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  • Product Defects in Strict Products Liability

Product Defects in Strict Products Liability

For a plaintiff to prevail in a strict products liability action, they must show the product in question had a defect. A defect is a condition of a product that makes it unreasonably dangerous. The level of danger is considered unreasonable if it is not outweighed by the product's utility, using the reasonable person standard. When a product is "dangerous to an extent beyond that contemplated by the ordinary consumer who purchases it," it is unreasonably dangerous [1].

To prove the existence of a product defect, the plaintiff must also show that the product was not suitable for its intended or foreseeable uses. Strict products liability does not apply to uses of a product that are unintended and unforeseeable.

Manufacturers of some inherently unsafe products are protected from strict liability when it's a product intended for consumption, with an unsafe nature that's generally known to the public. For example, alcohol, tobacco, butter and sugar.


There are three categories of product defects: manufacturing, design, and marketing. Each defect category has its own standard for determining whether a product is unreasonably dangerous to a consumer.

  • Manufacturing Defect

    A product with a manufacturing defect is one that is unreasonably dangerous because it fails to meet the manufacturer's planned specifications or level of quality. A plaintiff must prove that a flaw existed, and that this flaw rendered the product unreasonably dangerous. A flaw can be caused unintentionally by either a mistake or malfunction in the manufacturing process, or use of subpar supplies. The theory is based on the idea that consumers should not have to anticipate that a single unit of a mass-produced product will differ from the other units in a dangerous manner [2].

  • Design Defect

    A product with a design defect is one that meets the manufacturer's specifications, but is unreasonably dangerous because of its design. Every unit of the product will be defective. However, a dangerous product is not considered defective if it is useful and could not have been designed in a safer way. For example, the 1997 Texas Supreme Court case American Tobacco Co. v. Grinnell, in which the Court found cigarettes, though dangerous, were not defective in design because there was no safer design alternative [3].

    Two test must be satisfied to prove a design defect: the safer alternative design test and the risk-utility test. To prove the existence of a safer alternative design, the Texas statute requires a plaintiff to show another design that [4]:

    1. would have prevented or significantly reduced the risk of the claimant's personal injury, property damage, or death without substantially impairing the product's utility; and
    2. was economically and technologically feasible at the time the product left the control of the manufacturer or seller by the application of existing or reasonably achievable scientific knowledge.

    To qualify as a safer alternative design, an alternative must be significantly safer than the design used, but it does not need to be perfectly safe. It is not necessary that the alternative design is actually built or in use. Expert testimony is sufficient to show that the proposed alternative was available and safer than the design used. The proposed alternative design must also be financially and technologically doable. In the 1995 Texas Supreme Court case Caterpillar Inc. v. Shears, an worker who was injured using an adjustable loader to handle ship cargo presented evidence of a safer option using multiple different sized loaders to remove cargo from various ship decks [5]. The Court determined this was not a safer alternative design compared to an adjustable loader, because of the increased cost in buying multiple machines. It is not necessary to sacrifice utility for safety. To support their argument, either party may present “state of the art” evidence of what designs were available at the time.

    The risk versus utility test is a balancing test that weighs factors relating to risk, utility, and consumer expectations. For example: usefulness versus likelihood of injury, the consumer's expectations and awareness of inherent dangers, the existence of a reasonable alternative design, and the difficulty involved in making the product safer without compromising its utility. It is important to remember that these are factors to be weighed and not individual requirements, although a safer alternative design is required to satisfy the other test. Texas does not allow the common-knowledge defense.

  • Marketing Defect

    A product has a marketing defect when the manufacturer fails to include appropriate instructions or warnings, thereby rendering the product unreasonably dangerous. Even a product that has a safe design and was properly manufactured can be unreasonably dangerous because of a lack of an adequate warning. The manufacturer of a product has a duty to warn users of any foreseeable dangers, so that consumers can make informed decisions. To prevail in a marketing defect case, the plaintiff must prove the following 5 points [6]:

    1. a risk of harm that is inherent in the product or that may arise from the intended or reasonably anticipated use of the product must exist;
    2. the product supplier must actually know or reasonably foresee the risk of harm at the time the product is marketed;
    3. the product must possess a marketing defect;
    4. the absence of the warning and/or instructions must render the product unreasonably dangerous to the ultimate user or consumer of the product; and
    5. the failure to warn and/or instruct must constitute a causative nexus in the product user's injury.

    Although “duty” is usually associated with negligence cases, strict product liability considers the manufacturer's “duty to warn” in marketing defect cases. When a product is potentially harmful, even to only a small number of people, manufacturers have a duty to provide adequate instructions and warnings. However, under strict products liability there is no duty to warn regarding dangers that are common knowledge or obvious to consumers. For example, products like tobacco and alcohol, which are considered inherently unsafe.

    Manufacturers only have a duty to warn of dangers that are foreseeable to them. Manufacturers are legally considered experts in their field, and experts are assumed to have a certain level of knowledge about their products. This includes any scientific advancements in the field, and any risk information known to other manufacturers of similar products have. Each manufacturer also has a duty to inspect its own products and test them for dangers. Manufacturers are not only liable for its products in their intended use, but also in other foreseeable uses. To prove foreseeability of a risk, plaintiffs can present evidence of similar complaints or incidents, recalls, government standards, and testimony regarding available risk information [7].

    An adequate warning must grab the attention of the user and clearly convey any risks and how to avoid them. Some products only require warnings in their user manuals, but for others, manufacturers need to place warning labels directly on the products to sufficiently grab the user's attention. Instructions are different from warnings and the two are not legally interchangeable. Warning labels also need to specifically state the risks involved, it is not enough to merely warn of a general danger. They also must be specific as to the intensity and gravity of the risk. Warning labels should also be tailored to the expected user of the product. Whereas a product only used by experts may not need a warning at all, a product used by the general public will need a warning comprehensible to the general public.

    Manufacturers have a responsibility to provide warnings that will reach the ultimate users, as well as anyone who might be exposed to risks while handling or repairing the product. Only in specific circumstances, manufacturers may use intermediaries to convey warnings to ultimate users. The learned intermediary doctrine specifically refers to physicians, who are responsible for relaying risks to their patients and relieve the manufacturer of this direct responsibility.

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