Editing Product liability (section)

===United States===

The United States was the birthplace of modern product liability law during the 20th century, due to the 1963 ''Greenman'' decision which led to the emergence of product liability as a distinct field of private law.<ref name="ReimannPage251" /><ref name="Goldberg_Page_270">{{cite book |last1=Goldberg |first1=John C. P. |last2=Zipursky |first2=Benjamin C. |title=The Oxford Introductions to U.S. Law: Torts |date=2010 |publisher=Oxford University Press |location=Oxford |isbn=9780195373974 |page=270 |url=https://books.google.com/books?id=KCqai3JPqxEC&pg=PA270 |access-date=27 January 2024}}</ref>  In 1993, it was reported that "[n]o other country can match the United States for the number and diversity of its product liability cases, nor for the prominence of the subject in the eyes of the general public and legal practitioners."<ref name="Howells">{{cite book |last1=Howells |first1=Geraint |title=Comparative Product Liability |date=1993 |publisher=Dartmouth Publishing Company |location=Aldershot |isbn=9781855210783 |page=201}}</ref>  This was still true as of 2015: "In the United States, product liability continues to play a big role: litigation is much more frequent there than anywhere else in the world, awards are higher, and publicity is significant."<ref name="ReimannPage260">{{cite book |last1=Reimann |first1=Mathias |editor1-last=Bussani |editor1-first=Mauro |editor2-last=Sebok |editor2-first=Anthony J. |title=Comparative Tort Law: Global Perspectives |date=2015 |publisher=Edward Elgar Publishing |location=Cheltenham |pages=250–278 |chapter-url=https://books.google.com/books?id=Q5FHCgAAQBAJ&pg=PA260 |access-date=1 May 2020 |chapter=Product liability|isbn=9781784718138}}</ref>

In the United States, the majority of product liability laws are determined at the state level and vary widely from state to state.<ref>{{cite journal |last1=Logan |first1=Michael A. |last2=Mayer |first2=Zach T. |last3=Fisher |first3=Brian J. |title=Products Liability: Protection for the "Innocent" Seller in Texas |journal=National Law Journal |date=5 August 2010 |url=https://www.natlawreview.com/article/products-liability-protection-innocent-seller-texas |access-date=11 August 2018}}</ref> Each type of product liability claim requires proof of different elements in order to present a valid claim.

====History====
For a variety of complex historical reasons beyond the scope of this article, [[personal injury]] lawsuits in tort for monetary damages were virtually nonexistent before the [[Second Industrial Revolution]] of the 19th century.<ref name="Gifford">{{cite journal |last1=Gifford |first1=Donald G. |title=Technological Triggers to Tort Revolutions: Steam Locomotives, Autonomous Vehicles, and Accident Compensation |journal=Journal of Tort Law |date=2018-09-25 |volume=11 |issue=1 |pages=71–143 |publisher=Walter de Gruyter GmbH |issn=2194-6515|doi=10.1515/jtl-2017-0029|s2cid=158064216 |url-access=subscription|url=https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2594&context=fac_pubs }}  The copy available through the direct link from the article title is the preprint version. The final version with as-published pagination, linked from the [[digital object identifier]], requires a subscription to the [[De Gruyter]] database.</ref>  As a subset of personal injury cases, product liability cases were extraordinarily rare, but it appears that in the few that were brought, the general rule at early common law was probably what modern observers would call no-fault or strict liability.<ref name="Gifford" />  In other words, the plaintiff only needed to prove causation and damages.<ref name="Gifford" />

Common law courts began to shift towards a no-liability regime for products (except for cases of fraud or breach of express warranty) by developing the doctrine of ''[[caveat emptor]]'' (buyer beware) in the early 1600s.<ref name="Owen">{{cite book |last1=Owen |first1=David G. |title=Products Liability Law |date=2015 |publisher=West Academic |location=St. Paul |isbn=9780314268396 |pages=14–22 |edition=3rd}}</ref> As personal injury and product liability claims began to slowly increase during the early [[Industrial Revolution|First Industrial Revolution]] (due to increased mobility of both people and products), common law courts in both England and the United States in the 1840s erected further barriers to plaintiffs by requiring them to prove [[negligence]] on the part of the defendant (i.e., that the defendant was at fault because its conduct had failed to meet the standard of care expected of a reasonable person), and to overcome the defense of lack of [[privity of contract]] in cases where the plaintiff had not dealt directly with the manufacturer (as exemplified by ''[[Winterbottom v Wright|Winterbottom v. Wright]]'' (1842)).<ref name="Gifford" /><ref name="Owen" /><ref name="HowellsPage_205">{{cite book |last1=Howells |first1=Geraint |last2=Owen |first2=David G. |editor1-last=Howells |editor1-first=Geraint |editor2-last=Ramsay |editor2-first=Iain |editor3-last=Wilhelmsson |editor3-first=Thomas |title=Handbook of Research on International Consumer Law |date=2018 |publisher=Edward Elgar Publishing |location=Cheltenham |pages=202–230 |edition=2nd |chapter-url=https://books.google.com/books?id=codlDwAAQBAJ&pg=PA205 |access-date=31 May 2020 |chapter=Products liability law in America and Europe|isbn=9781785368219 }}</ref>  During the Second Industrial Revolution of the mid-to-late 19th century, consumers increasingly became several steps removed from the original manufacturers of products and the unjust effects of all these doctrines became widely evident.<ref name="Gifford" /><ref name="Owen" /><ref name="HowellsPage_205" />

State courts in the United States began to look for ways to ameliorate the harsh effects of such legal doctrines, as did the [[Parliament of the United Kingdom|British Parliament]].<ref name="Owen" /> For example, one method was to find implied warranties implicit in the nature of certain contracts; by the end of the 19th century, enough U.S. states had adopted an implied warranty of merchantable quality that this warranty was restated in statutory form in the U.S. Uniform Sales Act of 1906, which drew inspiration from the British [[Sale of Goods Act 1893]].<ref name="Owen" /><ref name="HowellsPage_205" />

During the 1940s, 1950s, and 1960s, American law professors Fleming James Jr. and [[William Lloyd Prosser|William Prosser]] published competing visions for the future of the nascent field of product liability.<ref name="White_Page160">{{cite book |last1=White |first1=G. Edward |title=Tort Law in America: An Intellectual History |date=2003 |publisher=Oxford University Press |location=Oxford |isbn=9780195139655 |pages=169–170 |edition=Expanded |url=https://books.google.com/books?id=cOK_4Ms3InoC&pg=PA169}}</ref><ref name="Kiely">{{cite book |last1=Kiely |first1=Terrence F. |last2=Ottley |first2=Bruce L. |title=Understanding Products Liability Law |date=2006 |publisher=Matthew Bender |location=Newark |isbn=0820561088 |pages=2–21}}</ref>  James acknowledged that traditional negligence and warranty law were inadequate solutions for the problems presented by defective products, but argued in 1955 those issues could be resolved by a modification of warranty law "tailored to meet modern needs," while Prosser argued in 1960 that strict liability in tort ought to be "declared outright" without "an illusory contract mask."<ref name="Kiely" /> Ultimately, it was Prosser's view which prevailed.<ref name="Kiely" />

=====Landmark legal cases=====

The first step towards modern product liability law occurred in the landmark New York case of ''[[MacPherson v. Buick Motor Co.]]'' (1916), which demolished the privity bar to recovery in negligence actions.<ref name="Gifford" /><ref name="Owen" /><ref name="Kiely" />  By 1955, James was citing ''MacPherson'' to argue that "[t]he citadel of privity has crumbled," although Maine, the last holdout, would not adopt ''MacPherson'' until 1982.<ref name="Owen" />

The second step was the landmark New Jersey case of ''[[Henningsen v. Bloomfield Motors, Inc.]]'' (1960), which demolished the privity bar to recovery in actions for breach of implied warranty.<ref name="Owen" /><ref name="Kiely" />  Prosser cited ''Henningsen'' in 1960 as the "fall of the citadel of privity."<ref name="Owen" /><ref name="Kiely" />  The ''Henningsen'' court helped articulate the rationale for the imminent shift from breach of warranty (sounding in contract) to strict liability (sounding in tort) as the dominant theory in product liability cases, but did not actually impose strict liability for defective products.<ref name="Kiely" />

The third step was the landmark<ref>White, Robert Jeffrey. "[http://www.thefreelibrary.com/Top+10+in+torts%3A+evolution+in+the+common+law.-a018526923 Top 10 in torts: evolution in the common law.]" ''Trial'' 32, no. 7 (July 1996): 50–53.</ref> California case of ''[[Greenman v. Yuba Power Products, Inc.]]'' (1963), in which the [[Supreme Court of California]] openly articulated and adopted the doctrine of strict liability in tort for defective products.<ref name="Owen" /><ref name="Kiely" /><ref name="HowellsPage_207">{{cite book |last1=Howells |first1=Geraint |last2=Owen |first2=David G. |editor1-last=Howells |editor1-first=Geraint |editor2-last=Ramsay |editor2-first=Iain |editor3-last=Wilhelmsson |editor3-first=Thomas |title=Handbook of Research on International Consumer Law |date=2018 |publisher=Edward Elgar Publishing |location=Cheltenham |pages=202–230 |edition=2nd |chapter-url=https://books.google.com/books?id=codlDwAAQBAJ&pg=PA207 |access-date=31 May 2020 |chapter=Products liability law in America and Europe|isbn=9781785368219 }}</ref>  ''Greenman'' heralded a fundamental shift in how Americans thought about product liability towards a theory of enterprise liability—instead of basing liability on the defendant's "fault" or "warranty", the defendant's liability should be predicated, as a matter of public policy, on the simple question of whether it was part of a business enterprise responsible for inflicting injuries on human beings.<ref name="Kiely" />  The theoretical foundation for enterprise liability had been laid by James as well as another law professor, [[Leon Green]].<ref name="OConnell">{{cite journal|last1=O'Connell|first1=Jeffrey|last2=Linehan|first2=John|editor1-last=Carrington|editor1-first=Paul D.|editor2-last=Jones|editor2-first=Trina|title=The Rise and Fall (and Rise Again?) of Accident Law: A Continuing Saga|journal=Law and Class in America: Trends Since the Cold War|date=2006|pages=349–363|url=https://books.google.com/books?id=dMMqAmkAyyYC&pg=PA353|access-date=12 February 2017 |publisher=New York University Press |location=New York|isbn=9780814716540}}</ref> As noted above, it was ''Greenman'' which led to the actual emergence of product liability as a distinct field of private law in its own right.<ref name="ReimannPage251" />  Before this point, products had appeared in case law and scholarly literature only in connection with the application of existing doctrines in contract and tort.<ref name="ReimannPage251" />

The ''Greenman'' [[majority opinion]] was authored by then-Associate Justice [[Roger J. Traynor]], who cited to his own earlier [[concurring opinion]] in ''[[Escola v. Coca-Cola Bottling Co.]]'' (1944).  In ''Escola'', now also widely recognized as a landmark case,<ref name="OConnell" /><ref name="Vandall_Page27">{{cite book|last1=Vandall|first1=Frank J.|title=A History of Civil Litigation: Political and Economic Perspectives|date=2011|publisher=Oxford University Press|location=Oxford|isbn=9780199781096|page=27|url=https://books.google.com/books?id=vw9pAgAAQBAJ&pg=PA27}}</ref><ref name="Feinman">{{cite book|last1=Feinman|first1=Jay M.|title=Law 101: Everything You Need to Know About American Law|date=2023|publisher=Oxford University Press|location=Oxford|isbn=9780197662595|page=196|edition=6th|url=https://books.google.com/books?id=BWi4EAAAQBAJ&pg=PA196}}</ref><ref name="Friedman">{{cite book |last=Friedman |first=Lawrence M. |title=American Law in the Twentieth Century |url=https://archive.org/details/americanlawin20t00frie |url-access=registration |location=New Haven |publisher=Yale University Press |year=2002 |pages=[https://archive.org/details/americanlawin20t00frie/page/356 356–357]|isbn=9780300091373 }}</ref> Justice Traynor laid the foundation for ''Greenman'' with these words:

<blockquote>Even if there is no negligence, however, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot. Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. It is to the public interest to discourage the marketing of products having defects that are a menace to the public. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market. However intermittently such injuries may occur and however haphazardly they may strike, the risk of their occurrence is a constant risk and a general one. Against such a risk there should be general and constant protection and the manufacturer is best situated to afford such protection.<ref>[https://scholar.google.com/scholar_case?case=1547126968260564389 ''Escola v. Coca-Cola Bottling Co.''], 24 Cal. 2d 453, 462, 150 P.2d 436 (1944) (Traynor, J., concurring).</ref></blockquote>

Traynor's argument for imposing strict liability in ''Escola'' "has had an enormous impact on the way legal scholars have understood products liability and tort law more generally".<ref name="Goldberg_Page_280">{{cite book |last1=Goldberg |first1=John C. P. |last2=Zipursky |first2=Benjamin C. |title=The Oxford Introductions to U.S. Law: Torts |date=2010 |publisher=Oxford University Press |location=Oxford |isbn=9780195373974 |page=280 |url=https://books.google.com/books?id=KCqai3JPqxEC&pg=PA280 |access-date=12 March 2022}}</ref> The year after ''Greenman'', the Supreme Court of California proceeded to extend strict liability to ''all'' parties involved in the manufacturing, distribution, and sale of defective products (including retailers).<ref name="Kiely" /><ref name="Nolan_Page_117">{{cite book |last1=Nolan |first1=Virginia |last2=Ursin |first2=Edmund |title=Understanding Enterprise Liability: Rethinking Tort Reform for the Twenty-First Century |date=1995 |publisher=Temple University Press |location=Philadelphia |isbn=9781566392303 |page=117 |url=https://books.google.com/books?id=4f5YE3F5gaYC&pg=PA117 |access-date=19 January 2021}}</ref><ref>''Vandermark v. Ford Motor Co.'', [http://online.ceb.com/CalCases/C2/61C2d256.htm 61 Cal. 2d 256] (1964)</ref> In 1969, the court then held that such defendants were liable not only to direct customers and users, but also to any innocent bystanders randomly injured by defective products.<ref name="Nolan_Page_117" /><ref>''Elmore v. American Motors Corp.'', [http://online.ceb.com/CalCases/C2/70C2d578.htm 70 Cal. 2d 578] (1969).</ref>

=====Nationwide adoption of product liability=====

In turn, Prosser was able to propagate the ''Greenman'' holding to a nationwide audience because the American Law Institute had appointed him as the official reporter of the [[Restatement of Torts, Second]].<ref name="Kiely" />  The Institute approved the Restatement's final draft in 1964 and published it in 1965; the Restatement codified the ''Greenman'' doctrine in Section 402A.<ref name="Kiely" /><ref name="HowellsPage_207" />  ''Greenman'' and Section 402A "spread like wildfire across America".<ref name="HowellsPage_208">{{cite book |last1=Howells |first1=Geraint |last2=Owen |first2=David G. |editor1-last=Howells |editor1-first=Geraint |editor2-last=Ramsay |editor2-first=Iain |editor3-last=Wilhelmsson |editor3-first=Thomas |title=Handbook of Research on International Consumer Law |date=2018 |publisher=Edward Elgar Publishing |location=Cheltenham |pages=202–230 |edition=2nd |chapter-url=https://books.google.com/books?id=codlDwAAQBAJ&pg=PA208 |access-date=31 May 2020 |chapter=Products liability law in America and Europe|isbn=9781785368219 }}</ref> The [[state supreme court|highest courts]] of nearly all U.S. states and territories (and a few [[State legislature (United States)|state legislatures]]) embraced this "bold new doctrine" during the late 1960s and 1970s.<ref name="Owen" />  As of 2018, the five exceptions who have rejected strict liability are Delaware, Massachusetts, Michigan, North Carolina, and Virginia.<ref name="HowellsPage_208" />  In four of those states, warranty law has been so broadly construed in favor of plaintiffs that only North Carolina truly lacks anything resembling strict liability in tort for defective products.<ref name="Graham">{{cite journal |last1=Graham |first1=Kyle |title=Strict Products Liability at 50: Four Histories |journal=Marquette Law Review |date=2014 |volume=98 |issue=2 |pages=555–624 |doi=10.2139/ssrn.2385731|url=https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1863&context=facpubs |url-access=subscription }}</ref> (North Carolina's judiciary never attempted to adopt the doctrine, and the state legislature enacted a statute expressly banning strict liability for defective products in 1995.<ref name="Graham" /><ref>[https://www.ncleg.gov/enactedlegislation/statutes/pdf/bysection/chapter_99b/gs_99b-1.1.pdf N.C. Gen. Stat. § 99B-1.1] (1995).</ref>) In a landmark 1986 decision, the U.S. Supreme Court also embraced strict liability for defective products by adopting it as part of [[United States admiralty law|federal admiralty law]].<ref>''[https://supreme.justia.com/cases/federal/us/476/858/ East River S. S. Corp. v. Transamerica Delaval Inc.]'', {{ussc|476|858|1986}}.</ref>

=====Factors behind nationwide adoption=====

In the conventional narrative, there are two main factors that explain the rapid embrace of ''Greenman'' and Section 402A.<ref name="Graham" />  First, they came along just as Americans were coalescing around a consensus in favor of [[consumer protection]], which would eventually cause Congress to enact several landmark federal product safety and vehicle safety statutes.<ref name="Graham" /><ref name="Stapleton_Page30">{{cite book |last1=Stapleton |first1=Jane |title=Product Liability |date=1994 |publisher=Cambridge University Press |location=Cambridge |isbn=9780406035035 |page=30 |url=https://books.google.com/books?id=ohxyzSM76n8C&pg=PA30|author-link1=Jane Stapleton}}</ref> Between 1960 and 1977, Congress passed at least forty-two laws dealing with consumer and worker safety.<ref name="Cohen">{{cite book |last1=Cohen |first1=Lizabeth |title=A Consumers' Republic: The Politics of Mass Consumption in Postwar America |date=2008 |publisher=Alfred A. Knopf |location=New York |isbn=9780307555366 |page=360 |url=https://books.google.com/books?id=YuZPy6JqutIC&pg=PA360 |access-date=29 August 2020}}</ref>  Second, American academic experts in the field of [[law and economics]] developed new theories that helped to justify strict liability, such as those articulated by [[Guido Calabresi]] in ''[[The Costs of Accidents]]'' (1970).<ref name="Graham" /><ref name="Stapleton_Page30" /><ref name="Vandall_Page36">{{cite book|last1=Vandall|first1=Frank J.|title=A History of Civil Litigation: Political and Economic Perspectives|date=2011|publisher=Oxford University Press|location=Oxford|isbn=9780199781096|pages=36–37|url=https://books.google.com/books?id=vw9pAgAAQBAJ&pg=PA36}}</ref><ref name="Hackney_Page111">{{cite book |last1=Hackney |first1=James R. Jr. |title=Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity |date=2007 |publisher=Duke University Press |location=Durham |isbn=9780822339984 |page=111 |url=https://books.google.com/books?id=4Sanltafb6MC&pg=PA111}}</ref>

To this, Kyle Graham adds three more factors: (3) the rise of attorneys specializing exclusively in plaintiffs' personal injury cases and their professional associations like the organization now known as the [[American Association for Justice]]; (4) the ubiquity of so-called "bottle cases" (personal injury cases arising from broken [[glass bottle]]s) before [[aluminum can]]s and [[plastic bottle]]s displaced glass bottles as the primary beverage container during the 1970s; and (5) the resistance of the [[Uniform Commercial Code]]'s editorial board to extending warranties to bystander victims before 1966—in states whose legislatures had not already acted, state courts were more receptive to extending the common law to grant bystanders a strict liability tort claim.<ref name="Graham" />

Prosser inexplicably imposed in Section 402A a requirement that a product defect must be "unreasonably dangerous."<ref name="Heafey1">{{cite book |last1=Heafey |first1=Richard J. |last2=Kennedy |first2=Don M. |date=2006 |publisher=Law Journal Press |location=New York |isbn=1-58852-067-6 |pages=2–9 |url=https://books.google.com/books?id=qlFR0B05q0EC&pg=SA2-PA9|title=Product Liability: Winning Strategies and Techniques}}</ref><ref name="Vandall_Page31">{{cite book|last1=Vandall|first1=Frank J.|title=A History of Civil Litigation: Political and Economic Perspectives|date=2011|publisher=Oxford University Press|location=Oxford|isbn=9780199781096|pages=31–32|url=https://books.google.com/books?id=vw9pAgAAQBAJ&pg=PA31}}</ref> Since the "unreasonably dangerous" qualifier implicitly connotes some sense of the idea of "fault" which Traynor was trying to exorcise from product liability,<ref name="Vandall_Page31" /> it was subsequently rejected as incompatible with strict liability for defective products by Alaska, California, Georgia, New Jersey, New York, Puerto Rico and West Virginia.<ref name="Heafey1" />

=====The mass tort product liability explosion=====

Early proponents of strict liability believed its economic impact would be minor because they were focused on manufacturing defects.<ref name="Stapleton_Page26">{{cite book |last1=Stapleton |first1=Jane |title=Product Liability |date=1994 |publisher=Cambridge University Press |location=Cambridge |isbn=9780406035035 |page=26 |url=https://books.google.com/books?id=ohxyzSM76n8C&pg=PA26}}</ref> They failed to foresee the logical implications of applying the rule to other types of product defects.<ref name="Stapleton_Page26" />  Only in the late 1960s did Americans begin to draw a clear analytical distinction between manufacturing and design defects, and since the early 1980s, defective design claims "have formed the overwhelming bulk" of American product liability lawsuits.<ref name="Stapleton_Page30" />  It was "the unintended application of [Section] 402A to the design context" which resulted in the explosion of [[mass tort]] product liability cases during the 1980s throughout the United States.<ref name="Stapleton_Page30" /> In the [[Federal judiciary of the United States|federal judicial system]], the number of product liability civil actions filed per year increased from 2,393 in 1975 to 13,408 in 1989, and product liability's percentage of all federal civil cases increased from 2.0% to 5.7% during the same period.<ref name="Moore_Page10">{{cite book |last1=Moore |first1=Michael J. |last2=Viscusi |first2=W. Kip |title=Product Liability Entering the Twenty-First Century: The U.S. Perspective |date=2001 |publisher=AEI-Brookings Joint Center for Regulatory Studies |location=Washington, D.C. |isbn=9780815798798 |page=10 |url=https://books.google.com/books?id=vayqFDPGVhsC&pg=PA10 |access-date=19 September 2020}}</ref>  These numbers reflect only a small portion of the 1980s explosion in product liability cases; the vast majority of American lawsuits are heard in state courts and not federal courts.<ref name="Manweller_Page55">{{cite book |last1=Manweller |first1=Mathew |editor1-last=Hogan |editor1-first=Sean O. |title=The Judicial Branch of State Government: People, Process, and Politics |date=2006 |publisher=ABC-CLIO |location=Santa Barbara |isbn=9781851097517 |pages=37–96 |chapter-url=https://books.google.com/books?id=ong5k8n97P4C&pg=PA55 |access-date=5 October 2020 |chapter=Chapter 2, The Roles, Functions, and Powers of State Courts}}</ref>

In subsequent decades, American federal judges began to heavily rely upon the [[multidistrict litigation]] (MDL) statute ({{usc|28|1407}}) to manage an ever-increasing number of complex civil cases.<ref name="Wittenberg">{{cite news |last1=Wittenberg |first1=Daniel S. |url=https://www.americanbar.org/groups/litigation/publications/litigation-news/business-litigation/multidistrict-litigation-dominating-federal-docket/ |work=Litigation News |publisher=American Bar Association |date=February 19, 2020 |title=Multidistrict Litigation: Dominating the Federal Docket |archive-url=https://web.archive.org/web/20201021172757/https://www.americanbar.org/groups/litigation/publications/litigation-news/business-litigation/multidistrict-litigation-dominating-federal-docket/ |archive-date=October 21, 2020 |url-status=dead}}</ref>  For the first time, by the end of 2018 more than half (51.9%) of all pending American federal civil cases had been centralized into MDLs, with 156,511 cases in 248 MDLs out of a total of 301,766 civil cases.<ref name="Wittenberg" />  Product liability was the dominant category both in terms of percentage of total active MDLs (32.9%) and percentage of total civil cases centralized into MDLs (91%).<ref name="Wittenberg" />

Among the factors which led to the large numbers of product liability cases seen today in the United States are relatively low fees for [[Filing (law)|filing]] lawsuits, the availability of [[class action]]s, the strongest right to a [[jury trial]] in the world, the highest awards of monetary damages in the world (frequently in the millions of dollars for [[pain and suffering]] noneconomic damages and in rare cases soaring into the billions for [[punitive damages]]<ref name="Priest_Page_1">{{cite book |last1=Priest |first1=George L. |author1-link=George L. Priest |editor1-last=Sunstein |editor1-first=Cass R. |editor2-last=Hastie |editor2-first=Reid |editor3-last=Payne |editor3-first=John W. |editor4-last=Viscusi |editor4-first=W. Kip |editor5-last=Schkade |editor5-first=David A. |editor1-link=Cass Sunstein |editor4-link=W. Kip Viscusi |title=Punitive Damages: How Juries Decide |date=2002 |publisher=University of Chicago Press |location=Chicago |isbn=9780226780160 |pages=1-16 |chapter-url=https://books.google.com/books?id=jd1F5Ep19UoC&pg=PA1 |chapter=Introduction: The Problem and Efforts to Understand It}} (At p. 1.)</ref>), and the most extensive right to [[Discovery (law)|discovery]] in the world.<ref name="Reimann_2003" />  No other country has adopted the U.S. standard of disclosure of information that is "reasonably calculated to lead to the discovery of admissible evidence."<ref name="Reimann_2003" /><ref name="Sautter_Page20">{{cite book |last1=Sautter |first1=Ed |editor1-last=Coleman |editor1-first=Lynn |editor2-last=Lemieux |editor2-first=Victoria L. |editor3-last=Stone |editor3-first=Rod |editor4-last=Yeo |editor4-first=Geoffrey |title=Managing Records in Global Financial Markets: Ensuring Compliance and Mitigating Risk |date=2011 |publisher=Facet Publishing |location=London |isbn=9781856046633 |pages=17–32 |chapter-url=https://books.google.com/books?id=j9wqDgAAQBAJ&pg=PA20 |chapter=Chapter 2: Conflicts of laws in multiple jurisdictions}}</ref>  American [[Law report|reported cases]] are replete with plaintiffs whose counsel artfully exploited this standard to obtain so-called "[[smoking gun]]" evidence of product defects and made defendants pay "a tremendous price" for their callous disregard for product safety.<ref name="Reimann_2003" />

=====Tort reform and the neo-conservative reaction=====

In response to these developments, a [[tort reform]] movement appeared in the 1980s which persuaded many state legislatures to enact various limitations like [[Non-economic damages caps|damage caps]] and [[Statute of repose|statutes of repose]].<ref name="Stapleton_Page33">{{cite book |last1=Stapleton |first1=Jane |title=Product Liability |date=1994 |publisher=Cambridge University Press |location=Cambridge |isbn=9780406035035 |page=33 |url=https://books.google.com/books?id=ohxyzSM76n8C&pg=PA33}}</ref>  However, the majority of states left untouched the basic rule of strict liability for defective products, and all efforts at the federal level to enact a uniform federal product liability regime were unsuccessful.<ref name="Stapleton_Page33" />

From the mid-1960s onward, state courts struggled for over four decades to develop a coherent test for design defects, either phrased in terms of consumer expectations or whether risks outweigh benefits or both (i.e., a hybrid test in which the first does not apply to defects that are too complex).<ref name="Owen_DesignDefects">{{cite journal |last1=Owen |first1=David G. |title=Design Defects |journal=Missouri Law Review |date=2008 |volume=73 |issue=2 |pages=292–368|url=https://scholarcommons.sc.edu/cgi/viewcontent.cgi?article=1966&context=law_facpub}}</ref>  Risk-benefit analysis, of course, can be seen as a way of measuring the reasonableness of the defendant's conduct—or in other words, negligence.  A neo-conservative turn among many American courts<ref name="HowellsPage_209">{{cite book |last1=Howells |first1=Geraint |last2=Owen |first2=David G. |editor1-last=Howells |editor1-first=Geraint |editor2-last=Ramsay |editor2-first=Iain |editor3-last=Wilhelmsson |editor3-first=Thomas |title=Handbook of Research on International Consumer Law |date=2018 |publisher=Edward Elgar Publishing |location=Cheltenham |pages=202–230 |edition=2nd |chapter-url=https://books.google.com/books?id=codlDwAAQBAJ&pg=PA209 |access-date=31 May 2020 |chapter=Products liability law in America and Europe|isbn=9781785368219 }}</ref> and tort scholars during the 1980s led to a recognition that liability in design defect and failure-to-warn cases had never been entirely strict,<ref name="ReimannPage252">{{cite book |last1=Reimann |first1=Mathias |editor1-last=Bussani |editor1-first=Mauro |editor2-last=Sebok |editor2-first=Anthony J. |title=Comparative Tort Law: Global Perspectives |date=2015 |publisher=Edward Elgar Publishing |location=Cheltenham |pages=250–278 |chapter-url=https://books.google.com/books?id=Q5FHCgAAQBAJ&pg=PA252 |access-date=1 May 2020 |chapter=Product liability|isbn=9781784718138}}</ref> or had been operating in some respects as a ''de facto'' fault-based regime all along,<ref name="Stapleton_Page33" /> and the American Law Institute expressly backed a return to tests associated with negligence for design and warning defects with the 1998 publication of the ''Restatement of Torts, Third: Products Liability''.<ref name="ReimannPage252" /><ref name="Koenig_Page63">{{cite book |last1=Koenig |first1=Thomas |last2=Rustad |first2=Michael |author-link2=Michael Rustad|title=In Defense of Tort Law |date=2001 |publisher=New York University Press |location=New York |isbn=9780814748992 |page=63 |url=https://books.google.com/books?id=6FjqlxBifTcC&pg=PA63 |access-date=9 June 2020}}</ref>  This attempt to resurrect negligence and to limit strict liability to its original home in manufacturing defects<ref name="Koenig_Page63" /><ref name="Vandall_Page91">{{cite book|last1=Vandall|first1=Frank J.|title=A History of Civil Litigation: Political and Economic Perspectives|date=2011|publisher=Oxford University Press|location=Oxford|isbn=9780199781096|page=91|url=https://books.google.com/books?id=vw9pAgAAQBAJ&pg=PA91}}</ref><ref name="HowellsPage_212">{{cite book |last1=Howells |first1=Geraint |last2=Owen |first2=David G. |editor1-last=Howells |editor1-first=Geraint |editor2-last=Ramsay |editor2-first=Iain |editor3-last=Wilhelmsson |editor3-first=Thomas |title=Handbook of Research on International Consumer Law |date=2018 |publisher=Edward Elgar Publishing |location=Cheltenham |pages=202–230 |edition=2nd |chapter-url=https://books.google.com/books?id=codlDwAAQBAJ&pg=PA212 |access-date=31 May 2020 |chapter=Products liability law in America and Europe|isbn=9781785368219 }}</ref> "has been highly controversial among courts and scholars."<ref name="ReimannPage253">{{cite book |last1=Reimann |first1=Mathias |editor1-last=Bussani |editor1-first=Mauro |editor2-last=Sebok |editor2-first=Anthony J. |title=Comparative Tort Law: Global Perspectives |date=2015 |publisher=Edward Elgar Publishing |location=Cheltenham |pages=250–278 |chapter-url=https://books.google.com/books?id=Q5FHCgAAQBAJ&pg=PA253 |access-date=1 May 2020 |chapter=Product liability|isbn=9781784718138}}</ref> In arguing in 2018 that U.S. product liability law as restated in 1998 had come full circle back to where it started in 1964, two law professors also conceded that "some courts" continue to "tenaciously cling[] to the rationale and doctrine of [Section] 402A."<ref name="HowellsPage_213">{{cite book |last1=Howells |first1=Geraint |last2=Owen |first2=David G. |editor1-last=Howells |editor1-first=Geraint |editor2-last=Ramsay |editor2-first=Iain |editor3-last=Wilhelmsson |editor3-first=Thomas |title=Handbook of Research on International Consumer Law |date=2018 |publisher=Edward Elgar Publishing |location=Cheltenham |pages=202–230 |edition=2nd |chapter-url=https://books.google.com/books?id=codlDwAAQBAJ&pg=PA213 |access-date=31 May 2020 |chapter=Products liability law in America and Europe|isbn=9781785368219 }}</ref>

====Types of liability====
Section 2 of the ''Restatement (Third) of Torts: Products Liability'' distinguishes between three major types of product liability claims:

*  Manufacturing defect
*  Design defect
*  Failure to warn (also known as marketing defects)

However, in most states, these are not legal claims in and of themselves, but are pleaded in terms of the legal theories mentioned above.  For example, a plaintiff might plead negligent failure to warn or strict liability for defective design.<ref>See, e.g., ''Merrill v. Navegar, Inc.'', [http://online.ceb.com/calcases/C4/26C4t465.htm 26 Cal. 4th 465] (2001).</ref>

The three types of product liability claims are defined as follows:

*  Manufacturing defects are those that occur in the manufacturing process and usually involve poor-quality materials or shoddy [[Skill|workmanship]].  In other words, the defective product differs from the others on the same assembly line and does not conform to the manufacturer's intended design.<ref name="Vandall_Page91" />
*  Design defects occur where the product design is inherently dangerous or useless (and hence defective) no matter how carefully manufactured.  In other words, the defective product is the same as every other one on the same assembly line because it is exactly what the manufacturer designed and intended to build, but the plaintiff is contending that the design itself is defective.<ref name="Vandall_Page91" /> The Third Restatement expressly prefers to measure defective design in terms of whether the product design's risks outweigh its benefits, and expressly deprecates the consumer expectations test associated with Section 402A of the Second Restatement. As noted above, state courts either use one test or the other or both.<ref name="Owen_DesignDefects" />  The Third Restatement also places the burden of proof on the plaintiff to prove that risks outweigh benefits by proving the feasibility of a safer alternative design.<ref name="Owen_DesignDefects" /> 
*  Failure-to-warn defects arise in products that carry inherent nonobvious dangers which can be mitigated through adequate warnings to the user, and which are present regardless of how well the product is manufactured and designed for its intended purpose. This class of defects also includes failure to provide relevant product instructions or sufficient product warnings.<ref>{{cite journal |last1=Noel |first1=Dix W. |title=Products Defective because of Inadequate Directions or Warnings |journal=Southwestern Law Journal |date=1969 |volume=23 |page=256 |url=https://heinonline.org/HOL/LandingPage?handle=hein.journals/smulr23&div=29&id=&page= |access-date=11 August 2018}}</ref>

====Theories of liability====
In the United States, the claims most commonly associated with product liability are [[negligence]], [[strict liability]], [[breach of warranty]], and various [[consumer protection]] claims.

=====Breach of warranty=====
Warranties are statements by a manufacturer or seller concerning a product during a commercial transaction.  Warranty claims historically required [[privity]] between the injured party and the manufacturer or seller; in [[plain English]], they must be dealing directly with one another. As noted above, this requirement was demolished in the landmark ''Henningsen'' case.

Breach of warranty-based product liability claims usually focus on one of three types:
#Breach of an [[express warranty]],
#Breach of an [[implied warranty]] of merchantability, and
#Breach of an implied warranty of fitness for a particular purpose.
Express warranty claims focus on express statements by the manufacturer or the seller concerning the product (e.g., "This chainsaw is useful to cut turkeys").

The various implied warranties cover those expectations common to all products (e.g., that a tool is not unreasonably dangerous when used for its proper purpose), unless specifically disclaimed by the manufacturer or the seller.  They are implied by operation of law from the act of manufacturing, distributing, or selling the product. Claims involving real estate (especially mass-produced [[tract housing]]) may also be brought under a theory of implied warranty of habitability.

=====Negligence=====
A basic [[negligence]] claim consists of proof of

# a duty owed,
# a breach of that duty,
# the breach was the cause in fact of the plaintiff's injury (actual cause)
# the breach proximately caused the plaintiff's injury.
# and the plaintiff suffered actual quantifiable injury (damages).

As demonstrated in cases such as ''[[Winterbottom v. Wright]]'', the scope of the duty of care was limited to those with whom one was in privity. Later cases like ''[[MacPherson v. Buick Motor Co.]]'' broadened the duty of care to all who could be foreseeably injured by one's conduct.

Over time, negligence concepts have arisen to deal with certain specific situations, including [[negligence per se|negligence ''per se'']] (using a manufacturer's violation of a law or regulation, in place of proof of a duty and a breach) and [[res ipsa loquitur]] (an inference of negligence under certain conditions).

=====Strict liability=====
{{Main|Strict liability}}
Rather than focus on the behavior of the manufacturer (as in negligence), strict liability claims focus on the product itself.  Under strict liability, the manufacturer is liable if the product is defective, even if the manufacturer was not negligent in making that product defective.

Under a strict liability theory, the plaintiff merely needs to prove:

*the defendant manufactured, distributed, or supplied a product;
*the product was defective;
*the defect caused injury to the plaintiff; and 
*as a result, the plaintiff sustained damages.

=====Consumer protection=====
In addition to common law remedies, many states have enacted consumer protection statutes that provide specific remedies for certain specific types of product defects.  One reason for the appearance of such statutes is that under the "economic loss rule", strict liability in tort is unavailable for products that cause damage only to themselves.<ref name="Speidel">{{cite journal|last1=Speidel|first1=Richard E.|editor1-last=Carrington|editor1-first=Paul D.|editor2-last=Jones|editor2-first=Trina|title=Consumers and the American Contract System: A Polemic|journal=Law and Class in America: Trends Since the Cold War|date=2006|pages=260–278|url=https://books.google.com/books?id=dMMqAmkAyyYC&pg=PA269|access-date=12 February 2017 |publisher=New York University Press |location=New York|isbn=9780814716540}} (At p. 269.)</ref>  In other words, strict liability is unavailable for defects that merely render the product unusable (or less useful), and hence cause only economic injury, but do not cause personal injury or damage to other property.<ref name="Speidel" /> Breach of warranty actions governed by Article 2 of the Uniform Commercial Code also often fail to provide adequate remedies in such situations.<ref name="Speidel" />

The best-known examples of consumer protection statutes for product defects are [[lemon law]]s, which provide protection to purchasers of defective new vehicles and, in a small number of states, used vehicles.<ref name="Speidel" />  In the United States, "cars are typically the second most valuable asset most people own, outranked only by their home."<ref name="Hagel">{{cite book |last1=Hagel III |first1=John |authorlink1=John Hagel III |last2=Singer |first2=Marc |title=Net Worth: Shaping Markets when Customers Make the Rules |date=1999 |publisher=Harvard Business School Press |location=Boston |isbn=9780875848891 |url=https://books.google.com/books?id=6qIQahiFMCMC&pg=PA62 |access-date=1 June 2020|pages=62–63}}</ref>