Product Liability:

Negligence v. Strict Liability Theories of Recovery

Product liability claims generally arise when a person is injured due to an alleged defect in the product or insufficient warning labels.  A product liability claim can be brought under three different theories: negligence, strict liability, or breach of warranty.  Regardless of the theory on which he seeks recovery, the plaintiff must establish three things in a products liability action: (1) that he was injured by the product; (2) that the product, at the time of the accident, was in essentially the same condition as when it left the hands of the defendant; and (3) that the injury occurred because the product was in a defective condition unreasonably dangerous to the user.  Comparing the theories of a negligence product liability claim and strict liability claim, there are slight differences in the burden of proof placed on the plaintiff. 

Strict liability and negligence are not mutually exclusive theories of recovery.  An injury may give rise to claims that can be established either under principles of strict liability or negligence.  Failure to prove one theory does not preclude success under the other.  A negligence claim must have a fault-based element, which is not required for a strict liability claim.  A negligence theory imposes the additional burden on a plaintiff of demonstrating the Defendant seller or manufacturer failed to exercise due care in some respect.  The focus here, unlike in strict liability, is on the conduct of the seller or manufacturer, and liability is determined according to fault.  The reasonableness of the manufacturer's conduct in view of the foreseeable risk of injury is at issue in a negligence case.  Conversely, in a strict liability case, the defendant may be held liable even though it exercised the utmost care.  In a product liability action based on strict liability where a design defect is alleged, the plaintiff must prove the product, as designed, was in an unreasonably dangerous or defective condition.  The focus in a strict liability cause of action is on the condition of the product, without regard to the action of the seller or manufacturer.  The distinction between strict liability and negligence is that in strict liability, knowledge of the condition of the product and the risks involved in that condition will be imputed to the manufacturer, whereas in negligence these elements must be proven.

In order to recover under a strict liability theory, the plaintiff must establish that: (1) the defendant's product was in a defective condition unreasonably dangerous for its intended use; (2) the defect existed when the product left the defendant's control; and (3) the defect was the proximate cause of the injury sustained. Two tests have evolved to determine whether a product is in a defective condition unreasonably dangerous for its intended use. The first test is whether the product is unreasonably dangerous to the ordinary consumer or user given the conditions and circumstances that foreseeably attend the use of the product. Under the second test, a product is unreasonably dangerous and defective if the danger associated with the use of the product outweighs the utility of the product.  The state of the art and industry standards are relevant to show both the reasonableness of the design and that the product is dangerous beyond the expectations of the ordinary consumer.

In determining if a product is defective and unreasonably dangerous, our Supreme Court has held that while any product can be made safer, the fact that it is not does not automatically mean the product is unreasonably dangerous.  Strict liability is not equivalent either to absolute liability or to insurance of the safety of the product's user. Likewise, the mere fact that a product malfunctions does not demonstrate the manufacturer's negligence nor does it establish that the product was defective. Rather, "[i]n the final analysis, we have another of the law's balancing acts and numerous factors be considered, including the usefulness and desirability of the product, the cost involved for added safety, the likelihood and potential seriousness of injury, and the obviousness of danger." Claytor, 277 S.C. at 265, 286 S.E.2d at 132. Thus, in South Carolina we balance the utility of the risk inherent in the design of the product with the magnitude of the risk to determine the reasonableness of the manufacturer's action in designing the product. Id.


To read a recent S.C. Court of Appeals opinion regarding defective-design products liability please read the recent opinion in Miranda v. Nisson Motor (2013)

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