Products Liability
Historically, liability for injuries caused by defectively designed or constructed products,
or products for which there were inadequate warnings of dangers, was determined by the same negligence principles as CE malpractice discussed above. An injured person had to prove that the manufacturer did not follow the appropriate standard of care in designing or building the product and that the injury was caused by this failure to follow the appropriate standard of care. More difficult, the plaintiff would have to show that he was in “privity” with the manufacturer, which usually meant that he had purchased the product from the manufacturer. These rules dated from before the industrial revolution and anticipated that individuals would purchase products directly from the artisans who build them. In an industrial society where products flow through many layers of distribution, the requirement of privity made it impossible to sue the manufacturer for most product-related injuries. Driven by the then-new phenomenon of automobile accidents due to poorly manufactured cars, courts abolished the privity rule in the early 20th century so that injured persons could sue the car manufacturer as well as the dealer where they purchased the car. Courts then extended the right to sue to nonpurchasers who were injured by defective products,
such as passengers in cars, or cars driven by persons other than the purchaser. Abolishing privity helped persons who had been injured by products such as cars that pass through the distribution chain with little change or risk of hidden damage by others before sale. Cheaper, more easily damaged consumer products still left the plaintiff with the problem of proving that the defect causing the injury was caused by the manufacturer and not by subsequent mishandling. The classic example is injuries caused by exploding Coke bottles. Old-style Coke bottles were made of heavy glass so that they could be recycled and refilled. (Older readers might remember checking bottles for place of origin and being amazed at how far bottles traveled in their lifetime; some might even recall finding roach carcasses lodged in the bottom of the recycled bottles.) While this practice was environmentally friendly, it increased the risk of an undetected defect in the glass, and the thickness of the glass made it particularly dangerous when it exploded under the pressure of the carbonated liquid. This combination led to many serious hand and eye injuries. Plaintiffs then would sue the local Coca-Cola bottler and distributor, arguing that bottles broke in normal use because of either a defect in the glass or over-carbonation,
another common problem. The manufacturer would deny responsibility, arguing that the defect was caused by mishandling by the delivery truck, the grocery stockers, the bar owners, or others who served as an intermediary between the customer and the manufacturer,
or by the plaintiff himself. Because the manufacturer’s duty was to produce a bottle that met the industry’s standard of care, which it did, the plaintiff could not argue that bottles should be designed so that they were safe to use, even if mishandled. The courts first attacked this problem with an old doctrine called res ipsa loquitur. Roughly translated, this means “the thing speaks for itself.” It originated in a case where a barrel of flour rolled out of a second-floor warehouse loading door and fell on a bystander. The warehouse owner argued that the victim had to show why the barrel had rolled out of the window, to prove that the owner was negligent. The court ruled that plaintiff did not have to prove a specific negligent action if plaintiff could show that the thing causing the injury was in the defendants’ exclusive control and that such accidents generally did not occur in the absence of negligence. Thus if the jury believed that the defendants must have been negligent if a barrel had rolled out of the warehouse, then the burden would shift to the defendants to provide an explanation for the accident, wherein they were not negligent. As applied to the Coke bottle cases, the plaintiff did not have to prove a specific defect in the exploding bottle. Unfortunately, subsequent mishandling still was a defense, and the plaintiff would have to show that the defect had occurred while the bottle was under the control of the defendant. The more intermediaries between the injured customer and the bottler, the more difficult is was to rule out subsequent mishandling. This fact made these cases very difficult to prove and left the manufacturer free to keep using a dangerous design as long as it met the standards of the industry. Economists and legal scholars argued that this was inefficient in that it did not provide an appropriate incentive to reduce injuries by building safer products. This led courts and legislatures to turn to another old doctrine—strict liability.