This Article examines the question of whether (or when) product sellers should be allowed to offer optional safety equipment without fear of being held strictly liable for selling a defectively designed product. Part II of this Article examines several approaches to risk-bearing. At one end of the spectrum, the principle of personal autonomy dictates that consumers should decide how much risk they wish to accept. On the other hand, products liability law assumes that if consumers are allowed to subject themselves to greater risk, producers will be quick to take advantage of their inability to make rational decisions about what risks to bear. Finally, economic analysis suggests that manufacturers should be responsible for reducing product-related risks when they are the "cheapest cost avoiders," but should be allowed to shift risks when consumers have superior knowledge or ability to avoid or manage those risks.
Part III examines a number of cases where the manufacturer designs a product in accordance with plans and specifications provided by the purchaser. In such cases, the courts usually apply the contract specification doctrine, which protects manufacturers from liability to product users unless the design flaw is obvious. Part III also evaluates cases involving the sale of "naked" products, where the manufacturer of industrial machinery delivers the product without safety devices, leaving it up to the purchaser to decide what safety equipment to install. Although some courts hold the manufacturer liable if the product is defective as sold, the modem trend is to allow the manufacturer to delegate the responsibility for installing safety equipment to the purchaser, particularly if the product is a multi-purpose one.
Part IV looks at cases involving the provision of safety equipment on an optional basis by the manufacturer of products intended for industrial or commercial use. Many of these cases authorize manufacturers to shift the responsibility for product safety from themselves to purchasers by allowing the purchaser to choose what safety equipment they wish to have installed. This is somewhat surprising because decisions about optional safety equipment, which are typically made by employers, may very well be suboptimal because the employers who make these decisions are not the ones who are exposed to the resulting product-related risks.
Part V examines decisions involving optional safety equipment on products manufactured for ordinary household use. It reveals that courts have employed four approaches in such cases. The first approach is to determine whether the product is defective in the condition in which it is actually sold, that is, without optional safety equipment. A second approach is to allow the manufacturer to offer optional safety equipment without liability as long as the consumer has superior knowledge about the risks associated with the intended use of the product. A third approach imposes liability on sellers of single-purpose products if they fail to offer cost-effective safety features as standard equipment, but allow sellers of multi-purpose products to offer safety equipment on an optional basis. Finally, an approach developed by the New York courts allows a seller to offer an optional safety feature without risking tort liability if: (1) the buyer is thoroughly knowledgeable regarding the product and its use and is actually aware that the safety feature is available; (2) there are some uses for which optional equipment is not necessary; and (3) the buyer is in a position to evaluate risks and benefits of not purchasing a particular safety device.
Part VI evaluates some of the approaches that courts have used to determine whether a product seller can offer safety devices as optional equipment without incurring tort liability. This analysis considers these approaches in terms of personal autonomy, consumer protection, and economic efficiency. Finally, Part VII proposes a new approach to the issue of optional safety equipment in connection with both products designed for use in industrial or commercial settings and those that are intended to be sold to ordinary consumers.
Ausness, Richard C., "Risky Business: Liability of Product Sellers Who Offer Safety Devices as Optional Equipment" (2011). Law Faculty Scholarly Articles. 538.