Clem on Torts: Chapter 10: Products Liability

Copyright 2014, Richard P. Clem
Richard P. Clem Continuing Legal Eduction

Clem on Torts is a comprehensive review of the material covered in a first-year torts class in an American law school. It is available free of charge on this website, and is also available for purchase as an Amazon Kindle book.

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The area of products liability covers the liability of a defendant who supplied a product for injuries caused by that product. There are four possible bases for liability. The area of products liability is one where the fields of tort law and contract law sometimes overlap. A products liability case can be based upon negligence, misrepresentation, warranty, or strict liability.


A person who supplies a product has a duty to anyone who will foreseeably come into contact with the product to use reasonable care. One of the earliest cases recognizing such a duty was Winterbottom v. Wright, 10 M&W 109 (Exch. 1842), and this duty was established in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), in which Justice Cardozo held that the duty of care was breached when the manufacturer had “knowledge of a danger, not merely possible, but probable.”

This type of negligence can be established in a number of ways. The negligence could come in the form of the way the product is manufactured, but it could also be in the way in which the product is labeled or marketed.

It should be noted that a product liability case is frequently one where joint enterprise liability can be applied. So when a product negligence case appears on your final exam, be alert to the possibility of that type of vicarious liability.

As with any negligence case, all four elements must be proven: Duty, breach, causation, and damages.


While not applied as frequently as the other theories, a product liability case can sometimes be established through the tort of misrepresentation. The elements of this tort are:

  1. The defendant is in the business of selling chattels.
  2. The defendant makes a public misrepresentation of material fact through advertising, labels, or otherwise.
  3. The plaintiff justifiably relies on the misrepresentation.
  4. The plaintiff suffers physical harm.

In setting forth the elements of this tort, the Restatement makes clear that the representation need not be fraudulent or negligent, and the plaintiff and defendant need not have entered into a contract directly with one another.


Even though it is, strictly speaking, outside the scope of tort law, warranty claims are frequently covered by tort courses, since the claims often overlap. Under section 2-313 of the Uniform Commercial Code, express warranties are enforceable. And under section 2-314, any sale of goods includes an implied warranty of merchantability, and of fitness for a particular use, as long as the seller is aware of that use.

Under section 2-318, this warranty is in favor of the buyer and his or her household; the buyer and persons whose contact with the product is foreseeable; or any person whose contact is foreseeable.

In order to avoid an implied warranty, the seller must use very specific language. To disclaim the warranty of merchantability, the contract must use the word “merchantability” or language such as “as-is”. Express warranties must be clearly disclaimed.

Strict Liability

Most states have now adopted strict liability for product liability cases. The elements for a strict liability product liability case are:

  1. Injuries were sustained by a person whose contact is foreseeable.
  2. Defendant is a professional supplier of the product.
  3. The product was expected to reach the consumer essentially unchanged.
  4. The product was defective.
  5. In most jurisdictions, the product was unreasonably dangerous.
  6. The defect caused the plaintiff’s injuries.

The typical issue in these fact patterns involves the fourth element: whether the product was defective. A product is defective if it defeats the expectations of a reasonable consumer. Some courts have held that this is standard is the same as defeating the expectations of a reasonable supplier.

The other issue to address is whether the product was unreasonably dangerous. This means that the risks outweigh the burden of avoiding the risks.

Clem on Torts is also available at Amazon as a Kindle book.

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