14.3 Strict Liability & Products Liability
Key Takeaways
- Strict liability imposes liability without fault for abnormally dangerous activities, wild animals, and defective products — the plaintiff need not prove negligence
- Section 402A of the Restatement (Second) of Torts makes commercial sellers liable for products sold in a defective condition unreasonably dangerous to the user or consumer
- The three product defects are manufacturing defects (the unit deviates from the design), design defects (the whole line is unreasonably dangerous), and failure to warn (inadequate instructions or warnings)
- Design defect claims are judged by the consumer-expectation test and, in most states, the risk-utility test requiring a reasonable alternative design
- Defenses include comparative fault, assumption of risk, product misuse, the state-of-the-art defense, and federal preemption for certain regulated products
Strict liability means liability without fault: the defendant is liable for harm caused by certain activities or products even though it exercised all reasonable care. The doctrine reflects a policy choice that whoever engages in certain conduct or profits from placing products into commerce should bear the cost of the injuries that characteristically result. On the NALA Certified Paralegal (CP) exam, expect questions asking you to identify when fault is and is not an element, and to classify a product defect.
Abnormally Dangerous Activities
Under the Restatement (Second) of Torts, one who carries on an abnormally dangerous (ultrahazardous) activity is strictly liable for the harm that flows from the kind of danger that makes the activity abnormally dangerous. The Restatement weighs six factors, including whether the activity (1) creates a high degree of risk of harm, (2) involves a risk of serious harm, (3) cannot be made safe even with reasonable care, (4) is not a matter of common usage, (5) is inappropriate to the location, and (6) has limited value to the community relative to its danger. Classic examples: blasting with explosives, storing large quantities of flammable chemicals in a populated area, fumigating with toxic gas, and transporting hazardous waste. Note the limit: strict liability reaches only the harms within the abnormal risk — a blasting company is strictly liable when debris injures a neighbor, but not when its truck negligently backs into a mailbox (that is an ordinary negligence claim).
Animals
Owners of wild animals (animals ferae naturae — lions, bears, monkeys kept as pets) are strictly liable for injuries arising from the animal's dangerous propensities characteristic of its class. Owners of domestic animals (dogs, cats, horses) are strictly liable only if they know or have reason to know of the animal's dangerous propensities — the so-called one-bite rule, under which the first bite may put the owner on notice. Many states have replaced this rule with dog-bite statutes imposing strict liability for any bite regardless of prior notice. Trespassers injured by an animal kept to guard property generally cannot recover in strict liability.
Products Liability
Products liability governs injuries caused by defective products. A plaintiff may proceed on three independent theories, often pleaded together:
- Negligence — the manufacturer or seller failed to use reasonable care in design, manufacture, inspection, or warning. Privity problems once limited recovery, but MacPherson v. Buick Motor Co. (1916) eliminated the privity requirement for negligence claims against manufacturers.
- Strict products liability — under Restatement (Second) of Torts section 402A (1965), one engaged in the business of selling a product who sells it in a defective condition unreasonably dangerous to the user or consumer is liable for resulting physical harm, even though the seller exercised all possible care and the user did not buy from or contract with the seller.
- Breach of warranty — contract-based theories under the Uniform Commercial Code (UCC): express warranty (affirmations of fact or promises about the product), the implied warranty of merchantability (the product is fit for its ordinary purposes), and the implied warranty of fitness for a particular purpose (where the seller knows the buyer's specific purpose and the buyer relies on the seller's judgment).
The Three Defects
| Defect Type | Definition | Test / Example |
|---|---|---|
| Manufacturing defect | The individual unit departs from its intended design | Deviation from the manufacturer's own specifications — a soda bottle with a weak seam that explodes; strict liability applies even if the maker's quality control was superb |
| Design defect | The entire product line is unreasonably dangerous as designed | Consumer-expectation test (dangerous beyond what an ordinary consumer expects) or risk-utility test (risks outweigh utility; most states require a reasonable alternative design). Example: a saw designed without an inexpensive, feasible guard |
| Failure to warn | Inadequate warnings or instructions about non-obvious risks | No duty to warn of obvious dangers (a knife is sharp); prescription drugs invoke the learned intermediary rule — the manufacturer's duty runs to the prescribing physician, not the patient |
The Restatement (Third) of Torts: Products Liability (1998) refines the framework: manufacturing defects remain strictly evaluated, but design and warning claims are functionally negligence-like, generally requiring proof of a reasonable alternative design or a reasonable warning.
Who Is Liable, and to Whom
Strict liability attaches to commercial suppliers in the chain of distribution — manufacturers, wholesalers, distributors, and retailers — even though the retailer never touched the product's design. It does not apply to casual sellers (a neighbor's garage sale) or, traditionally, to pure service providers. The product must reach the plaintiff without substantial change from the condition in which it was sold. Bystanders injured by defective products may recover in most jurisdictions; foreseeable plaintiffs, users, and consumers are all protected.
Defenses
- Comparative fault — most states apply their comparative negligence rules to reduce strict-liability recovery when the plaintiff's own carelessness contributed.
- Assumption of risk — knowingly and voluntarily encountering a known defect is a complete or partial defense depending on the jurisdiction.
- Product misuse — no liability where the product was used for an unforeseeable purpose; foreseeable misuse (standing on a chair) does not defeat the claim.
- State of the art — evidence that the design or warning conformed to the best technology and knowledge available when the product was made; a full defense in some states, merely evidence in others.
- Federal preemption — compliance with certain federal regulatory schemes can preempt state tort claims (e.g., extensive preemption for medical devices under the Medical Device Amendments), while express preemption clauses in statutes like the National Traffic and Motor Vehicle Safety Act are read narrowly.
- Statutes of repose — some states bar product claims after a fixed period (often 10-12 years) from the date of sale, regardless of when the injury occurs.
Paralegal Scenario
A client is badly burned when a pressure cooker's lid detaches during normal use. You build the defect analysis: photographs and the retained cooker suggest the locking pin was misinstalled at the factory (manufacturing defect), while consumer complaints you gather in research suggest the pin design itself allows partial engagement that looks locked (design defect — you search recall databases and prior lawsuits for a reasonable alternative design). You draft subpoenas for the retailer's supply-chain records to name every commercial supplier, verify the cooker was never modified after sale, and check the state's statute of repose before the damages demand goes out.
Common exam traps: (1) saying strict liability means 'absolute liability' — defenses and causation still matter; (2) applying section 402A to a one-time private seller; (3) demanding a reasonable alternative design for a manufacturing defect — that requirement belongs to design claims; (4) forgetting that obvious dangers require no warning; (5) assuming the retailer escapes strict liability — commercial retailers are in the chain of distribution.
A homeowner stores fifty gallons of industrial solvent in his residential garage. A leak ignites, and the fire spreads to the neighbor's house. The homeowner used every available safety precaution. The neighbor's strongest theory of recovery is:
A prescription painkiller causes an undisclosed risk of stroke. The manufacturer knew of the risk but its label said nothing about it. An injured patient sues for failure to warn. Under the learned intermediary rule, the manufacturer's duty to warn ran to: