Talk:Product liability

added basic rationale of strict liability. tried to balance the argument, which was one-sided in favor of negligence. there is a sensible reason almost all jurisdictions have moved to strict liability. --Rmalloy 23:49, 30 September 2006 (UTC)

Jimenez is about extension of strict liability to fixtures

Some anonymous editor (probably not a lawyer) tried to change the summary of Jimenez to refer to personal property instead of real property. That is incorrect. Jimenez did extend strict liability to products installed as fixtures on real property. --Coolcaesar 17:02, 21 September 2007 (UTC)

This article is a mess

The biggest problem is that design defect, manufacturing defect, and failure to warn are discussed under negligence. The Restatement (Third) of Torts, Products Liability, does mention those categories, but focuses on them separately and apart from the labels of strict liability and negligence. The confusing relationship between strict liability/negligence (that is, the underlying traditional causes of action) versus the more recent development of these three types of product defects as developed in the case law (particularly in California) needs to be better explained in this article. I would do it myself but I'm way too busy with depositions and motion practice. I'm sure there must be some other Wikipedia editor out there in law school who can get a hold of the Restatement Third and straighten this article out! --Coolcaesar 23:36, 21 September 2007 (UTC)

History section is weak

Why is there no mention of Cardozo and his contributions to product liability theory (such as in MacPherson v. Buick Motor Co.)? This article could use some revision in that regard. --Eastlaw (talk) 10:24, 10 December 2007 (UTC)

Rationale for and debate over strict liability - weasel words

Starting to think about a cleanup of this article. What is the problem with this section? It could do with a copyedit but it looks balanced to me. Couldn't see any weasel words. Can somebody be more explicit? Cutler (talk) 08:58, 17 April 2008 (UTC)

Cleanup

I think the best structure for a cleaned up article would be:

• Head para
• Theory (Taschner is a good ref here [1])
  • Allocation of costs
  • Strict v. fault-based
  • Development risks defence/ State of the art defense
• History
  • Winterbottom v. Wright
  • MacPherson v. Buick
  • Donaghue v. Stevenson
  • Grant v. Australian Knitting
  • US developments up to 2nd Restatement of Torts
  • Pearson commission
  • EU Directive 85/374/EC
  • Further US developments
  • Sytems derived from US and EU: Switzerland, Australia, Japan (hemispheric bias solved!)
  • ...
• US law
• EU law
• Australian law
• Japanese law
• References
• Bibliography

— er that's it. Cutler (talk) 23:48, 17 April 2008 (UTC)

Cutler I'm with you with the proposed structure I think it goes to the point and address the issue of the biasing. Others can start adding special considerations of each country, but mainly it sorts out the huge mess :). Marianolu (talk) 18:00, 4 November 2008 (UTC)

I would add some discussion about the academic controversy over the area. Philipson/Sun/Goldman argue that current product liability law is inefficient and raises prices without improving safety. THF (talk) 23:01, 13 February 2010 (UTC)

Insurance section smells fishy

I know that additional insured clauses are a common provision in construction contracts between general contractors and subs, but I've never heard of a manufacturer or distributor putting downstream distributors and retailers as additional insureds on its CGL. I've seen lots of reported cases where insurers of construction contractors fight over which insurer has which contractor as an additional insured, but I've never seen insurers of manufacturers, distributors, and retailers doing the same thing. If someone doesn't provide a source for that, I'm deleting the whole section soon. It smells suspiciously of original research.--Coolcaesar (talk) 20:19, 13 February 2010 (UTC)

Okay, no one's defending that garbage, out the door it goes. --Coolcaesar (talk) 21:57, 28 February 2010 (UTC)

Insurance and Indemnification section

My practice does not involve insurance law but I am reasonably familiar with it. I know that some of the things in this section are correct. My knowledge simply doesn't extend to the rest of it but the author certainly appears to know what s/he is talking about. I was led here by this article Additional insured which I found to be informative. It was written by the same author.

This most certainly isn't "laughably incorrect garbage", although I agree that it is unsourced. That's what those "citation needed tags" are for. I'll try to find out how to put one in to save you the trouble. —Preceding unsigned comment added by JustPassingThrough123 (talk • contribs) 01:23, 2 March 2010 (UTC)

I just ran the search on Google Books because that section still smells fishy. It's also not written very well and appears to have been drafted by either a nonlawyer, a paralegal, or a lawyer in one of those jurisdictions where anyone who can sign his name can pass the bar exam. As I suspected, there are LOTS of sources talking about the obligation of a subcontractor to indemnify the general contractor, but nothing talking about an upstream manufacturer's obligation to indemnify downstream distributors and retailers. I'm pulling that section until someone can provide a citation to a reliable source. See core policy Wikipedia:Verifiability. --Coolcaesar (talk) 14:49, 12 April 2010 (UTC)

Dr. Daughety's comment on this article

Dr. Daughety has reviewed this Wikipedia page, and provided us with the following comments to improve its quality:

This is a pretty nice article. One concern I have is that it really only considers manufacturing defects and strict liability for those defects. It does not spend time (except to mention as a type of defect) on design defects (where duty-based liability is used; this is a form of negligence - an example was the Pinto) - or on marketing defects (also approached as a form of negligence, since often courts are concerned with what a reasonable person should have inferred from any cautions or warnings). Moreover, there has been some push-back towards no liability so as to reduce liability-related costs; see Polinsky and Shavell, Harv Law Rev, 2010. One other comment. Under the types of liability, I think the discussion of the types of defect is somewhat limited and somewhat inaccurate and misses the types of tradeoffs often recognized as legal. For example, the article states that "Manufacturing defects are those that occur in the manufacturing process and usually involve poor-quality materials or shoddy workmanship." This can lead to a manufacturing defect, but defects can arise due the cost of detection far exceeding the potential cost of harm, not shoddy workmanship or the use of poor-quality materials. We don't expect a bottler to inspect every bottle of soda produced (they may be producing thousands per week), but to have quality control procedures that provide bottles of soda that should be drinkable. Since the customer is not in a position to test each item on the shelf of the store before buying it, any foreign material that gets into the bottle of soda is a manufacturing defect; if it causes harm, the manufacturer is liable under strict liability. Perfectly pure peanut butter would be extraordinarily expensive, so there is an acceptable level of contaminants acceptable unless they cause a harm, in which case the harmed customer is to be compensated).

We hope Wikipedians on this talk page can take advantage of these comments and improve the quality of the article accordingly.

Dr. Daughety has published scholarly research which seems to be relevant to this Wikipedia article:

• Reference : Andrew F. Daughety & Jennifer F. Reinganum, 2011. "Cumulative Harm and Resilient Liability Rules for Product Markets," Vanderbilt University Department of Economics Working Papers 1125, Vanderbilt University Department of Economics.

ExpertIdeasBot (talk) 15:35, 19 May 2016 (UTC)

Strict Liability & Geographic Subsections

In my opinion, the section, Rationale for and debate over strict liability should be moved to Strict liability.

I think the geographic subsections should also be reorganized to make the article less U.S.-specific, and to avoid the need to refer to the U.S. section to understand the E.U. material. Arllaw (talk) 23:28, 29 September 2017 (UTC)

strict liability vs. negligence

For this edit by IP 108.21.186.75, I believe the material added is correct, but it would be nice if it was sourced. Perhaps it is sufficiently covered in the text below it that it needs no source. --David Tornheim (talk) 02:37, 5 October 2018 (UTC)

It should be sourced, and should be updated to reflect the changes in product liability law that have been implemented since the 1990's. Arllaw (talk) 15:06, 5 October 2018 (UTC)

A separate History section doesn't make sense

There is a reason why product liability cases are always traditionally taught in a certain sequence in first-year torts courses. The history of strict liability for defective products is part and parcel of the concept, and to understand how we got there, one needs to first understand what is negligence and what is wrong with it (from a plaintiff's point of view). Otherwise it makes little sense to laypersons why a manufacturer of an automobile who runs down a pedestrian due to allegedly defective brake discs should be subject to strict liability on top of negligence, while the driver who was also allegedly negligent in not slamming on the brake pedal two seconds earlier is subject only to liability in negligence. Any objections before I put that history discussion back where it belongs? --Coolcaesar (talk) 08:27, 26 November 2018 (UTC)

I think part of the goal of the edit by Arllaw (talk · contribs) was to split out history so that it wasn't so overwhelming and people could skip past it a bit - if you add it back, you might consider sectioning / pruning it into WP:SUMMARY style. II | (t - c) 08:39, 26 November 2018 (UTC)

A more complete history would not cover simply the origins of strict liability in the U.S., but would cover subsequent developments in the law, the significant changes that occurred due to "tort reform" in the 1990's, and the present state of the law. The section as written is incomplete, even as a history of strict liability, and is not just U.S.-centered, but California-centered. Given that the California history is mentioned in a subsequent section that addresses the laws of other nations, placing that material under Theories of Liability:Strict liability tends to both bloat the section which presently (like the other parallel subsections) primarily summarizes that concept, it makes it more difficult to find that material when trying to understand later references.

That said, the organization of the article, including a later, separate section addressing the "Debate over strict liability laws", could be improved. That 'debate' might be better placed in the Strict liability article. Arllaw (talk) 20:29, 27 November 2018 (UTC)

That doesn't justify turning the article into an incoherent mess which now starts in medias res with text which came from the middle of a narrative that I drafted. And I've litigated over 100 product liability cases, including one which is quite well-known nationwide among experienced tort litigators. If I can barely follow this, it's very unlikely that someone with no legal training can understand it.

In any event, I just got to a law library last week and looked through several hornbooks to figure out how the East Coast product liability cases relate to the West Coast cases. It's hilarious how one of the hornbooks highlights how the New Jersey Supreme Court courageously laid the foundation for Greenman yet was too cowardly to use the magic words "strict liability." Unfortunately, I'm overwhelmed with work for the next four months, so I won't have the time until May to add a summary of everything I found to this article. --Coolcaesar (talk) 06:36, 21 January 2019 (UTC)

structure is (still) US centric

The structure of the article is a historical section and current status of product liability in the US, after which a "worldwide" section briefly introduced the rest of the world. That struck me as so strange (the US is also part of worldwide, and this is not a US encyclopedia), that I have restructured it to make country/region specific sections. I have been bold to do so, as the current way was so much US centric that it needed immediate change. The problem however remains that the whole structure is still US based. The "European" section now is structured to note only the differences and developments based on US law, although also before in European states product liability concepts existed. How can we therefore make a more country-neutral overall article? Ideas are welcome. L.tak (talk) 21:49, 27 January 2019 (UTC)

I disagree. Since the landmark MacPherson v. Buick Motor Co. decision just over 100 years ago, the United States has been the global leader in product liability litigation. All major treatises on the subject agree on this. For better or worse, no other country has been able to produce judges with the courage and creativity of Benjamin N. Cardozo and Roger J. Traynor.

One mark of their legacy is that it didn't even hit the news when a San Diego jury awarded a total of $7.4 million in damages for a personal watercraft-related injury which was subsequently affirmed in full on appeal. Those kinds of verdicts are so routine as to be rarely newsworthy in the United States. Nowadays, to be newsworthy, one has to get a multi-billion-dollar verdict. But such massive verdicts are entirely unheard of elsewhere, where product liability either doesn't exist as a distinct body of law, or is so difficult to prove as to be of little use. --Coolcaesar (talk)

I am not disputing that the US had a big mark in this subject (both historically and presently), but that doesn't mean that the article should be build up as a "US-default"-text, where all developments elsewhere are construed as based on and compared to the US context. That is too much of a US point of view. As said: ideas are welcome, maybe we should make a small US section (comparable to a section on Germany or so, or on the size of the EU directive text) and make a separate article on the Product liability in the US? L.tak (talk) 22:46, 27 January 2019 (UTC)

"Too much of a US point of view?" Excuse me? Product liability law outside of the United States is a reaction to the revolution that occurred in the United States during the 20th century, and the prior article version was structured to accurately reflect that fact. Every major treatise (including the ones I just reviewed recently as separately discussed above) is crystal clear on this. Then and now, Escola and Greenman were revolutionary cases that went far beyond the way that anyone in any country had previously conceptualized of product liability.

In the vast majority of countries other than the United States, a manufacturer can still get away with killing or maiming product consumers and not having to pay them any compensation, or with paying them cents on the dollar (relative to the true value of consumers' injuries). American lawyers are routinely shocked to discover the low dollar value of product liability injuries elsewhere relative to what those injuries would be worth in front of an American jury, including in countries that have adopted the Product Liability Directive. (One of the treatises I recently read mentioned this, and I've also seen this fact mentioned in other articles over the years.) Please do not rewrite an article if you do not have sufficient experience with the article's subject matter. --Coolcaesar (talk) 03:18, 28 January 2019 (UTC)

Also, keep in mind that you were editing a version of the article that had already been turned into an incoherent mess that's quite difficult for nonlawyers to follow (as discussed in the previous section), and you wandered into the middle of a debate over how to fix that mess. The last good version of the article that mostly made sense was this one on 1 August 2018. I was planning to make significant revisions in late May (when I go on vacation again) to incorporate a more thorough discussion of key East Coast cases that helped build the foundation for Escola, as well as the intellectual cowardice of the New Jersey Supreme Court and the New York Court of Appeals in refusing to go where the Supreme Court of California was willing to go. --Coolcaesar (talk) 04:19, 28 January 2019 (UTC)

The text above just shows how much you look at the US situation, and describe the rest of the world as variations on that country. While I agree the significant contribution the US made to this field (which should be mentioned), the fact that product liability is stricter there does not mean it merits extra space. From the looks of it, the August version was also the US-rest of the world system and in that sense coherent for a US law book with some extra info but not for an international encyclopedia. Let's hope you get the time in May to restructure a bit (I am really interested in the French and German [absence of?] product liability laws prior to the 1985 product liability directive, as well as the situation in large jurisdictions like India. Now I think of it: the wealth of information on the US could also be expanded, but only if farmed out to a separate article... L.tak (talk) 06:39, 28 January 2019 (UTC)

Again, I strongly disagree with your proposed revision, particularly the last sentence. If you had taken the time to become acquainted with the vast literature on this topic, you would realize that you are proposing to turn this article into something which would merely say that there is no law or very little law on this subject in most countries, and not actually explain what is product liability.

From a practical and pragmatic standpoint, the term of art simply has almost no substance outside of the American context. It is the American experiment which invested the idea of product liability with rich meaning beyond the general idea of suing people who manufacture, distribute or sell products. The many subtle nuances and distinctions of modern product liability law did not begin to emerge until people started to bring those lawsuits frequently in the United States during the 20th century. Today, those nuances are still largely litigated and developed only in the United States. --Coolcaesar (talk) 21:17, 3 February 2019 (UTC)

The view that the US still starts things for the world to follow is strongly US-centric, as is the notion that the development of the US is the most important development. For example, there is also a vast body on this topic by CJEU, which also contributed to the development. I am sure we will be able to come to some solution here though that does justice to the pioneering work in the US without becoming a "US and the rest of the world"-type of article. L.tak (talk) 08:30, 6 February 2019 (UTC)

I knew I had seen an academic article on this somewhere. Turns out I saw it back in 2014. I just rediscovered I had a copy I had downloaded from JSTOR that year sitting around in one of my archive folders all along. The article is available from JSTOR here (behind their free registration wall). This paper is a very elegant, evenhanded treatment of the subject by Mathias Reimann; he originally presented it in 2002 at the International Congress of Comparative Law in Brisbane and then got it published in a journal in 2003. He describes how product liability has become "a global phenomenon," then delves at length into why despite that, product liability litigation is still found largely only in the United States and is virtually nonexistent in "the Rest of the World" (he actually capitalizes the phrase like that to dramatically emphasize the difference). --Coolcaesar (talk) 16:19, 8 May 2020 (UTC)

Neutral POV

I noticed that an unregistered user added a POV tag to the article, questioning its neutrality. Any thoughts? Arllaw (talk) 16:10, 18 March 2019 (UTC)

It's been almost a year since the tag has been discussed, and only by Arllaw to ask why it's there. I think it can go. 66.76.174.166 (talk) 04:55, 3 February 2020 (UTC)

Another reason why this article needs to be reverted back to the last good version

User:L.tak just tried to take out the word "boldly." That word is entirely appropriate because it followed in logical sequence after a discussion which explained how many courts were conservative and chicken for many years. Then Roger Traynor came along and turned the world upside down. Unfortunately, as I have previously pointed out, another editor was foolish enough to butcher that historical discussion (in a way that borders on vandalism) so that what was a logical, lucid discussion of the evolution of product liability law no longer makes much sense. --Coolcaesar (talk) 17:39, 8 February 2020 (UTC)

The reason I removed it had nothing to do with any of the issues regarding this article (we share the concerns, but don't agree on the way forward). The reason for removing the word "boldly" is that it is by definition opinionated. One could also argue that a justice simply applies/shapes the law in the way he/she deems appropriate. Whether it is boldness, or "sense of duty" (or even: activism) is an evaluation which by definition is thus a neutral fact... Do you have an alternative that addresses my concern regarding this word? L.tak (talk) 20:00, 8 February 2020 (UTC)

In my opinion the article includes some content and language within the article that falls within the realm of opinion and editorializing and should be cleaned up, and certainly there is need to add reliable sources to the debate section, but I don't presently have the time or inclination to try to clean up this article if the process is likely to trigger controversy. If any editor or editors want to take the lead, I will try to participate in any associated discussion. Arllaw (talk) 02:36, 10 February 2020 (UTC)

Finally started rewriting this mess

Now the article finally has a good treatment of the evolution of Anglo-American common law on this issue. Next, I need to find the time over the next month or so to finish summarizing the story as to the international evolution of product liability law in response to Greenman. The Reimann article (see above) does a good job of summarizing most of the key data points. --Coolcaesar (talk) 02:34, 19 May 2020 (UTC)

I just noticed that User:L.tak removed neutral paragraphs which quoted extensively from and were fully cited and linked to Reimann's 2003 journal article and 2015 book chapter. Those are verifiable, reliable sources written by an comparative law expert who obtained his doctorate in law at the University of Freiburg, became a tenured professor of law at Michigan Law, and has been publishing books and articles on comparative law on both sides of the Atlantic Ocean for 30 years. Unless I see a reasoned explanation in the next couple of days for why those paragraphs are not an accurate explanation of why product liability litigation is so much rarer in Europe, I'm reinserting those paragraphs. And if there is a counterargument to Reimann's assessment to be made by citation to reliable sources, then the correct approach is to summarize each side in a neutral fashion (as I just did for Reimann v. Howells/Owen on the issue of the real world impact of the Restatement Third treatment of design and warning defects). --Coolcaesar (talk) 21:58, 31 May 2020 (UTC)

@Coolcaesar: I restored it. It appears to be a helpful addition to me. --David Tornheim (talk) 22:22, 31 May 2020 (UTC)

Challenging multiple edits on 22 December 2020 by User:L.tak

I'm challenging all three as problematic and plan to revert them next week.

The first one introduced over a dozen logic, grammar, and stylistic errors. I don't have time to go into all of them right now, but the poorly written references to "evidence system" (actually, "evidentiary system"), "self executable" (actually, self-executing) and "judicial check" (actually, judicial review) reveal a lack of understanding of the fundamental difference between discovery and evidence. Discovery is how one finds evidence. They are related but distinct concepts. The "" tag on punitive damages is entirely unnecessary in light of the earlier parts of the article, which already explain how American courts award large amounts of punitive damages on rare occasions.

The second one is problematic because of the deletion of the observation (cited to Reimann's 2003 article) about the failure of the Product Liability Directive to expressly adopt the three-way distinction between defects that was already developing in U.S. case law and academic literature and was ultimately recognized in the Third Restatement. That is a key distinction between American and European product liability law.

The third one is problematic because of the deletion to the reference to the lack of a jury trial. Professor Reimann is very clear in the cited source about the importance of a right to a jury trial and how the lack of that right explains smaller caseloads outside of the United States. --Coolcaesar (talk) 17:25, 12 January 2021 (UTC)

This entire article could use a top-to-bottom rewrite. Significant parts are written like a personal essay as opposed to an encyclopedic article. One might be forgiven to infer that the references to Mathias Reimann are intended to promote him as opposed to the neutral use of his work by editors who are trying to support the assertions made within the article; he's not the only scholar who is name-dropped without any establishment of why their opinions should be singled out or why they specifically should be named. The section "Product Liability by Country" is about the United States; sorry, but "Europe" is not a country nor does "other countries" make up for the fact that there is no actual country-by-country discussion. And there are other issues, which we could perhaps discuss in detail if somebody wants to take the initiative to fix the article. 2601:401:501:CFD0:70BB:EBA9:44E8:5836 (talk) 03:32, 18 January 2021 (UTC)

Earlier versions of this article did not specifically highlight in prose that Professors Reimann and Howells were making specific assertions. User:L.tak was responsible for adding such qualifiers, in an apparent attempt to paint those professors as outliers. Which, of course, was entirely meritless since Professors' Reimann and Howells's CVs establish that they are both eminently qualified to make broad generalizations about comparative product liability law. I have no problem with removing the references to specific professors out of the article's prose (with the exception of the important references to James and Prosser) and letting the footnotes speak for themselves.

As for the critique that this article reads like an essay, I strongly disagree. This article neutrally and concisely summarizes the chaotic development of one of the most important areas of modern tort law. Unless you can point to any specific sentence or sentences and say why it reads as unencyclopedic, I believe that critique is frivolous.

Finally, I'm uncertain as to why further country-by-country detail is needed. As Reimann has already explained (and for which I cited him in the article), most product liability statutes outside of the United States are useless from a practical standpoint because local procedural law was not adequately reformed to support adequate discovery to enable consumers to realistically enforce their rights against manufacturers and importers. Without access to evidence of a systemic defect (i.e., evidence this exact kind of injury keeps happening again and again in a manner that should be preventable), it's too easy in too many countries for the manufacturer to characterize the plaintiff's injury as a freak accident or the result of product misuse. That explains why there are so few specialists in product liability law in such countries -- because no one is going to become a specialist in working on lawsuits no one brings or defends -- and hence no one has bothered to meaningfully expand the country-by-country discussion in this article beyond the United States and Europe for over 15 years. --Coolcaesar (talk) 06:01, 18 January 2021 (UTC)

After waiting patiently for a month, I have seen no effort by User:L.tak to advance any defense of the edits above. I am going to revert them forthwith. --Coolcaesar (talk) 19:15, 24 February 2021 (UTC)

Wap 4

H8 2405:201:E00A:2FC:98F6:4A49:C30C:A978 (talk) 13:48, 13 October 2022 (UTC)