Strict Product Liability in California

Product liability claims enable injured consumers to recover damages against the responsible parties involved at any step of the product manufacturing, distribution, or retail process. In comparison to standard personal injury claims – often based on a theory of negligence – product liability claims in California are generally based on a theory of strict liability, though elements of negligence theory have, in fact, made their way into California strict product liability law.

What is strict liability?

Strict liability does not require that the plaintiff demonstrate the defendant’s negligence. Simply put, under strict liability, if a plaintiff has been injured and that injury was caused by the defendant’s conduct – whether that conduct was negligent or not – the defendant will be found liable for the plaintiff’s injuries.  Though strict liability appears at first glance to unfairly shift the cost and risk burden onto businesses and creators, strict product liability law is intended to equalize the substantial financial, legal, and resource asymmetries that exist between manufacturers, distributors, and retailers and the consumers that they serve.  In other words, it is beneficial to society that commercial defendants absorb the legal costs of strict liability, as they are the best equipped to do so.

Despite these efforts to equalize the playing field for consumers injured by defective products, product liability claims are much more complicated, and fraught with additional difficulties, than standard, negligence-based personal injury claims.  Commercial defendants can and do often throw significant legal resources at product liability plaintiffs to ensure that other plaintiffs are discouraged from litigating their own claims.  As a result, success in product liability requires the aid of a plaintiff’s-side attorney who is skilled and experienced in litigating against commercial defendants.

Under strict product liability, there are essentially three types of claims, each of which requires that the plaintiff prove different elements to succeed: 1) manufacturing defect claims, which involve a defect in a specific item produced; 2) design defect claims, which involve a defect in the design of an entire product line, rather than an individual item; and 3) failure to warn claims, which involve the defendant’s liability for inadequately warning the plaintiff about the hazards of using the product-at-issue, thus exposing the plaintiff to excessive and unexpected risk of harm.

Before we consider each of these three types of product liability claims, however, it is worth reviewing some commonalities between the various claims – specifically, the issue of the plaintiff’s use of the product having been reasonably foreseeable.

Reasonably Foreseeable Product Use

In claims involving defective products, even though the plaintiff was injured as a result of using the product, it is important that the plaintiff have used the product in a manner that was either intended or a reasonably foreseeable use of the product.

For example, the Q-Tip product is not intended for use as an ear cleaner, but given that the non-intended use is common and widely known, such use would likely be considered a reasonably foreseeable use of the product.

If a manufacturer is aware of a reasonably foreseeable, non-intended use of one of their products and such use presents additional hazards (compared to the intended use), the manufacturer may either minimize the hazard of such use (by re-designing the product, or perhaps by manufacturing the product differently) or by giving proper warning to buyers of the hazards involved.

Manufacturing Defect Claims

In product liability claims involving manufacturing defects, the plaintiff asserts that the product was defectively manufactured as compared to other products in the same line. Specifically, the plaintiff asserts that the particular unit or units that injured them were defectively manufactured such that they presented an additional risk of harm, and that the harm actually caused was a result of said manufacturing defects.

To succeed in a manufacturing defect case, the plaintiff must show that: 1) the defendant manufactured, distributed, or sold the product-at-issue; 2) the product contained the relevant defect when it left the defendant’s possession; 3) plaintiff was injured; and 4) plaintiff’s injuries were substantially caused by the product’s manufacturing defect.

Design Defect Claims

In product liability claims involving supposed design defects, the plaintiff asserts that the product was defectively designed – and the issue is thus present in all of the same products.  As such, the effects of the defective design may be more easily replicable than the effects of defective manufacture.  In reality, however, defective design claims are quite complicated to litigate as they necessarily involve the extensive use of experts on both the plaintiff’s-side and defendant’s-side.  As commercial defendants typically have extensive financial resources, and perhaps more importantly, access to key industry experts, it can be an uphill battle to prove that the defendant’s product was defectively designed, and further, that the defective design was the cause-in-fact of the plaintiff’s injuries.

In California, two tests see frequent use in assessing defective design product liability claims: the consumer expectations test and the risk-utility test (otherwise known as the risk-benefit test).  Plaintiffs involved in defective design product liability litigation should be prepared for the possibility that their claim will be considered under both the consumer expectation and risk-utility tests.

The Consumer Expectations Test

The advantage of the consumer expectations test is that it is easy to understand from the laymen’s perspective.  Under the consumer expectations test, a product’s design will be deemed defective if it fails to perform as safely as an ordinary consumer would expect it to perform.  Because the defectiveness of the design in the consumer expectations test is dependent on popular intuition as opposed to raw data and industry qualifications, the value of expert testimony is minimized substantially.  To an extent, the consumer expectations test is beneficial to the plaintiff as it evens the playing field by minimizing the importance of industry and design experts.

The Risk-Utility Test

Under the risky-utility test, once the plaintiff proves that the defective product design caused their injuries, the burden of proof shifts completely to the defendant.  The defendant has to either show that the utility of the "defective" product design outweighs the risk of the design.  If the defendant cannot show that the utility outweighs the risks, then the plaintiff will win the case.

Unlike the consumer expectations test, which is almost entirely subjective (depends on the subjective intuitions of ordinary consumers as to the safety of the product), the risk-utility test attempts to incorporate some semblance of objective analysis.  In showing that the utility (otherwise known as the benefits) outweighs the risks, or vice-versa, counsel for each side will argue the balance of relevant factors.  Relevant factors include the risk of harm and seriousness of such harm, the feasibility of an alternative design, and the disadvantages inherent to any safer alternative designs.

Failure to Warn of Hazards

Under California strict product liability, a defendant who is aware that consumers are using their product in a reasonably foreseeable manner that exposes them to a risk of harm must warn those consumers of the risk of harm.  In doing so, the defendant’s warning is expected to alter the behavior of consumers so that the potential harm can be avoided.  If the behavior of a plaintiff would not have changed – and thus, the injury would not have been avoided – when given the warning, then the defendant’s failure to warn cannot be used to hold them liable for the plaintiff’s injuries.  The defendant can only be held liable for a failure to warn when such failure could have altered the outcome.

Another concern worth noting is that of knowledge, from the perspective of both the commercial defendant and the plaintiff-consumer.

Defendants are only required to warn of potential risks of harm that an ordinary consumer would not have otherwise surmised.  In other words, if a typical consumer would have become aware of the risk of harm on his or her own, then the defendant cannot be held liable for failing to warn of an already-known hazard.

Similarly, whether the defendant should have been aware of their own product’s risk of harm is a determination based on the average skill and knowledge of an industry expert.  For example, an electric fan producer that has built a defective fan posing an additional risk of harm would be held to the standard of the average skillful, knowledgeable electric fan industry expert.  If an expert would have become aware of the additional risk of harm from the defective fan, then the defendant is on-the-hook for such knowledge.  On the other hand, if an expert would not have become aware of any additional risk of harm or hazards, then the defendant cannot be held liable for failing to warn of risks that even an industry expert would not have themselves surmised.


For a free consultation with an experienced, highly successful personal injury attorney, call the Law Offices of Brian J.  O’Grady at (650) 318-6131 to set up your appointment today.