Negligence, or lack of due care, is the second theory raised in the typical products-liability case. It is a tort theory, as compared to breach of warranty, which is a contract theory.
Negligence theory also has a distinct advantage over warranty theory: Privity of contract is never relevant. Privity is a direct connection between the consumer and the manufacturer required for a contracts claim.
EXAMPLESay a pedestrian is struck in an intersection by a car whose brakes were defectively manufactured. Under no circumstances would breach of warranty be a useful cause of action for the pedestrian— there is no privity at all.
Negligence theory in products liability is most useful in two types of cases:
1a. Design Defects
Manufacturers can be, and often are, held liable for injuries caused by products that have defective design. The question is whether the designer used reasonable care in designing a product reasonably safe for its foreseeable use. The concern over reasonableness and standards of care are elements of negligence theory.
Defective design cases can pose severe problems for manufacturing and safety engineers. More safety means more cost. Designs altered to improve safety may impair functionality and make the product less desirable to consumers.
At what point safety comes into reasonable balance with performance, cost, and desirability is impossible to forecast accurately, though some factors can be taken into account.
EXAMPLEIf other manufacturers are marketing comparable products whose designs are intrinsically safer, the less-safe products are likely to lose a test of reasonableness in court.
1b. Warning Defects
Defective warnings can occur when the manufacturer failed to warn the user of potential dangers. Whether a warning should have been affixed is often a question of what is reasonably foreseeable, and the failure to affix a warning will be treated as negligence.
EXAMPLEThe manufacturer of a weed killer with poisonous ingredients is certainly acting negligently when it fails to warn the consumer that the contents are potentially lethal.
The law governing the necessity to warn and the adequacy of warnings is complex. What is reasonable turns on the degree to which a product is likely to be misused and whether the hazard is obvious.
Negligence is an ancient cause of action and, as was discussed in the lessons on torts, it carries with it a number of well-developed defenses.
Two categories may be mentioned:
2a. Common Law Defenses Against Negligence
Among the problems confronting a plaintiff with a claim of negligence in products-liability suits are the following:
Preemption is illustrated by the following problem.
Suppose there is a federal standard concerning the product, and the defendant manufacturer meets it, but the standard is not really very protective. Is it enough for the manufacturer to point to its satisfaction of the standard so that such satisfaction preempts (takes over) any common-law negligence claim?
Preemption is typically raised as a defense in suits about:
This is a complex area of law. Questions inevitably arise as to whether there was federal preemption, express or implied. Sometimes courts find preemption and the consumer loses; sometimes the courts don’t find preemption and the case goes forward.
Increasingly, the usual defendants (manufacturers) have pushed Congress and the regulatory agencies to state explicitly in the law that the federal standards preempt and defeat state law.
Source: This content has been adapted from Lumen Learning's "Negligence Claims" tutorial.