Strict liability has always been the heart and soul of American products liability law. As early as 1963, Justice Roger Traynor in Greenman v. Yuba Power Products, Inc. stated that "[a] manufacturer is strictly liable in tort when an article he places on the market, knowing that it will be used without inspection for defects, proves to have a defect that causes injury to a human being." Shortly thereafter, the drafters of section 402A of the Restatement (Second) of Torts made it clear that the exercise of due care would not shield sellers from liability when their products caused injury. The new Products Liability Restatement continues to adhere to the concept of strict liability, at least in theory. Nevertheless, plaintiffs now commonly supplement or even replace strict liability with claims that rely on fault-based liability theories. These theories are attractive because they allow plaintiffs to avoid the Restatement's defect requirement and enable them to focus on a product seller's behavior instead of the condition of its product.
Part II examines some of these theories, including fraudulent misrepresentation, fraudulent concealment, civil conspiracy, negligent entrustment, negligent marketing, and negligence per se. Part III identifies some of the reasons why plaintiffs prefer fault-based liability theories instead of strict liability: these theories enable them to avoid the product defect requirement, to circumvent the preemptive effect of federal law on certain failure to warn claims, and to focus the jury's attention on the defendant's culpable misconduct. In addition, these theories allow plaintiffs to side-step risk-utility analysis in design defect cases and relieve them of the need to prove the existence of a reasonable alternative design. Theories such as fraud and negligent marketing may prove useful in obvious hazard situations. Fault-based liability theories are also useful in suits against drug companies because they help plaintiffs to avoid the Restatement's special rules, which limit conventional design defect and failure to warn claims against manufacturers of prescription drugs and medical devices.
Part IV concludes by predicting that strict liability will continue to lose ground in products liability law, except in manufacturing defect cases, because of the advantages that plaintiffs see in fault-based liability theories. While this trend may be beneficial because it helps to reorient products liability law toward a conduct-based liability regime, it also encourages litigants to expand existing liability doctrines beyond their traditional boundaries. Hence, courts must be wary of embracing extreme versions of these theories.
Richard C. Ausness, Product Liability’s Parallel Universe: Fault-Based Liability Theories and Modern Products Liability Law, 74 Brook. L. Rev. 635 (2009).