Achieving True Strict Product Liability (But Not for Plaintiffs with Fault)
University of Michigan Journal of Law Reform, Forthcoming
38 Pages Posted: 26 Sep 2022 Last revised: 10 May 2023
Date Written: September 19, 2022
Abstract
Under modern tort law, the strict product liability cause of action does not impose true strict liability. This Article suggests that this development can be traced to an analytical difficulty: How to prevent a plaintiff with fault from being able to take advantage of the strict liability standard? Courts have not developed a satisfactory doctrine that both imposes true strict product liability on manufacturers while simultaneously preventing plaintiffs with fault from recovery on this claim. In the absence of a better idea, courts have (mostly) retreated from a true strict product liability standard. This Article offers a solution to this analytical riddle: A simple change to the current comparative fault jury instructions would allow jurisdictions to impose strict product liability on manufacturers while simultaneously preventing plaintiffs with fault from recovering on a strict product liability claim. This is all that is necessary for jurisdictions that are inclined to put the “strict” back in the strict product liability cause of action.
Keywords: torts, product liability, strict liability, strict product liability, Escola, Traynor, defect, design defect, manufacturing defect, warning defect, Meier
Suggested Citation: Suggested Citation