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PRODUCT LIABILITY
In Texas and elsewhere, the earliest cases
imposing no-fault liability on manufacturers and
sellers involved contaminated food. Difficulties
in proving a food preparer negligent prompted
the courts to authorize recovery under theories
other than negligence. Most of these early food
cases based liability on a form of breach of
implied warranty. However, the basis was neither
the seller's representations to the buyer, nor a
contractual warranty, but rather a warranty
imposed as a matter of public policy.
Texas adopted strict liability in tort for
product defects in 1967 in the landmark cases of
Shamrock Fuel & Oil Sales Co. v. Tunks and
Mckisson v. Sales Affiliates, Inc. Although this
step was less drastic than it might appear
because of existing law on impure food, it
formulated for Texas a completely new remedy for
product related injuries.
The most important limitation on the seller's
exposure is that the product must in fact be
defective so as to render it unreasonably
dangerous. A manufacturer or distributor of
products is not required to be an insurer
against all product-related accidents. A
manufacturer is not required to design the
safest possible product. It is not required that
the design adopted be perfect, or render the
product accident-proof or incapable of causing
injury, nor is it necessary to incorporate the
ultimate safety features in the product. There
are many ways to injure a person or property
while using some manufactured product, but only
those attributable to a product defect may form
the basis for a strict tort liability cause of
action.
There are three types of actionable product
defects: manufacturing defects (flaws), design
defects, and "marketing defects" (warnings and
directions). The first two are actually defects
in the product. A manufacturing defect is an
unreasonable dangerous deviation, usually a flaw
in materials or workmanship, from the standards
established by the manufacturer for similar
products. A defect arising from the design
process makes every unit in the product line
unreasonably dangerous. A marketing defect
reflects not a problem with the product per se,
but the absence of adequate warnings of the
risks of harm and instructions for safe use.
Without these, the product as marketed is
unreasonably dangerous, either for the one who
is unable to make an informed choice as to
whether to use a useful product that has risks
associated with it, or for the user who does not
know how to avoid dangers incident to improper
use of the product. A manufacturer's duty to
warn of risks inherent in its product is based
on the policy that the user is entitled to
information necessary to make an intelligent
choice as to whether the product's utility or
benefits justify exposing himself or herself to
a risk of harm.
The product defect as a basis for recovery
shifts the focus from that in a negligence
action. The care taken by the supplier of a
product in its preparation, manufacture, or
sale, is not a consideration in strict
liability, whereas it is the ultimate question
in a negligence action. Strict tort liability
focuses on the product itself and determines
whether it is defective. Negligence evaluates
the acts of the manufacturer and determines if
it exercised ordinary care in design and
production.
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