Chapter 10
Product Liability

I. Definition of Product Liability
Manufacturers and anyone in the chain of product distribution can be legally liable for defective products that cause injury to the purchaser, a user or bystander, or their property. Most states have adopted strict product liability, whereby an injured person may recover damages without showing that the manufacturer was negligent or otherwise at fault without a contractual relationship.

II. Theories of Recovery
The primary theories on which a product liability claim can be brought are breach of warranty, negligence, and strict liability.

A. Breach of Warranty In a warranty action, the question is whether the quality, characteristics, and safety of the product were consistent with the implied or express representations made by the seller.

1. UCC Warranties may be either express or implied for merchantability or fitness for a particular purchase, as set forth in Chapter 8.

2. Privity of Contract Breach-of-warranty is based on contract law. Generally, an injured person to recover for a breach of warranty, he must be in a contractual relationship (privity) with the seller (a consumer or buyer of the product) and prevents recovery from bystanders not in privity with the seller.

B. Negligence To prove negligence in a product liability case, plaintiff must show defendant did not use reasonable care in designing or manufacturing its product or in providing adequate warnings or failed to comply with statutory requirements. Generally, plaintiffs cannot prove negligence by introducing evidence of “upgrades” taken by a defendant to improve a product. MacPherson is the landmark case in which the defendant manufacturer was found liable for negligence even though there was no contractual relationship between the manufacturer and the plaintiff.

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