Product Safety
The BIG question is:
How safe is safe enough?
What are the possible theories
about product safety?
• The “Classic” theory – The company owes the
consumer a product that lives up to the explicitly
stated safety claims, plus warnings about known
hazards that are not obvious.
• The “Due Care” theory – The company owes the
consumer a product that is designed and
manufactured to be as safe as possible, plus
warnings about hazards that cannot be avoided.
• The “Social Costs” theory – The company should
meet the “Due Care” theory requirements, plus
pay for any harm that may occur.
Lawnmower design provides a
good example of these theories.
• “Classic theory” holds up to the1960s – ungoverned
engines, no deflection chute, no roll-back protection,
BUT warnings in the instructions about the lawnmower
projecting rocks as missiles, etc.
• The “Due Care” theory takes over beginning in the 1970s
and 80s – safer designs, e.g., governed engines,
deflection chutes, “dead-man” clutches, etc., PLUS
warnings.
• The “Social Cost” theory holds today in tort litigation over
lawnmower injuries. “If your lawnmower injury was the
result of a defective lawn mower or lawnmower part then
you may be entitled to monetary damages…. A personal
injury lawyer can best advise you on the merits of your
case.” (Internet legal ad.)
How do these theories answer the
question, “How safe is safe enough?”
• The Classic theory – As safe as the manufacturer
says it is. It is up to the consumer to decide if this is
safe enough to buy and use.
• The Due Care theory – As safe as is possible given
the current understanding by the manufacturer
about how and why consumers use the product and
what kinds of problems come up during this use.
Note this would be an evolving standard.
• The Social Costs theory – It is never safe enough,
no matter how hard the manufacturer tries. That’s
why the manufacturer will pay for all injuries.
What legal doctrines are associated with
these theories about product safety?
• The Classic theory ↔ The legal doctrine of
express warranty.
– A written promise about the safety of the product.
• The Due Care theory ↔ The legal doctrine of
implied warranty.
– An unspoken and unwritten guarantee that the
product is safe during the ordinary uses for which it is
intended.
• The Social Costs theory ↔ The legal doctrine of
strict liability.
– A legal obligation to compensate consumers for any
damages stemming from use of a product.
“Liability”
Article by
Peter Huber
What is strict liability?
• It is the legal doctrine that a manufacturer is
liable for the consequences of any and all
defects in the manufacture and design of a
product, even if all possible care has been
exercised in the production of the product.
• In terms of our possible theories about
product safety, this falls under the Social
Costs theory.
• Since it is a prevalent doctrine in the area of
tort liability, we do, in fact, live in a Social
Costs legal environment.
Does strict liability make ethical sense?
• Moral blame usually stems from ill will or from
negligence.
– An example of ill will: John is mad at Mary and trips
her on the stairs to get even. She falls down the stairs
and is injured. John is morally blameworthy.
– An example of negligence: Caroline is tired and
carelessly throws her clothes on the floor at the top of
the stairs. Mom trips and falls down the stairs and is
injured. Caroline is morally blameworthy.
• True accidents usually do not have moral blame
assigned in them.
• However, strict liability assigns blame even
when there is no ill will and no negligence.
Why did we get into strict liability?
• Manufacturers are sometimes slow in fixing
manufacturing and product defects.
– Successful tort litigation can provide a good push to
fix things. Manufacturers call this “extinguishing
liability.”
• The injured consumer certainly does not
deserve his or her injury, and they arguably
deserve relief.
– Strict liability, for all practical purposes, insures the
consumer and attaches the insurance premium to the
cost of the product.
• There are, however, other ways to address
these concerns.
“Fear of Living”
Article by
Henry Fairlie
What can we say about the “social
cost” theory of product safety?
• Fairlie says it has basically screwed us up,
and will drive our economy and society to
a stand-still.
– Although he makes his point in terms of strict
liability.
Fairlie says we have become a
bunch of fearful risk-avoiders.
• The change between Apollo fire in 1967
and the Challenger disaster in 1986.
• Baby-boomer self-centered hedonists.
• The destructive rise of tort law
(suspension of due process to suppress
and/or correct risk).
• The cancerous growth or regulations.
• Collapse of the political party system into a
tyranny of special interest groups.
What is the cost of our obsession
about risk according to Fairlie?
• Metaphoric answer – No Viking ships or
Columbus voyages.
• A stagnation of technological innovation.
– For example, the specific case of nuclear power.
According to Scientific American, the average
coal power plant emits more than 100 times as
much radiation per year than a comparatively
sized nuclear power plant does, in the form of
toxic coal waste known as fly ash. Etc.
“Calculating Risks: It’s Easier
Said Than Done”
Article by
John Nesmith
Can consumers accurately
evaluate the risks to them?
• This is required under the Classic theory about
product safety, and Nesmith says, “No.”
Overestimate Underestimate Examples
No control
Immediate
All or nothing
Manmade
Don’t like
Imposed
Control
Chronic
Has degrees
Natural
Use ourselves
Voluntary
Nuke power vs. Harley
Anthrax vs. radon
Flying vs. driving
X-rays vs. solar
Big Mac vs. Fattburger
2nd hand vs. smoker
So, what’s Nesmith’s point?
• Since we can’t accurately evaluate risk, a
theory of product safety that puts the
burden on us makes no sense.
• He does not use this terminology, but out
with the “classic” theory and in with the
“due care” theory.
So, where does that leave us
regarding product safety?
• Huber and Fairlie agree that the Social Costs
theory, at least in the form of strict liability, is
– Shaky legal doctrine
– Economically and socially disastrous
– And I would add, ethically suspect
• Nesmith argues that the Classic theory rests
on false and impossible assumptions.
• So, up with the Due Care theory, although
companies have to remember that strict
liability still lives in tort-land.