Products/Strict Liability



Products Liability is the area of law that recognizes the existence of a possible cause of action for individuals who are harmed by unsafe or defective products. Since the 19th century, Products Liability law has evolved such that concepts of privity and caveat emptor are no longer barriers to recovery. Without these protections, plaintiffs in products liability suits may be entitled to recover from any party in the chain of manufacture. Recovery in products liability suits fall within one of three broad categories of liability:

Design Defects. A Plaintiff is only entitled to recover on a theory of design defect if he or she can show that the defect in the product exists inherently in the way that it is designed. The Restatement (3rd) of Torts states that a product “is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.”

Manufacturing Defects. A Plaintiff may be entitled to recovery on a theory of manufacturing defect is he or she can show that the product differs from its intended design and that this difference is a producing cause of the Plaintiff’s Injuries. One way to distinguish between design and manufacturing defects is to ask whether the condition of the product that caused the injury was intended or unintentional. Unintentional conditions are more likely to fall in to the area of manufacturing defects.

Inadequate Warnings & Instructions. In additional to manufacturing and design defects, a Plaintiff may bring a cause of action based on a theory of inadequate warnings or instructions. The duty to warn is typically required when the supplied product is dangerous, the danger is or should be known by the manufacturer, the danger is present when used in the usual or expected manner, and the danger is not obvious or well-known to the user. It is usually left to the trier-of-fact to determine what constitutes an adequate warning.

It should also be noted that, in general, a manufacturer cannot simply “warn away liability.” In engineering, this concept is outlined in the hierarchy of safety, which states that a risk should be addressed first the design stages of the engineering process, then through guarding and barriers,and lastly by providing adequate warnings and training. Therefore, a product designer cannot escape liability by warning of a defect in its product’s design.


Manufacturer’s protections from strict liability offenses often require the plaintiff to prove the existence of a reasonable alternative that would have prevented the accident. Other common arguments include unforeseeable misuse or modification on the part of the user. State of the art defenses are frequently offered by manufactures and usually fall into one of two categories: The manufacturer may argue that the product conforms with the products of other manufacture’s or meets a particular set of industry standards or that the any proposed safer alternative design is not technologically or economically feasible and does not truly exist.

Warranty & Negligence

While Products/strict liability theories may often provide the most promising avenue for recovery, it is important to consider the facts of on a case by case basis. Often, causes for breach of warranty and/or negligence may provide alternative means for recovery and can be brought simultaneously with products liability causes.


Our Role

Distinguishing between design, manufacturing, and warning defects can sometimes be a difficult task requiring knowledge of both engineering and the law. Initially, a clear distinction may not be possible without further investigation and design review. At RWFE, we often help our clients determine which legal theories may be possible to pursue and which do not have sufficient evidence to support. If more investigation is needed, we will sit down with and let you know what we can do to help, what type of expertise you will need, and what additional information would be helpful or damaging to your case. We will be straight with you – our goal is to help you have the understanding possible before deciding whether to pursue your case or not and on what grounds you should pursue.In some instances, we have found that facts related to products/strict liability cases may also support causes for negligence and/or breach of warranty. If you would like to consult with an RWFE associate to help you with legal causes and theories, and finding the engineering expertise that you will need, please give us a call.