Strict Products Liability Revisited

This article examines the relationship between two concepts found throughout the law of products liability, defect and negligence. Traditional tort doctrine contends that, although they are sometimes used interchangeably, both concepts refer to quite distinct matters: the state of a product, on the one hand, and the nature of a manufacturer\u27s conduct in supplying its products, on the other. The hallmark distinction between a standard of fault and one of strict liability, it is said, is that only the former requires proof of unreasonable care, whereas both require proof of a defect. Relying on developments in the United States and in Canada, the author suggests that such claims are overly sweeping in practice. In both jurisdictions, while a decisionmaker can focus exclusively on an outcome (the defendant\u27s product) and ignore the reasons given for this result (the defendant\u27s conduct) in determining whether or not a manufacturing defect is present, negligence concepts such as cost-benefit balancing and foreseeability of risk appear inseparable from inquiries into the defectiveness of a design or warning. Regardless of the standard of liability adopted in theory, defect and negligence thus converge in two important areas of products liability. The author reviews policy considerations and two recent appellate court decisions supporting a standard of strict liability tailored to manufacturing defects. In his view, aprina fade case for manufacturer liability should exist when a plaintiff demonstrates (1) that a product is dangerously different from its intended design, (2) that the defendant is responsible for the defective product\u27s supply, and (3) that recognized damages were caused by this defect. Pursuant to their power and their duty to ensure the incremental evolution of the common law, it is argued, Canadian courts ought to openly recognize a standard of strict tort liability for manufacturing defects