Commercial Supplier
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