Strict Liability

Central to the determination o f strict liability is the presence of a defect in the product which caused physical injury,^^ since strict liability focuses on the condition of the product and the manufacturer will be liable for damage caused wholly or partly by a 4 8 ./ W , at 517-18.

49. 282 Ore 61. 577 P 2d 1322 (S Ct Ore 1978), reh den 282 Ore 411. 579 P 2d 1287 (1978). 50. Ibid, at 1325

Ibid, at 1325 & 1328. See Montgomery' & Owen. n.20 above, at 828-29. 52./6/V/, at 69 & 1326-27.

5^. Ibid.

54. Ibid, at 1327.

55. Calabresi & Hirshoff, Toward a Test for Strict Liability' in Tort, at 1061; Traynor, n.26 above, at 373; Shawcross, V(38).

defect in his p r o d u c t . I n this respect, the Restatement (Second) o f Torts has been regarded, though not always with justification, as indicating the extent o f strict liability in t o r t . A s if to take a leaf out of the Restatement's approach, the European

Communities adopted a Council Directive^^ in 1985, some nine years after such a

move was initially p r o p o s e d . T h e Directive has been adopted on the belief that imposition on the producer o f liability without fault is "the sole means o f solving the problem, peculiar to our age o f increasing technicality, of a fair apportionment o f the risks inherent in modem technological production".

1.3.1 The notion of defect under the Restatement and the EC Directive: The

Restatement provides a celebrated formulation o f strict products liability in tort: "One

who sells any product in a defective condition unreasonably dangerous to the user or

consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his p r o p e r t y . . . T h e term 'unreasonably dangerous' is further described as dangerous, at the time when the product in question left the hands of the manufacturer, to an extent beyond that contemplated by the ordinary consumer with the ordinary knowledge common to the community as to its

c h a r a c t e r i s t i c s .The Restatement therefore links the term "unreasonably dangerous"

to defectiveness of a product, whether as a definition of a defect, as a measure of design defect, or as a means of confining the applicability of strict products liability.^^

Likewise, although the EC Directive refers to "damage caused by a defect"^"* in the

manufacturer's product, it also employs the notion of consumer expectation as its test Consumer Protection A c t 1987, s 2(1).

Shawcross, V(39). N.IO above.

Proposal for a Council Directive relating to the approximation o f the laws, regulations and administrative provisions o f the Member States concerning liability for defective products, 19 0 1 (No. C 241) 9 (14 Oct. 1976).

Directive, preamble. See also the Pearson Report, 1(1255) for its recommendation in favour of strict liability for defective products; Shawcross, V(35.1)

S 402A(1) & comment g & I (1965) {Italics added): Juglart, 1(2162). For the meaning o f "defect" in American law, see sec 1.1.3 above and accompanying notes.

Restatement, ibid, s 402A, comments i , f & g: Rigby v. Beech Aircraft Corp., 548 F 2d 288, 291 (10th Cir 1977) (defective design o f auxiliary fuel tanks); Rudisaile v. Hawk Aviation, Inc., [15 Avi 17,473] 592 P 2d 175 (S Ct NM 1979) (aircraft leased without engine oil held defective); B ell Helicopter Co. v. Bradshaw, n .l8 above, at 17,224; Wade, n.43 above, at 829-33.

Galerstein, n.44 above, at 198-99; Keeton, n.9 above, at 32.

Art 1. For the meaning of "defect" in the Directive, see S N Hurd & F E Zollers, Note on the EC Council Directive, 32 ILM (1993) 1347; Hodges, Product Liability, 52-54; Kelly & Attree, European Product Liabilit}'. ch 1; C Mannin, The Effects in Aviation of the EEC Directive on Product Liabilit}', 11 Air L (1986) 248. 250; M Griffiths, Defectiveness in EEC Product Liability, J Bus L [1987] 222; Lord Griffiths et al, n.4 above. 375/7! For the French "Draft Act" of 23 May 1990 designed to implement the Directive by amending or inserting it into the Civil Code, see Hodges, ibid, 304 & 326#:

by providing:^^ "...when it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including; (a) the presentation o f the product; (b) the use to which it could reasonably be expected that the product would be put; (c) the time when the product was put into circulation". Similarly, for purposes

of Part I o f United Kingdom's Consumer Protection Act 1987, there is a defect in a

product if its safety is not such as persons generally are entitled to expect.^^ Safety includes safety with respect to products comprised in that product (e.g. in relation to an aircraft engine and other part or equipment as well as the entire aircraft) and safety in the context o f risks of personal injury or death.^"^

1.3.2 Constraints on the consumer expectation test: The consumer expectation test,

however, is a vague, imprecise and unpredictable one. For average passengers cannot possibly have sufficient knowledge of how safely an aircraft could be made, given the complicated safety features o f technologically advanced aircraft.^* Average passengers' expectations may be too low or too high, depending on their knowledge and information,^^ and as such their expectations cannot be uniform. The newer and the less familiar the aircraft and its equipment are, the greater the expectations tend to be.”^® If the manufacturer's liability is limited to "unreasonable" risks as determined by consumer expectations, his liability will depend on the capricious expectations of average passengers and would be diminished where the average passenger holds low expectations.'^^ Again, unpredictability of consumer expectations as to product safety will not induce the manufacturer to take optimal care. Although the state-of-the-art at the time o f manufacture may help to determine average expectations o f ordinary passengers, it is not relevant under strict liability.'^^

Art 6(1); C onsum er Protection A c t 1987, s 3(2). See also the European Convention on Products Liability in R egard to Personal Injury> and Death (Strasbourg, 27 Jan. 1977), Explanatory Report, reproduced in The Law Commission No.82 and the Scottish Law Commission No.45, Liability for Defective Products (June 1977), Cmnd 6831; Pearson Report, 1(1237).

Consumer Protection A c t 1987, s 3(1). For the meaning o f "defect" in the Act, see Shawcross, V(35.5); J K Macleod, Consumer Sales Law, 442; A Clark, Comment, 50 Mod LR (1987) 614, 617;

id, Product Liabilit); C J Wright, Product Liabilit): The Law and Its Implications for Risk Management (London: Blackstone Press 1989) 41; P Fairest, Guide to the Consumer Protection Act 1987 (CCH ed Oxfordshire 1988).

^7 Ibid, s 3(1).

Nesselrode v. Executive Beechcraft, n .l9 above, at 17,227 n.6. See S L Bimbaum, Unmasking the Test for Design Defect: From Negligence [to Warrant)] to Strict Liability to Negligence, 33 Vand LR (1980) 593, 611-18; Saba, n.5, at 193; Keeton, n.29 above, at 591-92; Abramson, n. 17 above, at 179.

P Keeton, Products Liabilit)' _ Inadequac) of Information, 48 Tex LR (1970) 398, 399; Walkowiak, n.30 above, at 714.

Bruce v. M artin-M arietta Corp., 418 F Supp 829 (WD Okla 1975). 418 F Supp 837 (WD Okla 1975), affd, 514. or 544 F 2d 442, 447 (lOtli Cir 1976) (plaintiffs failing to show tlial the ordinal)' consumer w ould expect a plane made in 1952 to have the safety features of one made in 1970).

See Barker v. L ull Engineering Co., 20 Cal 3d 413. 425, 573 P 2d 443. 451. 143 Cal Rptr 225. 233 (S C t Cal 1978).

Further, determination of being unreasonably dangerous always involves a process of risk-utility balancing, an essentially negligence test,^^ which would place a significantly increased burden on plaintiff with "proof o f an element which rings o f negligence"/'^ For, whereas the manufacturer is in a position to assess and reduce or insure against the dangers inherent in his products, consumers do not have the skills or the means to investigate the safety and soundness of a product/^ Thus, imposing such a burden on passengers contradicts and defeats the purpose of strict liability which is to relieve them o f the difficulty o f proof inherent in negligence actions. Indeed, the Restatement formulation o f strict liability rarely leads to a conclusion different from that o f the negligence rule.^^ This is why the element of "unreasonable danger" has been rejected

as a valid part o f testing defectiveness under strict liability. As such, both the

Restatement and the EC Directive have failed to enunciate a clear and consistent test of strict liability.

1.3.3 Restatement of strict liability in tort; A strict liability proper or fu ll strict

liabilityP^ would therefore require that liability be triggered whenever an aircraft the manufacturer places on the market proves defective and causes injury to its users, whether he exercised reasonable care"^^ or whether it was unreasonably dangerous or not.*® For the manufacturer should not market such a defective aircraft product which is likely to cause injury but could not be made safer at the time o f design and manufacture. Or if he nevertheless should choose to do so, the risk o f aircraft products should be borne by manufacturers and not by the injured persons who are 'powerless to protect themselves'.*^ However intermittently and haphazardly such injuries may occur, the risk o f their occurrences is a constant, general risk and that the manufacturer with superior knowledge is far better positioned to provide protection by taking appropriate

Sec 1.2.2 above.

■7/ Cronin v. J .B .E Olson Corp., 8 Cal 3d 121, 132, 501 P 2d 1153, 1162, 104 Cal Rptr 433, 442 (S Ct Cal 1972); Barker, n.71 above, at 456.

EscolaV. C oca Cola Bottling Co., 24 Cal 2d 453, 461-62, 150 P 2d 436, 440-41 (S Ct Cal 1944)

(Traynor, J, concurring); Cooter & Ulen, 431 & Polinsky, 2; Keeton, n.29 above, at 560-61.

P Keeton, Products Liability _ Some Observations About Allocation o f Risks, 64 Mich LR (1966) 1329, 1340-41; W L Prosser, The Assault upon the Citadel: Strict Liability to the Consumer, 69 Yale LJ (1960) 1099, 1119.

Montgomery & Owen, n.20 above, at 842; Keeton, n.9 above, at 32; Jobe, n.46 above, at 402. ^*. Stapleton, 130 & 161.

See Berkebile v. Brantly H elicopter Corp., 337 A 2d 893, 899 (S Ct Pa 1975); Restatem ent (Second) o f Torts, s 40?A(2)(a).

*®. Pearson Report. 1(1236) & (1242); See J Stapleton. Products Liability Reform _ Real or Illusory?, 6 Oxford J Leg Stud (1986) 392; id. Three Problems, at 265.

*k Cronin v. J.B .E . Olson Corp., n.74 above, at 130, 1159 & 439, quoting Greenman v. Yuba Power Products, Inc., 59 Cal 2d 57, 62-63, 377 P 2d 897, 901. 27 Cal Rptr. 697, 701 (S Ct Cal 1962) (per Traynor, J); Barker, n.71 above, at 452.

risk-reducing steps or by insuring the risk and distributing the losses in the price o f his product as a cost of engaging in the business.^^ Indeed, a large verdict of liability or a threat o f one has induced manufacturers to produce safer products.