The Misuse of Product Misuse: Victim Blaming at Its Worst

Abstract

This paper addresses the legal consequences that surface when a consumer uses a product in a manner not specifically intended by that product's designer or manufacturer. If a product is used in a reasonably foreseeable manner, the fact that the use is at odds with a manufacturer’s intention should not be a basis to deny tort liability or limit the regulatory options of the Consumer Product Safety Commission. If a product proves to be unsafe, defective, dangerous, or otherwise hazardous to users and consumers, use patterns should not be the primary determinant in assessing regulatory and common law sanctions or consequences. While producers may wish to limit tort liability or regulatory impact by characterizing as wrongful all uses not fully consistent with specified instructions, limiting tort liability or regulatory impact is indefensible, inhumane, and at odds with common law tort principles and the clear purposes of the Consumer Product Safety Act. Penalizing consumers for uses that are reasonable but not expressly intended is little more than victim blaming. A legal culture that scapegoats consumers is justly seen as pathological regulatory capture. Ramped up consumer misuse standards re-ward those who create risks and punish those who are harmed. That cannot possibly be the goal of the common law or the legacy anticipated when the Consumer Product Safety Commission was formed nearly a half-century ago.