kyle010723 wrote: Tiago Splitter wrote:
kyle010723 wrote:If Plaintiff bring an action against a manufacturer alleging injuries on the ground of strict liability due to failure to warn. Is it a defense that manufacture did not know of such risk, and the risk was not known in the industry at the time?
I remember doing a few questions like that on the MBE but cannot find an answer on point. The closest one is "scientifically unknowable risk" may be a defense, but that seems like an exceedingly high bar. Presumably any risk is scientifically discoverable if one is to invest an unlimited amount of money.
I'm no expert but I think that's why it's called strict liability. You basically tell the manufacturer they're responsible for everything and they can decide how much to invest in safety.
You're probably right. Thanks.
I'm no expert either but I spent a bit of time trying to figure this out some time ago because it makes my head spin. My bottom line is this: A plaintiff can sue in a products liability case either in negligence or strict liability, alleging in either case that a product was defective because of (a) a manufacturing defect (b) a design defect (c) or inadequate warning.
In a negligence suit, you follow the usual negligence approach: was the defendant negligent with regard to the manufacturing process, the design, or the warning label?
Here's the catch: in a strict liability suit, you would think that a plaintiff would need to show no knowledge or fault at all on the part of the defendant in all three categories of product defects. It's strict liability, right?? Wrong! In reality, only the fist kind of defect—manufacturing defect—is true strict liability. No matter how careful the manufacturer was, if the plaintiff gets injured by a product that came off the assembly line with a defect none of the other million products in the line that year had, the plaintiff wins. For the other two kinds of defects, courts apply negligence-like tests, so strict liability is a bit of a misnomer. For design defects, courts will ask whether the defendant could reasonably foresee the use the plaintiff made of the product (even if it was a misuse). If so, plaintiff wins. Courts will also ask whether there was a feasible alternative to the way the product was designed (that sounds like negligence, right?). And for warning defects, the plaintiff wins if she can show that the warning was not adequate, i.e. it did not warn the user of apparent risks. In effect, courts are asking whether it is reasonable to expect the manufacturer to provide different warnings (sounds like negligence again to me). So if the industry as a whole has no knowledge of a product's particular danger (in OP's hypo), I would think you could not win against the defendant, even in strict liability.
In sum, the analysis changes quite a bit for manufacturing defects, depending on whether you sue in negligence or SL, but for the other two kinds of product defects, it's very similar in both kinds of suits.
Another big difference is that, for all three product defect claims, you can use strict liability only against commercial suppliers, but I believe you' can sue casual sellers and service providers in negligence.