Documentation:Torts/Negligence Products

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TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index
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Negligence in producing or supplying harmful products
Negligence in product liability is the liability faced by manufacturers and/or designers when they put out a product that is defective and causes harm to the consumer.[1] Product liability may be broken down into three major classes: (1) negligent design, development, and testing; (2) negligent manufacturing, and; (3) negligent distribution, marketing, and sale.[2] These are three distinct negligence claims and should not be argued as one cause of action in negligence.[3]

The historical development of product liability

Origins

The production and supply of harmful products was not always recognized as grounds for a claim in tort. Previously, the 19th century case Winterbottom v. Wright held that the law only recognized a duty of care in the context of contracting parties.[4] Without contractual privity, a manufacturer would not face liability for injuries caused by a defective product.[4] This effectively meant that a manufacturer was responsible to the immediate buyer but not necessarily to the ultimate consumer.[5]

Courts later developed a category for products considered "dangerous in themselves" or "inherently dangerous", such as explosives, guns, and poisons.[6][7] Such products were associated with potential liability regardless of whether there was contractual privity.[6] Nonetheless, this evolution in law still precluded consumers from recovering in tort for injuries sustained from defective products that would ordinarily be harmless.[6]

That barrier to recovery was eventually alleviated in the landmark case Donoghue v. Stevenson. There, the House of Lords found that a manufacturer owes a duty of care to the consumer and can be liable for an otherwise safe product made harmful by negligence, even without any contractual relations.[8]

Canadian tort development

In Canada, product liability is a well-established category of negligence, and as such, general principles of negligence law will apply.[9] Accordingly, a plaintiff must prove all the regular elements of negligence: the defendant owed the plaintiff a duty of care, the defendant's behaviour breached the duty of care, the plaintiff suffered damage, and the plaintiff's damage was caused by the defendant's breach in fact and in law.[10] On top of these general elements, however, courts have developed specific guidelines for analysis in product liability claims.[9]

Types of product liability

Negligent design, development, and testing

Manufacturers owe a duty to consumers to employ reasonable efforts to reduce inherent risks in their products.[11] For a claim in negligent design to succeed, the plaintiff must prove that the product as designed was not reasonably safe according to a two-part test: there was a substantial likelihood of harm; and it was feasible to design the product in a safer manner.[12] Demonstrating liability in product development or testing requires the plaintiff to show that a safer alternative to the product would have been identified if it had not been for the defendant's negligence.[13]

Negligent manufacturing

"Hot Coffee"
Slightly angled shot of a McDonald's restaurant, showing its glass doors and windows.
The "Hot Coffee" documentary spotlights four American civil cases, including the infamous case of Liebeck v. McDonald's Restaurants where a plaintiff sued the fast food chain after suffering third-degree burns from a cup of overly hot, "defective" coffee.[14]

Manufacturers owe a duty to consumers to make products that are reasonably safe in their ordinary course of use.[8] To show a breach of this duty, the plaintiff must prove a three-part test: the product was defective in that it was not manufactured in accordance with the specifications that the manufacturer intended; the defect was a result of the manufacturer’s failure to take reasonable care in the manufacturing process; and the plaintiff sustained harm caused by the product's defective condition.[15]

Negligent distribution, marketing, and sale

Manufacturers owe a duty "to warn consumers of dangers inherent in the use of its product of which it has knowledge or ought to have knowledge."[16] In demonstrating a breach in the duty to give adequate warning, the plaintiff must show that the defendant "failed to provide the appropriate level of specificity in the product monograph."[17]

Defences to product liability claims

Manufacturers faced with a product liability suit may have a number of defences available to them. One defence that can absolve liability is the plaintiff's misuse of the product.[18] The test is whether the misuse was so unlikely that it was not reasonably foreseeable to the manufacturer.[18] However, a foreseeable misuse still imposes a duty on the manufacturer to provide warning of the danger associated with that misuse.[18]

The learned intermediary defence may be raised where a manufacturer sells a product, typically some type of drug or medical device, to a professional.[18] If the manufacturer dispenses their duty to advise the professional of the product's risks, and the professional then improperly prescribes the use of the product to the public, liability will fall on the professional rather than the manufacturer.[18]

Another defence is the plaintiff's assumption of risk, which requires the manufacturer to clearly show that the plaintiff's experience or knowledge resulted in an appreciation of the risk of injury and a voluntary assumption of that risk.[19]

Canadian product legislation

Outside of the realm of tort liability, Canadian provinces have passed legislation governing the rights of buyers and sellers where they have a contract for the sale of goods. Such legislation often lays out the standard that goods must meet. British Columbia's Sale of Goods Act, for example, provides that there is an implied condition that the goods sold or leased in a contract should match the description given.[20] The Act also highlights the circumstances under which there is an implied condition as to the quality or fitness of an item.[21]

Legislation
British Columbia: Sale of Goods Act, RSBC 1996, c 410, ss 17, 18, 56(2).
Alberta: Sale of Goods Act, RSA 2000, c S-2, ss 15, 16.
Manitoba: The Sale of Goods Act, CCSM c S10, ss 15, 16.
New Brunswick: Sale of Goods Act, RSNB 2016, c 110, ss 19, 20.
Newfoundland and Labrador: Sale of Goods Act, RSNL 1990, c S-6, ss 15, 16.
Nova Scotia: Sale of Goods Act, RSNS 1989, c 408, ss 16, 17.
Ontario: Sale of Goods Act, RSO 1990, c S.1, ss 14, 15.
Prince Edward Island: Sale of Goods Act, RSPEI 1988, c S-1, ss 15, 16.
Québec: Consumer Protection Act, CQLR c P-40.1, ss 37–40.
Saskatchewan: Sale of Goods Act, RSS 1978, c S-1, ss 15, 16.

Product liability in the United States

In the news
Product liability in the age of automation
A California jury found Tesla not responsible for a fatal accident which the plaintiffs claimed was caused by the vehicle's allegedly defective "Autopilot" feature, an advanced driver-assistance system. This case is one of the first jury decisions on driver-assistance software in the context of a fatal accident.[22]

Product liability in the United States, though once governed by contractual privity and warranty, has at least partially shifted toward a standard of strict liability.[5] Different states have different legislation that vary the rules around product liability.[23]

Similar to Canada, the U.S. product liability category is organized into three types of defects: manufacturing defects, design defects, and failure to warn. Manufacturing defects are generally held to a strict liability standard.[24] This means that a manufacturer or seller must compensate the person injured by a defective product even in the absence of negligence.[5] Product designs and warnings, meanwhile, are generally held to a negligence-akin standard.[25]

Manufacturing defects

Strict liability renders manufacturers responsible for any harm that is caused by a defective product that the Court views as unreasonably dangerous.[24] The tort of product liability in the United States is grounded in landmark case Greenman v. Yuba Power Products, Inc. This case laid the framework for strict liability in manufactured product defects, and has been adopted by a majority of states through common law or statute. The plaintiff, who experienced severe injuries after using a drill he purchased from the defendants, sought remedies for breach of warranty and negligence. However, the Court imposed strict liability, stating:

"A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. Recognized first in the case of unwholesome food products, such liability has now been extended to a variety of other products that create as great or greater hazards if defective."

Such product liability cases in the U.S. generally do not require the plaintiff to show a breached a standard of care, as is required under the tort of negligence. Instead, the plaintiff only needs to prove the product was indeed defective. In addition, product liability in the United States is not governed by the law of contract warranties.

Exemptions from strict product liability

Courts have exempted the application of strict liability from cases involving products that are "unavoidably unsafe", such as medical devices, for which there may be concerns not to impair scientific innovation. In such cases, the standard may be one of negligence rather than strict liability.

In addition, manufacturers in the United States may be able to overcome the strict liability standard if they are able to satisfy either of two common law tests:

  1. The risks utility test: defendant must provide evidence that the product with a design defect has utility that outweighs the inherent risk of harm.
  2. Consumer expectation test: defendant must prove that reasonable consumer would not find the product to be defective when using it in a reasonable manner.

Discussion questions

  • What is the nature and scope of a manufacturer’s duty to warn consumers of dangers inherent in the use of its product? What is the relevant standard of care?
  • What is the purpose of sale of goods statutes? How do the requirements of such statutes compare to the duties emanating from the product liability tort?
  • What are the advantages and problems of tort law’s treatment of product liability as a strict liability tort versus a category of negligence?


  1. ↑ Kairos Angaddol (19 July 2023). "Product liability in Canada: who is at fault?". Lexpert.
  2. ↑ Martin v. Astrazeneca Pharmaceuticals PLC, 2012 ONSC 2744 at para 129.
  3. ↑ Martin v. Astrazeneca Pharmaceuticals PLC, 2012 ONSC 2744 at para 130.
  4. ↑ 4.0 4.1 Winterbottom v. Wright (1842), 152 ER 402.
  5. ↑ 5.0 5.1 5.2 Kirkpatrick, Jerry (2009). "Product Liability Law: From Negligence to Strict Liability in the US". Business Law Review. 30(3): 48–56.
  6. ↑ 6.0 6.1 6.2 Buchan v. Ortho Pharmaceutical (Canada) Ltd., 1984 CanLII 1938 (ONSC).
  7. ↑ Price v. Smith & Wesson Corp., 2021 ONSC 1114.
  8. ↑ 8.0 8.1 Donoghue v. Stevenson, [1932] UKHL 100 (BAILII) (§13.1.1).
  9. ↑ 9.0 9.1 Parrish, Michael (2017). "Product Liability 101". Continuing Legal Education Society of British Columbia: 1.1.2. (§19.1).
  10. ↑ Mustapha v. Culligan of Canada Ltd, 2008 SCC 27 (§17.1.2) at para 3.
  11. ↑ Gallant v. Beitz; Nissan Automobile Co. (Canada) Ltd., Third Party, 1983 CanLII 1905 (ONSC).
  12. ↑ Tabrizi v. Whallon Machine Inc., 1996 CanLII 3532 (BCSC) at para 35.
  13. ↑ Martin v. Astrazeneca Pharmaceuticals Plc, 2012 ONSC 2744 at para 138.
  14. ↑ HBO (28 September 2011). "Hot Coffee". WatchDocumentaries.
  15. ↑ James v. Johnson & Johnson Inc., 2021 BCSC 488 at para 78.
  16. ↑ Hollis v. Dow Corning Corp., 1995 CanLII 55 (SCC) at para 20.
  17. ↑ Martin v. Astrazeneca Pharmaceuticals Plc, 2012 ONSC 2744 at para 159.
  18. ↑ 18.0 18.1 18.2 18.3 18.4 Borden Ladner Gervais (2019). "Product Liability Handbook: The Canadian Legal Landscape". BLG: 28.
  19. ↑ Holowaty v. Bourgault Industries Ltd., 2007 SKQB 2 at para 60.
  20. ↑ Sale of Goods Act, RSBC 1996, c 410, s 17.
  21. ↑ Sale of Goods Act, RSBC 1996, c 410, s 18.
  22. ↑ Steven F Rosenhek & Christopher Casher (2023). "The Verdict Is In: California Jury Finds That Tesla’s “Autopilot” Feature Not Responsible For Fatal Accident". Fasken.
  23. ↑ Legal Insights (6 January 2021). “Understanding the Interplay Between Strict Liability and Product Liability”. LexisNexis.
  24. ↑ 24.0 24.1 Mohrbutter, Jason (2012). "Harrington v Dow Corning Corp. and Social Utility: Unfit For Their Purpose Within Product Liability Negligence Law". Saskatchewan Law Review. 75:2: 269–306.
  25. ↑ Philips, Jerry J (1996). "The Unreasonably Unsafe Product and Strict Liability". Chicago-Kent Law Review. 72(1): 129–167.
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