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How do manufacturers of products that necessarily imply risk deal with liability?

  • Are they only liable if the product malfunctions in an unexpected and unpredictable way (e.g., the board breaks)?
  • Does liability only apply when a product injures a user, but not when the users injures themselves using a product where harm cannot be excluded?
  • Can they absolve themselves of liability by simply warning the user about risks?
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    Do you mean that skateboards in general are unsafe, or a skateboard company designed their skateboards incorrectly, so they're less safe than normal skateboards?
    – Barmar
    May 19, 2023 at 14:48
  • @Barmar: I mean the first. No matter how much care you take, you are taking risk. The applies to other extreme sports as well. I even would say that that's part of the emotion. May 19, 2023 at 16:31
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    It should be clear that that can't be a liability. Even careful drivers get into accidents, so car manufacturers would be liable.
    – Barmar
    May 19, 2023 at 16:34
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    "By design" implies intent. From an engineering POV there is no product that is unsafe by design. That would be a scam and/or a terrorist act. There are products that are unsafe because of design errors. And there are products that are unsafe in the wrong hands. Even explosive devices and materials are safe if handled by an expert with the right training. And even a plastic shopping bag can be unsafe in the hand of a toddler. Of course there are different level of danger and different kinds of risk depending on the specific product. May 19, 2023 at 22:07

4 Answers 4

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Theories Of Product Liability In Tort

There are three basic theories of product liability in tort (setting aside breach of warranty claims) under state law in most U.S. states.

  1. Defective manufacturing. In this theory, there was a flaw in making the product that caused it not to conform to an otherwise good design, causing harm to the claimant.

    For example, if a fire alarm is designed to have a trigger that actives at a certain temperature, but the noise maker in the alarm melts and becomes inoperative at a temperature below the trigger temperature because the manufacturer uses plastic instead of the design requirement of metal for a part because of a temporary shortage of that metal, the manufacturer is liable for harm that results from the fire alarm's failure to activate at the trigger temperature.

  2. Defective design. In this theory, there was a flaw in the design of the product and that flaw caused harm to the claim and would have done so even if the product was perfectly manufactured consistently with the design.

    What constitutes a defective design?

    A company's liability for a design defect occurs when there was a foreseeable risk posed by the product when the product was manufactured as intended and used for its intended purposes.

    In many states, plaintiffs also have to show that the risk could have been reduced or avoided by the adoption of a reasonable alternative design, which was:

    Feasible, in other words, the manufacturer had the ability to produce it; Economically feasible, in other words, it would not cost too much to make the product with the modification; and

    Not in opposition to the product's intended purpose, in other words, the product would still perform the function for which it was created.

    (Source)

    For example, if a whiskey distilling vat generates high internal pressures that could cause it to explode if not alleviated, and the manufacturer does not include a pressure release valve in the design to prevent that explosion, the manufacturer would be liable for the harm caused by an explosion that occurs because there is not a pressure release valve in the design making it defective.

    Also, failure to comply with a regulatory standard intended to enhance safety in a design when that non-compliance causes harm (e.g. designing a car without seat belts), may be a design defect as a matter of law. Likewise, failure to comply with widely recognized non-legally adopted design standards in an industry intended to enhance safety in designs of particular kinds of products, when that non-compliance causes harm, will usually constitute open and shut proof of a design defect without further proof or analysis.

  3. Failure to warn. In this theory, the design of the product presents risks of harm to the user that are not obvious, which would be mitigated or eliminated if the user was given an adequate warming of the risk and followed that warning.

    For example, while the risk of harm from a knife is obvious and does not trigger a duty to warn, if a knife is made from a material that creates a toxic cloud of chlorine gas when exposed to bleach, the maker of a knife with this non-obvious risk needs to adequately warn potential users of the knife of the importance of not exposing it to bleach or the maker of the knife will have liability for bleach related harms to users that occur.

Observations

Product liability in tort is "strict" in the sense that there can be liability even if the manufacturer was not negligent.

For example, in a defective manufacturing case, even if the manufacturer had the best quality control system in the world, if one item in a billion is defectively manufactured and causes harm as a result, the manufacturer is still liable.

Similarly, in a defective design case, it is not a defense that a reasonable product designer took reasonable care to identify defects (e.g. holding brain storming sessions and reading any relevant studies) that didn't actually reveal the potential problem, if the design defect was foreseeable but the designer just didn't think of it anyway.

And, in a failure to warn case, there can be liability even if the manufacturer was "reasonable" in the sense of providing the warnings customarily used by others in the industry but still fails to warn of a non-obvious risk that causes harm.

Application

Are they only liable if the product malfunctions in an unexpected and unpredictable way (e.g., the board breaks)?

Not exactly. But if the product is causes harm while carrying out its intended purpose, that isn't a malfunction or defect. A gun isn't defective because it can be used to intentionally kill someone or commit suicide.

Does liability only apply when a product injures a user, but not when the users injures themselves using a product where harm cannot be excluded?

There is not liability if the user is not injured. If the user injures themselves using the product for the intended purpose this is also not a product liability issue unless the harm could have been avoided with a design change or warning of a non-obvious risk.

Can they absolve themselves of liability by simply warning the user about risks?

If a product has a design defect, merely warning a user of the design defect will usually not relieve the manufacturer from liability.

For example, stating that the whiskey vat doesn't have a pressure relief valve and could explode, when it could have been designed with them with a $2 manufacturing cost change, won't relieve the manufacturer from liability if someone is harmed by the vat exploding because it doesn't have a pressure relief valve.

In reality, there are gray areas where an alleged design defect that can be fully mitigated with a warning is really a design defect, but that's why we have judges, juries, and expert witnesses to resolve close cases where there are arguments to be made either way.

A skateboard does have risks even when used for its intended purpose, most of which are obvious, but some of which (e.g. getting clothing entangled in a wheel) might not be. When there is no feasible way to eliminate the risks that are present, and warnings are provided when there are non-obvious risks, then there is no liability on the part of the manufacturer of the skateboard.

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Assumption of Risk

In the USA, an obvious risk can absolve the seller of liability. Otherwise, no one could sell a knife, for example, or an automobile. Today, this is often part of a process that allows obviously dangerous items to diminish but not necessarily completely remove the ability to sue for damages.

This doesn't mean that manufacturers aren't responsible for removing risk from even dangerous items. You can thank this for the blade stop on your lawn mower. Now if you try to trim your hedges with your lawn mower & cut off your leg doing it, the manufacturer can argue that you had to defeat a safety device to do so.

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    YMMV on what constitutes an obvious risk. stromlaw.com/exploding-gas-can-manufacturer-closes-its-doors - USA largest Jerry Can manufacturer went bankrupt — "The company states a majority of the lawsuits resulted from people suffering burns from pouring gasoline on a fire [...] they feel they have taken adequate precautions by posting the dangers of having gasoline around a fire on the gas can" — I would assume a reasonable person would know not to pour gasoline over an open flame, and yet... May 19, 2023 at 14:05
  • @MindwinRememberMonica Sometimes the jury feels bad for the innocent old lady who got seriously injured even though the produce was not defective and no warning would have helped. It doesn't take all that much to get past a judge to a jury who will give the poor injured old lady what the company makes in one day, whether or not that makes legal sense. Many see the justice system as a way to right wrongs even if the wrongs aren't anyone's fault and outside the bounds in which strict liability is supposed to apply. May 21, 2023 at 19:24
  • @DavidSchwartz are you talking about that "One crazy secret about Jury powers that judges don't want people to know?" The one best exemplified in the tale "Daniel Webster and the Devil?" Click here to find out more (no link though). Jun 5, 2023 at 11:57
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Product Liability is covered by Produkthaftungsgesetz (Gesetz über die Haftung für fehlerhafte Produkte).

As you can see from the German title, it's laws about liability for defective products. But you don't have to take the title, the very first sentence reads (emphasis mine):

In such case as a defect in a product causes...

So, what exactly is "a defect"?

A product has a defect when it does not provide the safety which one is entitled to expect, taking all circumstances into account, in particular

  • its presentation,

  • the use to which it could reasonably be expected that it would be put,

  • the time when it was put into circulation.

So let's check your questions:

Are they only liable if the product malfunctions in an unexpected and unpredictable way (e.g., the board breaks)?

It doesn't need to be unexpected or unpredictable. "malfunctions" does the heavy lifting here. If all the company's skateboards explode on the third ride, that would be totally predictable, but still "defective".

Does liability only apply when a product injures a user, but not when the users injures themselves using a product where harm cannot be excluded?

The defective product has to cause the injury. If you fall off a skateboard and injure yourself, that does not trigger any liability, if the skateboard was not defective.

Can they absolve themselves of liability by simply warning the user about risks?

They cannot absolve themselves. A defective product is defective, you cannot put a sticker on the box that says "might be defective" and get out of liability. But you are required to explain the normal use and protect against misuse that is to be epected by normal users, because it might be considered a defect if you don't.

Example for a court decision: OLG Düsseldorf, 07.10.2016 - I-22 U 71/16.

Translated first paragraph:

The duty to instruct obliges the manufacturer of a product within the scope of § 3 (1) ProdHaftG to warn of those dangers which are imminent in the case of intended use or obvious misuse and which are not part of the general knowledge of dangers of the circle of users, whereby the requirements in detail depend on the endangered legal interests and the magnitude of the danger. A circumstance to be taken into account when assessing obligations arising from the ProdHaftG are the dangers associated with a product, which are already inherent in the nature of the thing or are generally known or obvious. The limit of the duty to instruct is reached when - according to the objective circumstances - the consumer handles the product or the instructions attached to it carelessly.

So to summarize, it depends very much on the product, it's instructions, it's normal users and their education level. But generally speaking, liabity is about defects, not risks. A risk is something the user takes knowingly (like using a skateboard) while a defect is something that happens unexpectedly for the user and is the producers fault (the wheels coming off).

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  • §3 ProdHaftG looks very similar to the French article 1245-3 of the civil code (see my answer). There’s probably some EU standardization regulation behind all this. Possibly directive 2001/95/EC, article 2(b) (from 2001).
    – KFK
    May 22, 2023 at 15:37
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There’s a statute for that: article 1245-3 of the civil code

Un produit est défectueux au sens du présent chapitre lorsqu'il n'offre pas la sécurité à laquelle on peut légitimement s'attendre.

Dans l'appréciation de la sécurité à laquelle on peut légitimement s'attendre, il doit être tenu compte de toutes les circonstances et notamment de la présentation du produit, de l'usage qui peut en être raisonnablement attendu et du moment de sa mise en circulation.

A product is faulty for the purposes of the present chapter [i.e. the manufacturer is civilly liable for the damage it causes] when it does not offer a reasonably-expected level of safety.

The reasonably-expected level of safety takes into consideration all circumstances, in particular how the product is presented to the public, what use can reasonably be made of it, and when it was first introduced to the public.

Therefore:

Are they only liable if the product malfunctions in an unexpected and unpredictable way (e.g., the board breaks)?

Yes. A reasonable person knows that skateboarding is a somewhat-dangerous activity, and if they injure themselves in a way that cannot be clearly attributed to a defect in that specific board, that’s assumed liability.

Does liability only apply when a product injures a user, but not when the users injures themselves using a product where harm cannot be excluded?

No.

Let’s say a skateboard manufacturer uses (against common industry practice) wheels designed for strollers, and a user of that skateboard injures themselves when they land from a height and the wheels break. The manufacturer is likely to be liable, because it is expected that a skateboard will be used at high speed, with high mechanical stress, falling off from great heights, etc. A well-designed skateboard might break from time to time, but this one did not offer a reasonable level of safety.

Can they absolve themselves of liability by simply warning the user about risks?

Sort-of yes.

Some products (electrical equipment, airplane parts, chemicals, etc.) have a very high likelihood of injuring anyone attempting to use them without proper training and knowledge. It is still legal to sell them, possibly subject to specific additional regulation (electric code etc.).

It is hedged by the "reasonable use" clause. An arc welding station is reasonably expected to be dangerous, and its user could be expected to read through the documentation before using it. On the other hand, a folding carton should be usable without extensive training. If the carton explodes after being left open for ten seconds (*), that’s not reasonably expected, even if the carton comes with an instruction manual that prominently describes that behavior.

(*) Example taken from Umberto Eco's How to Travel with a Salmon satirizing instructions for computer use.

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