The liability of a manufacturer or seller of a product was once a simple matter of measuring the conduct of the defendant against traditional negligence principles.
In the early 1960s, however, the courts began to accept the notion that the supplier of a defective product should be held accountable for consequent injuries based, not on the conduct of the defendant, but on the performance of the product. Strict liability thus became the most-often-asserted basis for recovery under the modern law of products liability.
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Recognition of a strict liability cause of action was deemed appropriate because the manufacturer and seller of a defective product are better able than the injured consumer to absorb the loss. Through charging higher prices for its product and obtaining products liability insurance, the supplier is able to pass the cost of the accident to the public at large. The often catastrophic costs are shifted from the person who suffers the injury to the consuming public. Strict liability, then, was justified as a means of distributing the loss and shifting the risk from the injured person to the consuming public.
Parallel to the development of strict liability, Article 2 of the Uniform Commercial Code gained approval as a statutory basis for the recovery of damages for product-caused injuries. Article 2, which deals with sales, provided plaintiffs with three additional theories: breach of express warranty, breach of implied warranty of merchantability, and breach of implied warranty of fitness for a particular purpose.
The convergence of the negligence, strict liability, and warranty theories has produced a proliferation of considerations and issues unprecedented in tort law. In response to this situation, the states have begun to legislate in this area and the federal government is seriously considering enacting language which would attempt to clarify and unify the status of product liability law in this country.
In 1976, NLRG conducted a complete analysis of product liability law for the U.S. Commerce Department's Interagency Task Force on Product Liability. This 1,200-page study was published in full by the federal government. We also sponsored the First World Congress on Product Liability, held in London. The Congress brought together leading experts in the field from the United States, Europe, and the Far East. NLRG publishes Product Liability Trends, a monthly analysis of current legal, political, and economic developments relating to product liability. Moreover, to date, more than 1,000 studies of product liability issues and problems have been completed for our clients.
Representative of the specific problems which attorneys in the area may encounter are the following: