Did your cellphone blow up in your pocket? Did that cream burn your face off? Well, time to get paid, not played. With "mega mass production" and no quality control, manufactures are increasingly being placed at fault for accidents involving defective products.

 

Except in those few cases where the threshold issue is whether a “product” was involved, plaintiff's first task in a strict product liability action is to establish that the injury-producing object or instrumentality was "legally defective". For this purpose, a product may be “defective” because of a manufacturing defect, a design defect, or a warning defect

​

Manufacturing Defect: 

​

Strict liability for a “manufacturing defect” may be imposed if, when the product left the particular defendant's control, it differed from the manufacturer's intended result or from apparently identical products of the same manufacturer, and the product was used in a manner reasonably foreseeable by the defendant but nonetheless caused plaintiff injury.

​

Plaintiff's burden is to demonstrate that there was a flaw in the manufacturing process—i.e., that the product deviated from the manufacturer's design or specifications and was manufactured differently from the prototype.

​

Design Defect

​

Although “perfectly” manufactured, a product may nonetheless be legally defective because of a flaw in design (e.g., missing a safety device)

​

“Design defect” strict liability may be established under either of two alternative tests, commonly known as the “consumer expectation” and “risk-benefit” tests. 

​

Under the "consumer expectation" test, a product is defective in design if it failed to perform as safely as an ordinary consumer would expect (or have a right to expect) when using the product in an intended or reasonably foreseeable manner.

​

Or, a design defect may exist because, in light of relevant factors (below), judged by hindsight, the risk of danger inherent in the challenged design outweighs the benefit of the design (i.e. "risk benefit" test).

​

Public policy regards some products to be so beneficial to society that their introduction into the stream of commerce is deemed warranted notwithstanding their “inherently dangerous” design—i.e., on balance, the benefits of the challenged design outweigh the risks from the inherent design dangers. Here, “design defect” strict liability will not lie. 

​

Warning Defect

​

A product not otherwise defective in manufacture or design may nonetheless be deemed legally “defective” if a suitable warning about its dangerous propensities is not given (e.g., warning of side effects from drugs, of hazards from use of asbestos products, or of potential risks from use of certain machinery, etc.). Similarly, a legal “defect” may be rooted in the failure to provide appropriate safe use instructions. 

​

​