翻译原文
The Principles of Product Liability*
ByWright, Richard W
A. Proper Parties, Cognizable Injuries, and Defenses
A product liability action lies against a person engaged in the business of selling or otherwise distributing products, who sold or distributed a defective product if that defect actually and proximately caused physical injury to the plaintiffs person or property.Whether the liability is strict or requires proof of negligence depends on the applicable definition of defect. When true strict liability exists, it is always supplemental to negligence liability; the plaintiff can always bring a negligence action.
If strict liability exists, it applies to sellers or distributors of products, but not services, and usually only if the product is new or rebuilt rather than used, especially if the used product is sold "as is." Sellers and distributors of products include not only product manufacturers (including manufacturers of component parts), but also wholesalers, retailers, lessors, bailors, and others in the chain of commercial distribution of the product. The non-manufacturer sellers and distributors are strictly liable for selling or distributing a defective product even if the relevant definition of defect requires negligence on the part of the manufacturer. A few jurisdictions limit strict liability to manufacturers, and many subject nonmanufacturer sellers and distributors to strict liability only if the manufacturer is unavailable, insolvent, or likely to become insolvent. Although Restatement Second section 402A explicitly left the issue open,the cases since have clearly established that bystanders, as well as purchasers and users of the product, are proper plaintiffs in a product liability action, whether based on negligence or strict liability.
Tort liability for physical injuries to person and property caused by defective products generally is not subject to contractual disclaimer, limitation, or waiver, except perhaps when there has been a fully informed, freely negotiated bargain for an adequate quid pro quo by consumers with sufficient bargaining power. Similarly, a product user is contributorily negligent only when she behaves unreasonably in the light of risks posed to her by a defect in the product of which she was aware or, due to its obvious or patent nature, should have been aware. She generally has no obligation to inspect products for defects but rather is entitled to assume that they are fit for the ordinary purposes for which they were made. In almost all jurisdictions, the plaintiff's contributory negligence is a partial rather than a complete defense, which often reduces rather than bars the plaintiffs recovery.
In the great majority of jurisdictions, there is no tort liability, under either negligence or strict product liability, for pure economic loss-injury to the plaintiffs economic expectations that does not result from actual (or perhaps threatened) physical injury to the plaintiffs person or property. In most jurisdictions, injury to the product itself is treated as pure economic loss, on the ground that such injury merely results in a non-working product and thus a failure of the plaintiffs economic expectations regarding the utility of the product itself. Some jurisdictions treat injury to the product itself as being recoverable physical injury, rather than nonrecoverable pure economic loss, if it occurs suddenly rather than gradually, but this distinction does not seem to have any rational basis other than simplistic imagery (sudden injuries seeming to be more "tort like").
B. Construction Defects
Although no distinction among types of defect was clearly articulated in the initial cases or in Restatement Second section 402A, subsequent cases and commentary have distinguished three different types of defect: construction defects, design defects, and warning defects.
Construction defects are deviations from the intended design of the product, which usually occur in only some instances of the product.The Restatement Third uses the term "manufacturing defect" rather than "construction defect," but the defect can arise (e.g., through mishandling) as the product passes through the chain of commercial distribution after its manufacture, and strict liability will attach to any seller or distributor in the chain who passes the product along in a defective condition.
Except for those few jurisdictions that have not adopted any form of strict product liability, there is general agreement that liability for construction defects is strict, rather than requiring proof of negligence.
C. Warning Defects
Liability for a defective warning requires proof of negligence. Section of the Restatement Third states that a product is "defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings . . . and the omission of the instructions or warnings renders the product not reasonably safe." For both warnings and designs, the Restatement claims to "rely on a reasonableness test traditionally used in determining whether an actor has been negligent," which supposedly requires "determinations that the product could have reasonably been made safer by a better design or instruction or warning" as determined through a "risk-utility
balancing" tradeoff of costs and benefits to product sellers and users in order to create "incentives for manufacturers to achieve optimal levels of safety in designing and marketing products."
These statements are inaccurate with respect to both designs and warnings, and the inaccuracies are insufficiently remedied by language that was added after the inaccuracies were pointed out during the consideration of the relevant provisions by the American Law Institute.
In the first place, the definition of a defective warning in section ignores an important distinction between "risk reduction" warnings regarding proper use, which if followed will reduce or eliminate the risk involved in using the product, and "informed choice" warnings regarding inherent, irreducible risks involved in using the product, which if warned about will not lead to any reduction in the risks involved in using the product but might cause a person to avoid those risks by deciding not to use the product. The addition of the words "or avoided" in section and an expanded discussion of informed choice warnings in comment i to section 2 were intended to more clearly recognize and state this distinction,40 but the attempt is undermined by the retention of the requirement in section that, in order for an omission of a warning to be defective, the omission must render the product "not reasonably safe." Although comment i asserts, as a fiat, that omission of a required informed choice warning "renders the product not reasonably safe," this is not true under any ordinary interpretation of that phrase. A reasonably designed product with reasonable risk-reduction warnings regarding use is "reasonably safe," despite the absence of an informed-choice warning regarding inherent unavoidable risks that, if given, might lead some people to decide for their own particular reasons, as is their right, not to use the product. Indeed, the omission of the informed-choice warning might even reduce the overall risk of injury, if the use of the product, although involving an irreducible risk, would have eliminated or reduced a greater risk of injury from some other source.
Moreover, no "risk-utility balancing" tradeoff of costs and benefits to product sellers and users, in order to create "incentives for manufacturers to achieve optimal levels of safety in designing and marketing products,"is involved in deciding on the reasonableness of product designs or warnings. This is especially clear for warnings. As part of the language added to comment i states,
Warnings must be provided for inherent risks that reasonably foreseeable product users and consumers would reasonably deem material or significant in deciding whether to use or consume the product. Whether or not many persons would, when warned, nonetheless decide to use or consume the
product, warnings are required to protect the interests of those reasonably foreseeable users or consumers who would, based on their own reasonable assessments of the risks and benefits to them, decline product use or consumption.
As in non-product cases, the materiality or significance issue is properly analyzed from the autonomy-oriented perspective of what the foreseeable consumer would want to know rather than the paternalistic perspective of what the product seller thinks the consumer should know.The economic costs to the product manufacturer or seller of providing a warning-for example, the direct costs of designing and providing an adequate warning and the indirect cost in sales (and related jobs etc.) lost due to the warningare not taken into account. Rather, the negligence analysis is a qualitative one that focuses solely on the interests of those put at risk. As the Restatement Third recognizes, the only "balancing" that occurs takes place in evaluating the adequacy of the required warning, which is based entirely on its feasibility and expected effectiveness:
Although the liability standard is formulated in essentially identical terms for defective designs and warnings, the defectiveness concept is more difficult to apply in the warnings context. In evaluating the adequacy of product warnings and instructions, courts must be sensitive to many factors. It is impossible to identify anything approaching a perfect level of detail that should be communicated in product disclosures. . . . In some cases, excessive detail may detract from the ability of typical users and consumers to focus on important aspects of the warnings, whereas in others reasonably full disclosure will be necessary to enable informed, efficient choices by product users. ... No easy guideline exists for courts to adopt in assessing the adequacy of product warnings and instructions. In making their assessments, courts must focus on various factors, such as content and comprehensibility, intensity of expression, and the characteristics of expected user groups.
The economic costs of providing a warning are taken into account only for post-sale product warnings:
Compared with the costs of providing warnings attendant upon the original sale of a product, the costs of providing post-sale warnings are typically greater. In the post-sale context, identifying those who should receive a warning and communicating the warning to them can require large expenditures. Courts recognize these burdens and hold that a post-sale warning is required only when the risk of harm is sufficiently great to justify undertaking a post-sale warning program.
As initially drafted, this comment would have required a post-sale warning "only if the risk of harm outweighs the costs of providing a post-sale
warning."However, when an objection was made to this cost-benefit balancing language, on the ground that a warning could reasonably be required for a serious risk even if the cost of providing the warning might be thought to be greater than the expected harm, the reporters agreed and the comment was modified to conform to the blackletter of section 10, which only requires that "the risk of harm is sufficiently great to justify the burden of providing a warning."
Courts have held that warnings need not be given of the risk of allergic or hypersensitive reactions unless the risk foreseeably affects an appreciable or substantial number of persons, but the use of this threshold requirement rather than the general (consumeroriented) "risk-utility" analysis has been criticized, and the Restatement Third states that what counts as "substantial" should vary depending on the severity of the expected reaction. As is generally true with respect to warnings or other types of information disclosure, "a product seller is not subject to liability for failing to warn or instruct regarding risks and risk-avoidance measures that should be obvious to, or generally known by, foreseeable product users." On the other hand, for purposes of both design and warning, foreseeable uses are not limited to intended uses as envisioned by the product seller, and in most jurisdictions foreseeable uses include foreseeable misuse, which will not automatically undermine the prima facie case or automatically constitute contributory negligence or assumption of the risk.
A few courts flirted for a brief period with a strict liability version of defective warnings, which was implemented by using hindsight rather than foresight. Under the hindsight approach, a product warning (or lack thereof) is defective if, assuming that the product seller knew at the time that it sold the product what is known at the time of trial about the risks of the product, a (better) warning should have been provided about those risks. This hindsight approach to warnings, which never had much support, has virtually none now, although some courts shift the burden on proving the "state of the art" (the state of scientific and technical knowledge) at the time the product was sold to the defendant product seller and (incorrectly) describe this as a strict liability approach.
D. Design Defects
While there now is widespread agreement on the proper definition and related ground of liability for construction and warning defects, there continues to be substantial disagreement and debate about the proper definition and related ground of liability for design defects. Given recent developments, the disagreement and debate may be-as the reporters for the Restatement Third claim58more about language than substance, but even so, the language is important, as others have noted.
The Restatement second adopted strict liability for defective products in
section 402A, without distinguishing among the various types of defects.The strict liability was implemented through a consumer expectations test, filtered through confusing "unreasonably dangerous" language. Comment g to section 402A states that a product is defective if it is "in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him," and comment / states that a product is "unreasonably dangerous" if it is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Comment k emphasizes that, assuming proper preparation and warning, a product is not defective if it is "unavoidably unsafe" due to "a known but apparently reasonable risk" because it is not possible "given the present state of human knowledge" to make it safe for its "intended and ordinary use." The typical examples, noted in comment k, are vaccines or other drugs that have essential ingredients that pose known risks of adverse reactions in some or all users. Similarly, comment / notes the danger of sugar to diabetics, liquor to alcoholics (and others), and butter to potential heart attack victims, and the risks posed by over-consumption of many food and drug products.
The great majority of states initially adopted the consumer expectations test in section 402A comment / as the sole test for a defective product, including design defects. However, as problems arose in attempting to apply the test to design defects, many states supplemented or replaced it with some version of a risk-utility test. Two of the problems with the consumer expectations test were noted by the California Supreme Court in Barker v. Lull Engineering Co. First, if the risks posed by a product are "open and obvious," the consumer could not reasonably have an expectation of safety and would not be able to recover, no matter how unreasonably dangerous the product is, as some courts have held. Second, for some products '"the consumer would not know what to expect, because he would have no idea how safe the product could be made.'"
To avoid these problems, the Barker court supplemented the consumer expectations test with a risk-utility test and allowed the plaintiff to use either or both to establish a defective product design:
A product may be found defective in design even if it satisfies ordinary consumer expectations, if through hindsight the jury determines that the product's design embodies "excessive preventable danger," or, in other words, if the jury finds that the risk of danger inherent in the challenged design outweighs the benefits of such design.
Many courts followed California's lead in adopting this twopronged test for a
defective design. Others, believing the consumer expectations test to be generally unworkable for evaluating product designs, and that the ordinary consumer expects nothing more nor less than reasonable testing and design in the light of the foreseeable risks and benefits to the ordinary consumer, shifted to using only a risk-utility test. A substantial number of jurisdictions continue to employ only the consumer expectations test, but sometimes elaborate it using a risk-utility analysis that focuses on the risks and utilities to the ordinary consumer.
In order to have liability for defective designs remain strict, as previously declared, rather than being based on negligence, the Barker court and a number of other courts using the risk-utility test declare that the product's risks should be identified and assessed using hindsight rather than foresight.However, most courts do not do so, and even in those jurisdictions that theoretically use hindsight regarding knowledge of the risks posed by the product, the relevant technical state of the art often is deemed to be that which was known or reasonably knowable by experts (whether or not it actually was in use) at the time the product was designed, rather than that which exists at the time of trial. In some jurisdictions, the burden of proof on the state of the art or the overall risk-utility analysis is shifted to the defendant,but, contrary to what is sometimes stated,shifting the burden of proof does not change the ground of liability from negligence to strict liability. Few if any cases seem to have held a product seller liable based on risks that were actually unknown and unforeseeable at the time that the product was sold.
Contrary to what is sometimes assumed, the "risk-utility" test for defective product designs is not the aggregate-risk-utility test championed by efficiency theorists, which would trade off costs and benefits among product sellers, consumers, users and others in order to achieve a "socially optimal" maximization of aggregate utility or wealth. Instead, the test, as with negligence analysis generally, focuses on the risks and benefits to those put at risk-in this context generally the consumers and users of the product-and employs a qualitative rather than quantitative comparison of those risks and benefits: the foreseeable risks are unreasonable and thus negligent if they are significant unless they are not too serious and are necessary or unavoidable in order for those put at risk to obtain, directly or indirectly, desired benefits that substantially outweigh the risks. Courts often reference the factors suggested by Dean John Wade, all of which except the seventh (which is sometimes mentioned but rarely relied on and never determinative) focus solely on the risks and utilities to the consumer or user of the product:
1. The usefulness and desirability of the product-its utility to the user and to the public as a whole.
2. The safety aspects of the product-the likelihood that it will cause injury, and the probable seriousness of the injury.
3. The availability of a substitute product which would meet the same need and not be as unsafe.
4. The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.
5. The user's ability to avoid danger by the exercise of care in the use of the product.
6. The user's anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.
7. The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.
While the direct benefits desired by those being put at risk and the indirect equal-freedom enhancing benefits to everyone in society are taken into account, the purely private benefits to the product seller or third parties are not taken into account. Indeed, defense lawyers are generally careful to avoid making arguments that seek to justify risks imposed on the plaintiff by allegedly greater enhancements of the defendant's utility. Defendants who are thought to have knowingly made such risk-utility decisions are often deemed by juries and judges not only to have been negligent, but also to have behaved so egregiously as to justify a hefty award of punitive damages, as occurred in the Ford Pinto, asbestos, and McDonald's coffee-spill cases. Indeed, such aggregate-risk-utility decisions, whereby others are knowingly put at significant risk for the private economic benefit of the defendant, provide one of the few recognized bases for an award of punitive "exemplary" damages in England.
In recent years, there has been a movement among the substantial number of courts that still use the consumer expectations test to limit its use to situations involving harm caused by the obvious failure of a specific product feature or function-for example, the failure of a wood lathe to hold the wood securely in place (as in Greenman) or of the brakes or tires on a new car. The courts that have thus limited the consumer expectations test require the use of the consumer-oriented risk-utility test, which the Connecticut Supreme Court in Potter v. Chicago Pneumatic Tool Co.86 calls a "modified consumer expectation test," in "instances involving complex product designs in which an ordinary consumer may not be able to form expectations of safety."
The Restatement Third states that a product "is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design . . . and the omission of the alternative design renders the product not reasonably safe." The words "reasonable" and "reasonably" in this definition are elaborated through a "riskutility balancing" test, which is described, in language remaining from the initial draft, as involving a tradeoff of costs and benefits to product sellers and users in order to create "incentives for manufacturers to achieve optimal levels of safety in designing and marketing products." However, although the elaboration of the "balancing process" in the initial draft similarly described it as "reflecting a broad social perspective that takes a multiplicity of interests into account," the factors specifically mentioned generally focused on risks and utilities to the consumer or user:
An important consideration is whether the proposed alternative could have been implemented at acceptable cost. Other factors to be considered include the magnitude of the foreseeable risks of harm, the nature and strength of consumer expectations, the effects of the alternative design on product function, the relative advantages and disadvantages of proposed safety features, product longevity, maintenance and repair, esthetics, and marketability.
When I pointed this out at the initial meeting of the Members' Consultative Group in 1993 and noted, as discussed above, that the cases focus on the risks and utilities to the consumer or user rather than on benefits to the product seller or third parties, the reporters agreed, and no one disagreed. In the next draft the reference to "a broad social perspective" was eliminated, and the description of the relevant factors was rewritten and an illustration added to make clear the limited, consumer-oriented nature of the risk-utility test.These changes were retained through successive drafts without remark or dissent and appear with only minimal editing in the final adopted version of the Restatement Third:
The relevant factors include, among others, the magnitude and probability of the foreseeable risks of harm, the instructions and warnings accompanying the product, and the nature and strength of consumer expectations regarding the product, including expectations arising from product portrayal and marketing. . . . the likely effects of the alternative design on production costs; the effects of the alternative design on product longevity, maintenance, repair, and esthetics; and the range of consumer choice among products are factors that may be taken into account. . . . evidence of the magnitude and probability of foreseeable harm may be offset by evidence that the proposed alternative design would reduce the efficiency and utility of the product. . . . On the other hand, it is not a relevant factor . . . that the imposition of liability would have a negative effect on corporate earnings or would reduce employment in a given
industry.
As the last sentence of this quote makes clear, the references to the "likely effects ... on production costs" and the "efficiency and utility of the product" refer only to the impact on consumers' utility, rather than to aggregate social utility in the economic efficiency sense.