Theories of Liability (2022)

Product Liability

The responsibility of a manufacturer or vendor of goods to compensate for injury caused by defective merchandise that it has provided for sale.

When individuals are harmed by an unsafe product, they may have a Cause of Action against the persons who designed, manufactured, sold, or furnished that product. In the United States, some consumers have hailed the rapid growth of product liability litigation as an effective tool for Consumer Protection. The law has changed from caveat emptor ("let the buyer beware") to Strict Liability for manufacturing defects that make a product unreasonably dangerous. Manufacturers and others who distribute and sell goods argue that product liability verdicts have enriched plaintiffs' attorneys and added to the cost of goods sold. Businesses have sought tort reform from state legislatures and Congress in hopes of reducing damage awards that sometimes reach millions of dollars.

Theories of Liability

In most jurisdictions, a plaintiff's cause of action may be based on one or more of four different theories: Negligence, breach of Warranty, Misrepresentation, and strict tort liability.

Negligence refers to the absence of, or failure to exercise, proper or ordinary care. It means that an individual who had a legal obligation either omitted to do what should have been done or did something that should not have been done.

A manufacturer can be held liable for negligence if lack of reasonable care in the production, design, or assembly of the manufacturer's product caused harm. For example, a manufacturing company might be found negligent if its employees did not perform their work properly or if management sanctioned improper procedures and an unsafe product was made.

Breach of warranty refers to the failure of a seller to fulfill the terms of a promise, claim, or representation made concerning the quality or type of the product. The law assumes that a seller gives certain warranties concerning goods that are sold and that he or she must stand behind these assertions.

Misrepresentation in the advertising and sales promotion of a product refers to the process of giving consumers false security about the safety of a particular product, ordinarily by drawing attention away from the hazards of its use. An action lies in the intentional concealment of potential hazards or in negligent misrepresentation. The key to recovery on the basis of misrepresentation is the plaintiff's ability to prove that he relied upon the representations that were made. Misrepresentation can be argued under a theory of breach of express warranty or a theory of strict tort liability.

Strict liability involves extending the responsibility of the vendor or manufacturer to all individuals who might be injured by the product, even in the absence of fault. Injured guests, bystanders, or others with no direct relationship to the product may sue for damages caused by the product. An injured party must prove that the item was defective, the defect proximately caused the injury, and the defect rendered the product unreasonably dangerous.

Historical Development

The history of the law of product liability is largely a history of the erosion of the doctrine of privity, which states that an injured person can sue the negligent person only if he or she was a party to the transaction with the injured person. In other words, a defendant's duty of reasonable care arose only from the contract, and only a party to that contract could sue for its breach. This meant that a negligent manufacturer who sold a product to a retailer, who in turn sold it to the plaintiff, was effectively insulated from liability. The plaintiff was usually without a remedy in tort because it was the manufacturer and not the retailer whose negligence caused the harm.

The privity doctrine dominated nineteenth-century law, yet courts created exceptions to avoid denying an injured plaintiff a remedy. Soon privity of contract was not required where the seller fraudulently concealed the defect or where the products were inherently or imminently dangerous to human life or health, such as poisons or guns. The decisions then began to expand these exceptions. Some courts dropped the Fraud requirement. A concealed defect coupled with some sort of "invitation" by the defendant to use the product was enough. In a few cases, the term imminently dangerous was construed to mean especially dangerous by reason of the defect itself and not necessarily dangerous per se. For example, products intended for human consumption, a defective scaffold, and a coffee urn that exploded would be considered imminently dangerous.

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The seminal case of macpherson v. buick motor co., 217 N.Y. 382, 111 N.E. 1050 (N.Y. 1916), broadened the category of "inherently" or "imminently" dangerous products so as to effectively abolish the privity requirement in negligence cases. It held that lack of privity is not a defense if it is foreseeable that the product, if negligently made, is likely to cause injury to a class of persons that includes the plaintiff. Because this is essentially the test for negligence, the exception swallowed the rule. The MacPherson case quickly became a leading authority, and the privity rule in negligence cases soon was ignored. Increasing public sympathy for victims of industrial negligence also contributed to the demise of the rule.

In warranty, a similar privity limitation was imposed, in part because warranties were thought to be an integral part of the sales contract. Beginning in the early twentieth century, an exception to the privity rule developed for cases involving products intended for human consumption (food, beverages, drugs) and eventually also for products intended for "intimate bodily use" (e.g., cosmetics) so that the warranty in these cases extended to the ultimate consumer. In the case of express warranties, which could be said to be made to the public generally, the privity requirement was abandoned during the 1930s. For example, a manufacturer's statement in literature distributed with an automobile that the windshield was "shatterproof" constituted an express warranty to the purchaser that the windshield would not break (Baxter v. Ford Motor Co., 168 Wash. 456, 12 P.2d 409 [Wash. 1932]).

But with respect to implied warranties, exception to the privity rule did not extend beyond food, drink, and similar products until Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960). In this case, the New Jersey Supreme Court abolished the privity limitation generally and held that the implied warranties run to the foreseeable ultimate user or consumer of the product. The Henningsen decision, which also invalidated the manufacturer's attempted disclaimer of Implied Warranty liability, has been followed in almost all jurisdictions.

From 1930 to 1960, various legal writers and a few judges discussed the creation of strict liability in tort for defective products. The best-known judicial exposition of this view was California Supreme Court Justice Roger John Traynor's concurring opinion in Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal. 2d 453, 150 P.2d 436 (1944). A number of justifications have been advanced for strict liability: negligence is often too difficult to prove; strict liability can be accomplished through a series of actions for breach of warranty; strict liability provides needed safety incentives; the manufacturer is in the best position to either prevent the harm or insure or spread the cost of the risk; and the manufacturer of a product induces consumer reliance on the expectation of the product's safety and should be made to stand behind the product.

Finally, in 1963, in Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 377 P.2d 897, the California Supreme Court adopted strict tort liability for defective products. Within a short time, strict liability swept the country and was, as of 2003, the law in all but a few states.


The duty to guard against negligence and supply a safe product applies to everyone in the chain of distribution, including a manufacturer who carelessly makes a defective product, the company that uses the product to assemble something else without discovering an obvious defect, and the vendor who should exercise greater care in offering products for sale. These individuals owe a duty of care to anyone who is likely to be injured by such a product if it is defective, including the initial buyer, that person's family members, any bystanders, and persons who lease the item or hold it for the purchaser.

Additionally, the duty to exercise care involves all phases of getting a product to the consumers or users. The product must be designed in such a way that it is safe for its intended use. It must be inspected and tested at different stages, made from the appropriate materials, and assembled carefully. The product's container or packaging must be adequate. The manufacturer must also furnish adequate warnings and directions for use with the product. The seller is proscribed from misrepresenting the safety or character of the product and must disclose all defects.

Breach of Warranty

Warranties are certain kinds of express or implied representations of fact that the law will enforce against the warrantor. Product liability law is concerned with three types of warranties involving the product's quality or fitness for use: express warranty, implied warranty of merchantability, and implied warranty of fitness for a particular purpose. These and other warranties are codified in the Uniform Commercial Code (UCC), which every state has adopted, at least in part.

An express warranty can be created in one of three ways: through an affirmation of fact made by the vendor of the goods to the purchaser relating to the goods, which becomes part of the bargain; by way of a description of the goods, which is made part of the basis of the bargain; and through a sample or model, which is made part of the basis of the bargain (U.C.C. § 2-313).

An express warranty can be words spoken during negotiations or written into a sales contract, a sample, an earlier purchase of the same kind of product, or claims made in publicity or on tags attached to the product. An express warranty is created when a salesperson states that the product is guaranteed to be free from defects for one year from the date of the purchase.

Implied warranties are those created and imposed by law, and accompany the transfer of title to goods unless expressly and clearly limited or excluded by the contract. However, with respect to damages for personal injury, the UCC states that any such contractual limitations or exclusions are "prima facie unconscionable" and cannot be enforced (U.C.C. § 2-719 (3)).

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The implied warranty of merchantability requires that the product and its container meet certain minimum standards of quality, chiefly that the product be fit for the ordinary purposes for which such goods are sold (U.C.C. § 2-314). This requirement includes a standard of reasonable safety.The implied warranty of fitness for a particular purpose imposes a similar requirement in cases in which the seller knows or has reason to know of a particular purpose for which the goods are required and in which the buyer is relying on the seller to select or furnish suitable goods. The seller then warrants that the goods are fit for that particular purpose (U.C.C. § 2-315). For example, assume that the buyer tells the seller, a computer supplier, that he needs a high-speed computer to manage inventory and payroll functions for his business. Once the seller recommends a particular computer to handle these requirements, the seller is making an implied warranty of fitness. If the computer cannot adequately process the inventory and payroll, the buyer may file suit.

The action for breach of one of these warranties has aspects of both tort and contract law. Its greatest value to the injured product user lies in the fact that liability for breach is strict. No negligence or other fault need be shown. However, in addition to the privity limitation, certain contract-related defenses have impaired the remedy's usefulness. These include the requirement that the seller receive reasonably prompt notice of the breach as a condition to his or her liability, the requirement that the buyer has relied upon the warranty, and the ability of the seller to limit or disclaim entirely the implied warranties. These defenses are most appropriate in cases in which a product's failure causes economic loss. The trend has been away from strict enforcement of these defenses in personal injury cases in which the action is closer to a tort action.

Strict Liability

The rule of strict liability applied in product liability suits makes a seller responsible for all defective items that unreasonably threaten the personal safety of a consumer or the consumer's property. The vendor is liable if he or she regularly engaged in the business of selling such products, which reach the consumer without any substantial changes having been made in their condition. The vendor is liable even if he or she exercised care in handling the product and if the consumer bought the product somewhere else and had no direct dealings with the vendor.


A critical issue in a product liability lawsuit is whether the product contains a defect, which is an imperfection that renders a product unsafe for its intended use. Design defects exist when a whole class of products is inadequately planned in such a way as to pose unreasonable hazards to consumers. For example, an automobile manufacturer's design of a vehicle with the fuel tank placed in such a position that it will explode upon low-speed impact can be classified as defective. In that case, products manufactured in conformity with the intended design would be defective. A production defect arises when a product is improperly assembled. For example, frames of automobiles that are improperly welded to the body at the assembly plant would be classified as a production defect.

In addition, something other than the product itself can cause it to be defective. For example, caustic chemicals should be packaged in appropriate containers. Improper labeling, instructions, or warnings on a product or its container also make a product defective. Dangerous products should carry warning labels that explain how they should be used, under what circumstances they are likely to cause harm, and what steps can be taken in an emergency involving the product.

The principle of proper labeling includes claims made in sales brochures, product displays, and public advertising. It extends beyond warranty or negligence law, because a seller is strictly liable to users or purchasers of the product who are not in privity with the seller.

A manufacturer who creates the demand for goods through print and broadcast media has the responsibility to determine that the product has the qualities represented to the general public. Some courts allow injured consumers to sue even if they have not read a certain label or advertisement. The standard is that if the advertisement is directed toward the public at large and makes claims that a normal consumer would take into consideration when deciding to make a purchase, then the manufacturer must stand behind that claim for every member of the public.

Cause of Injuries

The issue of causation of injuries can be complicated, particularly if the product involved is only an indirect or remote cause, or one of a number of causes. Regardless of the theory of liability, the plaintiff must prove that the product was defective when it left the hands of the defendant and that the defect was the cause of injury. These issues are ordinarily questions of fact to be decided by the jury.

When the evidence indicates that an injury might have been precipitated by several causes, the question becomes whether the cause for which the defendant is liable was a substantial factor in bringing about the injury. A defendant is not necessarily liable if he is responsible for the last cause or the immediate cause of the injury. For example, a person who was injured by a cooking pot that fell apart when the person removed it from the stove might not have to show that a defect in the pot handle was the only possible explanation for the accident. The jury could still properly consider whether a defect was a concurring cause of the accident, even if they found that the plaintiff misused the pot by handling it too roughly.


A manufacturer has the duty to make the product as safe as possible. If the manufacturer cannot do so, he has the obligation to adequately warn users and buyers of the dangers that exist. The concept of a reasonably safe product extends to all dangers likely to arise when the product is being used normally or in a way that can be anticipated, even if it is not the purpose for which it was sold. For example, a manufacturer might foresee that someone is likely to stand on a table and might be required either to make it sufficiently strong and stable for people to do so without sustaining injury or to warn customers not to stand on it.

No liability is extended to a manufacturer if a plaintiff was disappointed because he or she had unreasonable hopes for a particular product. Frequently, however, a consumer's expectations are clearly reasonable but are not met. For example, no one expects to find defective brakes in a new automobile.


In some instances, a defect might not be inherent in the product, but a consumer should be aware that care is needed. An average adult need not be warned that knives cut, that dynamite explodes, or that electrical appliances should not be used in the shower. A consumer who ignores hazards will not succeed in an action alleging product liability. However, many manufacturers print warnings about common-sense hazards to provide added protection from a lawsuit.

Traditionally, an individual must be at least as careful as a reasonably careful person. Increasing recognition has been given, however, to a more realistic standard—the occasionally careless consumer. Courts are now less interested in how obvious a danger is and more concerned with discovering how serious the risk is and how readily it could have been avoided.

A consumer who clearly misuses a product cannot recover if an injury results. For example, a person who disregards a printed warning that nail polish remover is for external use only cannot blame the manufacturer for making an imperfect product if he or she ingests it. In addition, the consumer is precluded from recovery if he or she continues to use a product that is obviously dangerous. The theory is that the consumer has assumed the risk. This rule applies, however, only to obvious defects and does not establish a duty for consumers to scrutinize every product they purchase.

Whether a consumer has assumed responsibility for using an obviously dangerous product or misused a relatively safe product depends on who the user is likely to be. The classic example is children's clothing, which generally must be at least somewhat flame-resistant, because children are less able to appreciate the danger of accidental fires.

Unavoidable Dangers

Although manufacturers and sellers have a duty to take precautions and provide adequate warnings and instructions, the public can still obtain products that are unavoidably unsafe. A seller is not held strictly liable for providing the public with a product that is needed and wanted in spite of the potential risk of danger. Prescription drugs illustrate this principle because all of them have the potential to cause serious harm if used unreasonably.The duty to warn consumers of unavoidable dangers presents special problems if certain individuals are likely to suffer allergic reactions. The law considers an allergy to be a reaction suffered by a minority of people that is triggered by exposure to some substance. Courts used to reject claims based on allergic reactions, reasoning that the product was reasonably safe and that the injury was caused by a defect peculiar to the individual. That approach has been abandoned, with manufacturers providing careful instructions on use and clear warnings about possible symptoms that suggest an allergic reaction.

Multiparty Litigation

Since the 1970s, groups of plaintiffs have filed consolidated lawsuits against the manufacturers of certain products. The makers of contraceptive devices, silicone breast implants, asbestos, and tobacco products have encountered this type of multiparty litigation. In many states, one judge is appointed to handle all cases involving claims against such a manufacturer. The litigation process can prove costly for defendants because they may have to defend themselves in many different states. The resulting verdicts or negotiated settlements can also be very expensive to companies.

Product Liability Reform

Businesses have sought relief from state legislatures and Congress regarding product liability, contending that the shifting legal standards make them vulnerable to even the most suspect claim. Some states have passed laws that provide manufacturers with the right to defend themselves by showing that their product met generally acceptable safety standards when made. This assertion is known as the state-of-the-art defense, which relieves manufacturers of the task of attempting to make a perfect product. An injured consumer cannot recover on the theory that the product would have been safe had the manufacturer incorporated safety features that were developed after the product was made. Consumer advocates have opposed such laws because they allow manufacturers to avoid liability. The advocates argue that these laws discourage innovation because higher safety standards are set as improvements are made.

Businesses have also attempted to set maximum amounts that persons can recover for Punitive Damages. Some states have capped awards for punitive damages. In 1996, President bill clinton vetoed a bill that would have limited punitive damage awards to $250,000, or two times the economic and non-economic damages, whichever amount was greater, stating that it would deprive U.S. families of the ability to fully recover for injuries caused by defective products.

In the same year, the Supreme Court imposed its own version of product liability reform with BMW v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996). The case involved an automobile purchaser who brought action against a foreign automobile manufacturer, American distributor, and dealer based on the distributor's failure to disclose that the automobile had been repainted after being damaged prior to delivery. An Alabama circuit court entered a judgment in the case of Compensatory Damages of $4,000 and punitive damages of $2,000,000. The Supreme Court ruled unanimously the punitive damages award was excessive. In this case, the Court devised three factors to assist trial judges in determining whether a jury's punitive damages award were excessive: (1) the degree of reprehensibility of the defendant's conduct; (2) the disparity between the harm or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages award and the civil or criminal penalties authorized or imposed in comparable cases. The BMW case showed that there were limits under the Constitution to the amount of punitive damages that could be imposed.

Federal Preemption of State Product Liability Law

For the most part, product liability law is governed by state law. Occasionally, the federal government will move to preempt an entire area of product liability law from state control in order to protect a certain group of manufacturers. An example of this is the Federal Biomaterials Access Assurance Act (21 U.S.C.A. §§ 1601-1606), a 1998 law that protects suppliers of materials for implantable medical devices from "unwarranted" suits by laying out the permissible basis of biomaterials supplier liability. Under the act, a biomaterials supplier may only be held liable in three situations: (1) when the supplier is a manufacturer of medical implants under the act; (2) when the supplier is a seller of medical implants; or (3) when the supplier sold materials that did not meet contractual specifications of the manufacturer.

More problematically, a court will have to decide whether an area of product liability is affected by a federal law that does not expressly preempt product liability suits but may indicate the federal government wished such suits to be preempted. For implied Preemption, the Supreme Court has recognized two subcategories: field pre-emption and conflict pre-emption. Under field pre-emption, a state statute is superceded when a federal statute wholly occupies a particular field and takes away state power to supplement it. Conflict pre-emption occurs when compliance with both the federal and state statute is impossible, and the state law stands as an obstacle to the legislative objectives of Congress.

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An example of conflict preemption was Geier v. American Honda Motor, Inc., 529 U.S. 861, 120 S. Ct. 1913, 146 L. Ed. 2d 914, (2000), in which the Court ruled against an injured motorist who brought a defective design action against the automobile manufacturer under District of Columbia tort law, contending that the manufacturer was negligent in failing to equip the automobile with a driver's side airbag. The Court ruled the law suit was preempted in that it actually conflicted with department of transportation (DOT) standard, promulgated under National Traffic and Motor Vehicle Safety Act, requiring manufacturers to place driver's side airbags in some but not all 1987 automobiles. The Court noted the rule of state law imposing duty to install airbag would have presented an obstacle to variety and mix of safety devices and gradual passive restraint phase-in sought by the DOT standard.

Further readings

Gasaway, Robert R. 2002. "The Problem of Tort Reform: Federalism and the Regulation of Lawyers." Harvard Journal of Law and Public Policy 25.

Kinzie, Mark A. 2002. Product Liability Litigation. Albany, N.Y.: West/Thomson Learning.

Moore, Michael J. 2001. Product Liability Entering The Twenty-First Century: The U.S. Perspective. Washington, D.C.: AEI-Brookings Joint Center for Regulatory Studies.

Mulherin, Joseph. 2001. "Geier v. American Honda Motor Company, Inc.: Has the Supreme Court Extended the Pre-Emption Doctrine Too Far?" Journal of the National Association of Administrative Law Judges 21.


Automobiles: Unsafe at Any Speed; Consumer Product Safety Commission; Consumer Protection; Merchantable; Nader, Ralph; Proximate Cause; Sales Law; Tort Law.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

product liability

n. the responsibility of manufacturers, distributors and sellers of products to the public, to deliver products free of defects which harm an individual or numerous persons and to make good on that responsibility if their products are defective. These can include faulty auto brakes, contaminated baby food, exploding bottles of beer, flammable children's pajamas, or lack of label warnings. Examples: Beauty Queen Hair Products makes a hair-permanent kit in which the formula will cause loss of hair to women with sensitive scalps, and Molly Makeup has her hair done at the Bon Ton Beauty Shop and suffers scalp burns and loss of hair. Molly has a claim for damages against Beauty Queen, the manufacturer. Big Boy Trucks makes a truck with a faulty steering gear, bought by Tom Holdtight. The gear fails and Holdtight runs off the road and breaks his back. Holdtight can sue Big Boy for the damages. The key element in products liability law is that a person who suffers harm need not prove negligence, since the negligence is "presumed" and the result is "strict liability" (absolute responsibility) on the seller, distributor and manufacturer. An injured person usually need only sue the seller and let him/her/it bring the manufacturer or distributor into the lawsuit or require contribution toward a judgment. However, all those possibly responsible should be named in the suit as defendants if they are known. (See: warrant, warranty)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

product liability

liability in tort or delict in respect of produce. Essentially an application of the law of tort although the term can be used to cover liability under sale and supply of goods. A famous decision of the House of Lords in 1932 created product liability: ‘a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care.’ Liability was only for fault. A combination of consumer pressure in the late 20th century and the need for harmonization of laws in the EUROPEAN UNION resulted in a Europe-wide regime of STRICT LIABILITY without fault that focuses upon DEFECTS in PRODUCTS, the liability being primarily upon producers of products. In the UK, the directive was initially implemented by the Consumer Protection Act 1987. The defences limit the general rule considerably. It is crucial to know the defences as they affect the scope of liability significantly. They are:
  1. (1) compliance with any requirement imposed by or under any enactment or with any community obligation;
  2. (2) the defender did not supply;
  3. (3) non-commercial supply does not attract liability, but this does not include a commercial supplier who gives his product away as a trial;
  4. (4) it is a defence if the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control. This is often known as the development risks' defence;
  5. (5) the component manufacturer is allowed to show that the defect was a defect in a product in which the defender's product is comprised. This is a defence only if the defect is wholly attributable to the design of the subsequent product or to compliance by the defender with instructions given by the final producer;
  6. (6) contributory negligence is recognized.

Collins Dictionary of Law © W.J. Stewart, 2006


Which of the following are theories of product liability? ›

These are: (1) Breach of warranty; (2) Negligence; (3) Strict liability.

What is the theory of strict liability? ›

Overview. In both tort and criminal law, strict liability exists when a defendant is liable for committing an action, regardless of what his/her intent or mental state was when committing the action.

What are the theories of tort law? ›

We assess the theories by reference to five areas of tort law: (1) the breach element of the action in negligence; (2) liability for negligently inflicted pure economic loss; (3) punitive damages; (4) the defense of illegality; and (5) the rule in Rylands v.

What are the factors of liability? ›

What Four Factors Go Into Proving Liability?
  • How to Prove Liability? As a plaintiff, you must know that the burden of proof lies on you. ...
  • The Duty of Care Was Breached By a Negligent Act. ...
  • The Breach Resulted In an Accident. ...
  • The Accident Resulted In an Injury.
6 Aug 2019

What are the 3 types of product liability claims? ›

Though the range of defective product cases is broad, the claims typically fall into three categories of product liability: (1) defective manufacture; (2) defective design; or (3) failure to provide adequate warnings or instructions concerning the proper use of the product.

What is negligence theory? ›

Negligence is a legal theory that must be proved before you can hold a person or company legally responsible for the harm you suffered. Proving negligence is required in most claims from accidents or injuries, such as car accidents or "slip and fall" cases.

What happened in Rylands v Fletcher? ›

The outcome of Rylands meant that judges would again impose strict liability on defendants who accumulated dangerous things on their land without any need to prove negligence or wrongful intent.

What are two types of tort liabilities? ›

A tort consists of a wrongful acts or injury that lead to physical, emotional, or financial damage to a person in which another person could be held legally responsible. The two main subcategories of tort law are intentional torts and unintentional torts.

What is strict liability and absolute liability? ›

Strict Liability. Absolute Liability. Meaning. Strict Liability implies the legal responsibility of a person for compensating the injured or aggrieved, even when he or she was not at fault or negligent. Absolute Liability arises from inherently hazardous activities like keeping dangerous animals or using explosives.

What is economic theory of tort liability? ›

The economic theory of liability rules is a body of analysis of the economic consequences of tort liability rules. Since tortious harm can be avoided to some degree by taking precautions, the economic theory of liability is grounded in the economics of precautions.

What are the 4 torts? ›

Common torts include:assault, battery, damage to personal property, conversion of personal property, and intentional infliction of emotional distress.

What is pigeon hole theory in torts? ›

According to Salmond, “Tort is a civil wrong for which the remedy is a common-law action for unliquidated damages, and which is not exclusively the breach of contract, or, the breach of trust, or, other merely equitable obligation.”

What is liability insurance risk? ›

What Does Liability Risk Mean? A liability risk is a vulnerability that can cause a party to be held responsible for certain types of losses. Put another way, it is the risk that an individual or business will take an action that causes bodily injury, death, property damage, or financial loss to 3rd parties.

Why is liability The most important factor in determining risk for a business? ›

As a small business owner, you run the risk of losing everything due to a lawsuit resulting from a negligent act performed by you or one of your employees. Therefore, carrying general liability insurance is important to protect what you've worked so hard to build.

What factors impact the cost of liability insurance? ›

Some factors that influence how much you'll pay for this coverage include: Your vehicle's type and size. Each driver's experience level.
If your employees have a work-related injury or illness, workers' compensation insurance can help pay for their:
  • Medical expenses.
  • Lost wages.
  • Disability benefits.
  • Ongoing care costs.

What are the 3 types of defects give examples? ›

There are three types of product defects: design defects, manufacturing defects, and warning/instruction defects. All three types of defects have to do with a product being faulty or inadequate in some way.

Is product liability a tort? ›

The law of product liability is derived from both tort law and contract law. In addition, many state legislatures have enacted product liability statutes that define the scope of products liability within the state. Currently, there is no uniform federal products liability law.

What are the 4 types of negligence? ›

Different Types of Negligence. While seemingly straightforward, the concept of negligence itself can also be broken down into four types of negligence: gross negligence, comparative negligence, contributory negligence, and vicarious negligence or vicarious liability.

What are the 4 elements of negligence? ›

A Guide to the 4 Elements of Negligence
  • A Duty of Care. A duty of care is essentially an obligation that one party has toward another party to exercise a reasonable level of care given the circumstances. ...
  • A Breach of Duty. ...
  • Causation. ...
  • Damages.
12 Nov 2020

What are the 5 types of negligence? ›

Do you want to hold another party accountable for their negligent behavior? Doing so means you and your lawyer must prove the five elements of negligence: duty, breach of duty, cause, in fact, proximate cause, and harm.

What was the decision in Donoghue v Stevenson? ›

Decision/Outcome of Donoghue v Stevenson

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

Is Rylands v Fletcher still strict liability? ›

In English law, liability under the rule in Rylands v Fletcher is currently only 'strict' in the much looser sense that the defendant may be held liable notwithstanding that he has exercised all due care to prevent the escape from occurring.

Is the rule in Rylands v Fletcher strict liability? ›

Simply put; Rylands V Fletcher generally established strict liability for damage which occur from escape of tangible things from a defendant's land.

What are the 4 torts in law? ›

There are numerous specific torts including trespass, assault, battery, negligence, products liability, and intentional infliction of emotional distress. There are also separate areas of tort law including nuisance, defamation, invasion of privacy, and a category of economic torts.

What are three types of laws? ›

  • Criminal Law.
  • Civil Law.
  • Administrative Law.

What are the conditions of liability in tort? ›


To constitute tort, there must be: • a wrongful act or omission of the defendant; • the wrongful act must result in causing legal damage to another; and • the wrongful act must be of such a nature as to give rise to a legal remedy.

What is vicarious liability in law? ›

Vicarious liability is a legal doctrine under which parties can be held indirectly liable for an injury, even though they did not cause it. In California, someone who is vicariously liable may be legally responsible for a plaintiff's medical bills, lost wages, pain and suffering and other losses.

What is the difference between strict and fault based liability? ›

A defendant subject to strict liability must pay damages irrespective of whether she has met, or failed to meet, an applicable standard of conduct. Action that causes harm is all that is required. By contrast, fault-based liability is conceived as liability predicated on some sort of wrongdoing.

Which liability is absolute in tort? ›


As it does not have any exception laid under it in the new rule. Not only it covers public negligence or fault but it also covers even the personal injuries caused due to the misconduct of the neighbour.

What are the commonly used theories for recovery in product liability cases? ›

A plaintiff may rely on one or more of several theories upon which to base his or her argument for recovery in a products liability case. The primary theories for recovery include the following: negligence, tortious misrepresentation, breach of warranty, and strict liability in tort.

What are the commonly used theories for recovery in product liability cases quizlet? ›

Which of the following are commonly used theories of recovery in product liability cases? Negligence, strict product liability, and breach of warranty.

What law is product liability based on? ›

The law of product liability is derived from both tort law and contract law. In addition, many state legislatures have enacted product liability statutes that define the scope of products liability within the state.

Is negligence a theory of liability? ›

The theory of liability in a particular case will also be based on the type of personal injury and the specific facts surrounding your case. Generally speaking, personal injury lawsuits tend to fall under one of the following three theories of liability: negligence, strict liability, and breach of warranty.

What are the four 4 elements required to be proven in a products liability action based on negligence? ›

In order to establish negligence, you must be able to prove four “elements”: a duty, a breach of that duty, causation and damages.

What are the elements of strict liability? ›

A plaintiff suing under a theory of strict liability will need to show that there was a defect, that the defect actually and proximately caused the plaintiff's injury, and that the defect made the product unreasonably dangerous.

What is product liability negligence? ›

The Theory of Negligence

Negligence claims under product liability law include design errors, careless mistakes in the manufacturing of a product, and failure to warn consumers of the dangers associated with a product.

Which theory used in personal injury products liability cases focuses on the defendant's conduct? ›

In negligence, attention is focused on the defendant's conduct, while in strict liability, attention is focused on the defendant's product. The negligence of the defendant or the plaintiff is irrelevant in strict liability.

What are the three categories of intentional torts? ›

Under tort law, seven intentional torts exist. Four of them are personal: assault, battery, intentional infliction of emotional distress, and false imprisonment. The other three are trespass to chattels, trespass to property, and conversion.

What are the elements of negligence? ›

Four elements are required to establish a prima facie case of negligence:
  • the existence of a legal duty that the defendant owed to the plaintiff.
  • defendant's breach of that duty.
  • plaintiff's sufferance of an injury.
  • proof that defendant's breach caused the injury (typically defined through proximate cause)

What are three types of product defects? ›

The three types of product defects are outlined below.
  • Design Defects. A design defect occurs when the actual design of the product is faulty. ...
  • Manufacturing Defects. In contrast to design defects, manufacturing defects only affect certain units or batches of a product, rather than all products in a line. ...
  • Labeling Defects.
20 May 2020

What is the difference between product liability and strict liability? ›

Essentially, with product liability claims you must prove that your injuries were a result of a defect, carelessness from another party, or negligence. With strict liability cases, you must prove that you used your product as intended.

What is the standard for product liability? ›

With regard to products liability, a defendant is liable when the plaintiff proves that the product is defective, regardless of the defendant's intent. It is irrelevant whether the manufacturer or supplier exercised great care; if there is a defect in the product that causes harm, he or she will be liable for it.


1. Can You Allege Different Theories of Liability in a Civil Lawsuit in New York?
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2. Theories of Liability | Kinds of Liability
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3. Liability |Kinds of Liability| Jurisprudence
(Multi-aspect Knowledge)
4. Product Liability Theories by Professor Brvenik
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5. Ch 24 - 1st: Six theories of product liability
6. Theories of Tortuous Liability
(Dr. Vaishali Jadhav)

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