Adonis Diaries

Article 32,

“Consumer Product Liability Engineering”

Liability connotes a legal venue to redress a social harm or injustice suffered by an individual or a group of people. When product liability is studied as a legal issue then we brace ourselves for an evolving process that changes with time, development in constitutional law, and the adopted legal system whether based on “civil law” wrote by a legislative body or common law subject to court interpretation and based on precedents established by court decisions.

Knowing the basics of product liability is of paramount importance for design engineers since finger-pointing is naturally directed toward those who were responsible for designing, manufacturing and marketing deficient products that caused harms such as bodily injuries, death or financial loss and legally termed “tort” (a wrong done to someone). In any legal case there are two main parties: the plaintiffs or those who suffered harm and the defendants or those entitled to salvage foreseeable loss from the accusation or lawsuit.

A product liability plaintiff can be an individual consumer who purchased a product, material or intellectual, and through deficiencies in the product or misuse from its intentional function or abuse in deceptive advertising suffered adverse consequences or it can be any manufacturing equipment that harmed a worker or an operator or a program intended to facilitate a job and failed to deliver what it promised to offer. Recently, there have been groups of plaintiffs such as tobacco consumers, asbestos cases, auto recalls, environmental pollutions in water drinking, earth contamination, and dangerous manufacturing by-product refuses discharged in inhabited locations and so on.

The defendants could be a private designer, an industry, a company, a municipality or even a government branch or a State.

This article is focused on the liability for product design so that an engineer designer develop the proper behavior when assigned a job design and comprehend that the ultimate user of his product is a human being and there are consequences for a failed or a deficient product.  Product liability was initiated as a form of contractual relationship between the local manufacturer and the consumer called “privity“; another of its aspects involve warranty or promise that a product will or will not do.

Once middlemen appeared in the purchase process the contract was established all along the chain of commerce and this concept of privity began to erode for the alternative doctrine of negligence or lack of care normally expected.  The next development was bypassing the costly and difficult necessity of proving negligence by plaintiffs in order to be able to win a case by adopting the doctrine of “strict liability in tort”.  

When the unaware plaintiff of the unsafe usage of a product is injured and, as long as the product was being used the way it was intended to be used, then the plaintiff can sue for the fact that he was injured. In order to encourage companies for safer conditions in products, laws have been enacted so that if a defect has been repaired in subsequent production of the same product line then plaintiffs cannot use this previous deficiency fact in court to prove that the initial products were defectives.  A compendium of product liability cases were summarized in volumes called “Restatements of Torts Second”.

            The next important modifications were to extend intended use to “foreseeable misuse” of a product so that the expert engineer designer must foresee the alternative ways that a target user might use his product in manners not intended originally.  The designer has also to be aware that failure to provide warnings on a product or manuals, in pictorial and written forms, are cited as defects in a product; a warning must be visible in obvious locations and specify clearly the hazard though it cannot be used as disclaimers by the manufacturer.

            Other forms of product liabilities can be found in breach of warranty whether explicit or implied such as depicting Jeeps capable of flying with the greatest of ease and clearing the tops of steep hills. The defects in Jeeps were cited so often that their cases were given proper categorizations such as “handling”, “propensity to overturn”, “occupant protection”, or “failure to warn”.

            There are other legal doctrines that were developed for product liabilities such as “comparative negligence” where defendants’ parties are judged to fraction percentages at fault of the damage awarded to plaintiffs and “deep pockets” doctrine formally known as “joint and several liabilities” where defendants evaluated not being able to pay then the remaining rich parties would pick up the whole tab of the award.

            It is important to differentiate between product liability and “workers’ compensation” insurance law (where injured workers are covered for medical treatment and some monetary compensation for a disabling injury).  In the event that the defective equipment or product is not manufactured by the employer of the injured worker then the latter may sue the manufacturer to cover any inadequate workers’ compensation expenses.

            The best strategy for designers and manufacturers to avoid product liability suits or becoming “judgment proof” is first, to consciously design in safety in their products and which require les maintenance than competitive products and second, to acquire the proper attitude in conducting good-faith negotiations with the injured party.  It is important that the defendant during “interrogatory” never sign a list of answers that are wrong or misleading to questions that the plaintiff’s lawyer asked under oath, otherwise, if an answer is proven false then the defendant might expect from the jury to award huge punitive damages that far exceeds a normal settlement.

            From the plaintiff’s standpoint his best strategy is:

First, to be knowledgeable about protecting his rights in recovering damages,

Second, to retain a specialist lawyer with connections to the best engineering expert witnesses who nine out of ten cases can convince the defendant’s lawyer to settle out of court based on proper technical evidence,

Third, the plaintiff has to avoid destroying evidence or sign premature releases or make incorrect admissions against his own interest before hiring his expert lawyer.