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.