Products liability law continues to erode traditional legal principles of culpability, although it got a bit of a comeuppance in a recent case. Candance Thorp sued Jim Beam Brands, a liquor manufacturer, seeking $4 million for lifelong support of her four-year-old son, born with certain physical defects diagnosed as “fetal alcohol syndrome.” Thorp admitted to being an alcoholic and to drinking frequently to the point of passing out during her pregnancy. She claimed that there was specific evidence about the deleterious effects of alcohol on fetuses, and that had she been warned, she would have abstained from drinking during her pregnancy. The jury concluded that the dangers of drinking during pregnancy are common knowledge and found in favor of Jim Beam. But the case should never have gotten that far.
In order to recover under traditional tort principles, Thorp would have had to prove negligence on the part of the liquor manufacturer. Under products liability law, a twentieth
century invention, a basic tort element is lopped off. In order to recover damages, a plaintiff must establish that the product contained a “defect” which injured him but need not prove any negligence on the part of the manufacturer. This is the theory underlying the highly publicized cases against asbestos manufacturers, cigarette companies, and manufacturers of the drug DES, all of whom have argued that they had no idea their products were dangerous (if, in fact, they were).
By ignoring a basic legal principle, products liability law shifts injury to a “deep pocket” when no one is at fault. The law properly concerns itself only with wrongdoing, not with redistributing costs where no party has done anything wrong. That is, the law does not properly take account of injuries suffered in the normal course of living or social interaction where there is no culpability. Purchasers have a right to expect manufacturers to act with due care, but they are not entitled to omniscience or omnipotence. Despite the exercise of due care, products may be discovered to be dangerous years after they were sold; the loss in such a situation should remain where it falls.
As products liability law now operates, questions concerning the existence of a “defect,” the causal connection between the defect and the injury, and the plaintiff’s awareness of the “defect” are issues that normally go to the jury and are not resolved on summary judgment, leaving the way open for a war of dubious “scientific experts” and for juries to decide – on any basis they wish – who should bear the cost as between guiltless parties.
Two similar cases are pending in Washington State courts.
Copyright © The Association for Objective Law. All rights reserved. Republished in Capitalism Magazine by permission of TAFOL.
