Theories of Liability
Submitted to: Submitted by:
Mr. Bhupinder singh Sarthak kapoor (19213229)
CONTENT
INTRODUCTION
HISTORICAL DEVELOPMENT
THEORIES:
1. Negligence
2. Breach of Warrenty
3. Strict Liability
4. Misrepresentation
Theories of Liability
Introduction:
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 a
n individual who had a legal obligation either omitted to do what should have been done or did s
omething that should not have been done.
A manufacturer can be held liable for negligence if lack of reasonable care in the production, des
ign, or assembly of the manufacturer's product caused harm. For example, a manufacturing comp
any might be found negligent if its employees did not perform their work properly or if managem
ent 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 repre
sentation 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 asser
tions.
Misrepresentation in the advertising and sales promotion of a product refers to the process of givi
ng consumers false security about the safety of a particular product, ordinarily by drawing attenti
on away from the hazards of its use. An action lies in the intentional concealment of potential ha
zards or in negligent misrepresentation. The key to recovery on the basis of misrepresentation is t
he plaintiff's ability to prove that he relied upon the representations that were made. Misrepresent
ation 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 individu
als 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 pri
vity, which states that an injured person can sue the negligent person only if he or she was a part
y 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 mean
t 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 becau
se 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 de
nying an injured plaintiff a remedy. Soon privity of contract was not required where the seller fra
udulently 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 exceptio
ns. Some courts dropped the Fraud requirement. A concealed defect coupled with some sort of "i
nvitation" by the defendant to use the product was enough. In a few cases, the term imminently d
angerous was construed to mean especially dangerous by reason of the defect itself and not nece
ssarily dangerous per se. For example, products intended for human consumption, a defective sca
ffold, and a coffee urn that exploded would be considered imminently dangerous.
Theories:
1). Negligence
The duty to guard against negligence and supply a safe product applies to everyone in the chain o
f distribution, including a manufacturer who carelessly makes a defective product, the company t
hat uses the product to assemble something else without discovering an obvious defect, and the v
endor who should exercise greater care in offering products for sale. These individuals owe a dut
y of care to anyone who is likely to be injured by such a product if it is defective, including the in
itial 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 o
r 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 care
fully. The product's container or packaging must be adequate. The manufacturer must also furnis
h adequate warnings and directions for use with the product. The seller is proscribed from misrep
resentig the safety or character of the product and must disclose all defects.
2).Breach of Warranty
Warranties are certain kinds of express or implied representations of fact that the law will enforc
e against the warrantor. Product liability law is concerned with three types of warranties involvin
g 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 i
n 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 throug
h a sample or model, which is made part of the basis of the bargain .
An express warranty can be words spoken during negotiations or written into a sales contract, a s
ample, an earlier purchase of the same kind of product, or claims made in publicity or on tags att
ached 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 g
oods unless expressly and clearly limited or excluded by the contract. However, with respect to d
amages for personal injury, the UCC states that any such contractual limitations or exclusions are
"prima facie unconscionable" and cannot be enforced.
The action for breach of one of these warranties has aspects of both tort and contract law. Its grea
test value to the injured product user lies in the fact that liability for breach is strict. No negligenc
e 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 se
ller receive reasonably prompt notice of the breach as a condition to his or her liability, the requir
ement 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.
3).Strict Liability
The rule of strict liability applied in product liability suits makes a seller responsible for all defec
tive items that unreasonably threaten the personal safety of a consumer or the consumer's propert
y. The vendor is liable if he or she regularly engaged in the business of selling such products, wh
ich 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 boug
ht the product somewhere else and had no direct dealings with the vendor.
4).Misrepresentation
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.