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26.4 Claims and defenses in product liability cases

Having covered the phenomenon of product liability litigation, the human toll of accidents, and the large financial risks involved, this section covers what plaintiffs must prove in order to prevail in a suit based on an allegedly defective product, as well as what defendants must prove in order to assert certain defenses. Typical claims for plaintiffs seeking damages for bodily injury or property damage from an accident are “strict product liability,” “negligence,” and “breach of warranty.”[1] Most of the law governing product liability in the U.S. is state law, as opposed to federal law, and laws diverge from state to state.

26.4.1 Strict product liability claims

The easiest type of claim for a plaintiff to prove is a so-called “strict product liability” claim. A plaintiff can include in the suit almost every business in the chain of distribution from raw materials or component part manufacturers to manufacturers of the finished product, distributors, and retailers [13]. Strict liability refers to liability for defective products without fault on the part of the manufacturer and regardless of whether or not there is a contractual relationship between the plaintiff and defendant. Laws vary significantly from state to state, and some states do not even recognize strict liability as a viable claim. Nonetheless, most states' statutory and common law strict liability laws are based on the formulation of strict liability under Section 402A of the Second Restatement of Torts [2].[2] As stated in the Restatement, in order to win a strict liability claim, the plaintiff must prove at trial:

• The defendant sold the product in question,

• The defendant is in the business of selling this kind of product,

• The product was defective and unreasonably dangerous at the time it left the defendant's hands,

• The product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold, and

• The defect was the proximate cause of the plaintiff's injuries [2].

The key issue for AV strict liability design defect claims will be whether the vehicle was “defective.” A plaintiff may assert that the product was defective in its design, the product was defective in the way it was manufactured, and/or that the defendant failed to provide adequate warnings or instructions to the users of the product. Of greatest concern for AV litigation are design defect and failure to warn claims.

A plaintiff asserting a design defect would show the existence of a “defect” under the applicable state law test. Courts in the U.S. apply one of the following tests:

• A test based on what an ordinary consumer would expect from a product, typically used where the potential for injury is clear to consumers from the nature of the product.

• The risk-utility balancing test, where the plaintiff contends that the risks from a design outweigh the benefits to the consumer or public from a design.

• The product manufacturer test, which asks whether a reasonably prudent manufacturer or seller, aware of the product's dangerous condition, would not have put the product on the market if it had been aware of the product's condition.

• A combination test, which may shift the burden of proof to the manufacturer to show a lack of defect in certain situations.

• The ultimate issue approach, in which the jury has the discretion to determine whether a design is defective [31].

Frequently, a plaintiff asserting a design defect will use expert testimony to explain why the defendant's design is defective and will attempt to prove that an alternative design could have prevented the accident.

In addition to relying on design defects, a plaintiff may also assert a strict liability claim based on a “failure to warn” theory. Under this theory, the plaintiff could contend that an AV was defective because the defendant failed to provide adequate warnings or instructions about the vehicle. The plaintiff would need to prove that the warnings did not adequately reduce risks associated with the product or that the instructions were inadequate to tell the user how to use the product.

  • [1] Another theory of recovery for plaintiffs is fraud, also known as “deceit” or “misrepresentation,” and is based on false statements made by the seller about a product. Misrepresentations may be intentional, negligent (careless), or innocent. This type of claim, however, is the least used theory of recovery in the product liability context [13]
  • [2] “More than three quarters of American jurisdictions incorporate all or part of this section in their own distinct brand of strict liability.” [13] Restatements of law summarize an area of law in the U.S., but do not themselves have the force of law
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