Main Content

Zittrain Torts Playlist Spring 2013

XX. Products Liability: Manufacturing Defects

If you’re hurt by a poorly made product, you might well have a straightforward negligence case against the manufacturer. But as mass production ramped up over the last century, some judges found the existing negligence frame unsatisfactory. Escola is famous not for its majority opinion but its concurrence, one in which Justice Traynor urges a seemingly entirely new regime for the burgeoning number of cases in which a product hurts a consumer: strict liability. Within a few years, Traynor’s vision become a majority one in many jurisdictions, including his own California, though with enough caveats that the “strict” is probably no longer the best moniker. Instead, it’s a regime all its own: products liability. Today’s and tomorrow’s cases look at products liability and its caveats, including what would become three major types of cases brought under its rubric: manufacturing defect, design defect, and failure of warnings. As you read this cases, it’s worth considering, both in theory and in practice, when a case that would work under products liability would fail in plain negligence – or vice versa.

Section Contents