Understanding Products Liability, Strict Liability, and “Strict Products Liability”

Products Liability Includes Several, Independent Claims

“Products Liability” is actually made up of a several, different types of claims, which include:

  • Strict Products Liability (defective product)
  • Products Liability Negligence (regular elements of negligence apply)
  • Warranty Theory (implied warranties and any express warranties)
  • Battery (product as instrument causing battery)

Accordingly, when a question generally asks for possible “products liability” claims, and not one of the above claims specifically, then you should consider the possibility of any or all of these claims.

Strict Liability Also Includes Independent, Differing Claims

Likewise, “Strict Liability” also consists of a number of several, different, and independent claims, including:

  • Strict Products Liability (defective product)
  • Strict Liability for abnormally dangerous activities (e.g., transporting explosives)
  • Strict Liability for animals (wild animals and domestic animals with a dangerous propensity)

Don't Confuse Different Types of Strict Liability Claims

Many individuals confuse "Strict Liability for abnormally dangerous activities" and "Strict Products Liability". The difference between the two is that Strict Liability for abnormally dangerous activity requires an “abnormally dangerous activity” as an element of the claim. In contrast, Strict Products Liability requires the element of “defective product.”

A Model Template For "Strict Products Liability" Claims

From the above, it is important to recognize that “Strict Products Liability” is the only claim to fall into both categories: products liability and strict liability. The elements of a Strict Products Liability claim, and how you should organize an essay response, include the following*** (the underlined headings below):

Strict Products Liability

[Provide overview statement here identifying the elements of the claim (proper parties, defective products, actual cause, proximate cause, and damages) just as you would for a negligence claim.]

Proper Parties

Foreseeable users of the product are proper plaintiffs and all parties in the chain of the marketing are proper defendants.

Defective Product

Strict products liability requires a defective product. A defect may occur via a defect in manufacture, design, or warning [be sure to specifically explain the basis of the product defect in your analysis, whether by manufacture, design or warning].

Actual Cause

“But For” Test [same as Negligence Actual Cause]

Proximate Cause

Foreseeability Test [same as Negligence Proximate Cause]

Damages

Those injuries and loss caused by the defective product (e.g., bodily injury, medical expenses, pain and suffering, property damage)

Defenses

Contributory Fault (Comparative & Contributory Negligence)

[Note, contributory negligence is not applicable in strict liability claims because the liability attaches regardless of the fault of the plaintiff; this is why it is “strict” liability. However, comparative negligence may apply only if the plaintiff knew of the defect and knowingly used the product anyway. If so, then the plaintiff’s claim will be reduced by the percentage of his or her own negligence.]

Product Misuse

Strict Products Liability does not apply if the plaintiff misuses or overuses the product (e.g., overdose on prescription medicine).

Don't Limit Your Inquiry to Strict Products Liability

Keep in mind, in most cases, unless the question directs or limits otherwise, anytime you raise a Strict Products Liability claim on an essay, a corresponding claim of Products Liability Negligence will also be appropriate.

***Note, each sub-issue of the Strict Products Liability discussion should always include ALL the "essential issue components" as explained in the Workshop.