'Danger is My Business': The Right to Manufacture Unsafe Products

Abstract

While no one would dispute that safety is a desirable objective, it may not always be an absolute priority. Rather, in some cases, other societal interests such as personal autonomy, consumer choice, product cost, and performance may trump legitimate safety goals. This is reflected in some of the doctrines and defenses that have evolved to protect the producers of unsafe products against tort liability. Some of these doctrines, such as those determining liability for the producers of optional safety equipment, inherently dangerous products, products with obvious hazards, and prescription drugs and medical devices, are part of the law of products liability. Other doctrines, such as the regulatory compliance defense and the contract specification defense, are aspects of the broader law of torts. Finally, a few of these doctrines, such as federal preemption and the government contractor defense, are rooted in principles of federal supremacy.

Keywords: torts, products liability, products, manufacturing, unsafe, personal autonomy, consumer choice, product cost, hazard, obvious hazard, drugs, prescription drugs, medical device, regulatory compliance, federal preemption, safety, defective, defenses, cigarettes, alcohol, Restatement, social interest

JEL Classification: K13