“The “strict product liability” theory of recovery exposes a broad range of defendants to legal accountability for “defective” products. Liability attaches upon proof of the product “defect” and a sufficient causal connection between defendant, the product and plaintiff’s injury. [] ‘In order for there to be strict liability, the product does not have to be unreasonably dangerous—just defective.’ While negligence is often pleaded as an alternative theory, the strict liability cause of action does not require proof of “duty” and “breach” (conduct falling below the applicable “reasonable” standard of care). In other words, negligence focuses on “reasonableness” of the defendant’s conduct; but strict liability ordinarily is predicated solely on the nature of the product (although defendant’s conduct becomes important in “failure to warn” strict liability cases. Strict product liability is an outgrowth of predominating public policy considerations. The concept is that all those involved in the marketing “enterprise,” and who have reaped profits by placing a defective product in the stream of commerce, should bear the costs of injuries caused by that product. The policy considerations are that (1) the enterprise defendants, unlike the consumers, can anticipate or guard against the recurrence of hazards, (2) the cost of injury may be an “overwhelming misfortune” to the injured consumers, whereas the enterprise defendants can insure against the risk and distribute the cost among the consuming public, and (3) it is in the public interest to discourage the marketing of defective products.” The theory permits the imposition of tort liability against all those directly in the marketing chain—e.g., not only manufacturers, but also wholesalers, distributors and retailers. ‘Regardless of the identity of a particular defendant or his position in the commercial chain, the basis for his liability remains that he has marketed or distributed a defective product.’ All those involved in the distribution chain play a part in stimulating consumer demand for the product through advertising and marketing techniques in order to enhance their own profits. By so doing, they necessarily increase the number of persons exposed to risk of injury from the product. Having increased the risk, they should bear the burden of resulting injuries. This approach also has a beneficial economic effect: The cost of insuring against the risk in handling defective goods drives up their cost and puts them at a competitive disadvantage to safer goods which will be less expensive for consumers. In turn, there is a strong financial incentive to produce and market only safer goods.
Recovery is not limited to the immediate purchaser of the product or the immediate consumer to whom the product was marketed. Any person whose injury was reasonably foreseeable may bring a product liability action. This includes, for example: Innocent bystanders injured by defective automobiles. Employees injured by defective equipment owned or leased by their employers. A neighbor of a homeowner in whose garage a water heater had been defectively installed. An onlooker blinded in one eye by debris kicked up by a lawnmower. Plaintiff injured by a chemical in gasoline that invaded groundwater via leaking tanks at gasoline stations supplied by defendant gasoline refiner. Whether plaintiff’s injury was foreseeable is an issue for the trier of fact to be considered on the particular facts of each case.
A prima facie case of strict product liability requires plaintiff to demonstrate that (1) the product was legally “defective”, (2) the product defendant was causally connected to the defect, and (3) plaintiff suffered injury as a proximate result of the defect. As will be seen, however, strict liability has not been extended to all “products” and product providers; and certain defendants are shielded from liability by recognized immunity defenses. Strict product liability is not restricted to injuries arising after a retail sale or equivalent transaction; nor is it limited to injuries arising from consumer use. Once a product is placed into the market, a manufacturer or distributor may be strictly liable for injury arising from the product (e.g., storage or movement of the product) even if the injury occurs before the product reaches the ultimate consumer.
Strict product liability is imposed without fault primarily for policy reasons. To enforce a disclaimer—even if freely agreed to by the consumer—would contravene that policy by allowing a product supplier to define the scope of its responsibility. Thus, ‘no written agreement can operate to allow a supplier of defective products to avoid strict products liability.’ Nor will courts enforce plaintiff’s agreement to “assume the risk” of a potentially defective product. The rule against product liability disclaimers cannot be circumvented by casting the disclaimer in terms of express assumption of the risk.
A product is defective in design if it failed to perform as safely as an ordinary consumer would expect (or have a right to expect) when using the product in an intended or reasonably foreseeable manner. Compliance with industry standards may be a defense to a negligent design action. But it is not a defense to a strict product liability action based on the consumer expectation test. The issue in such an action is not whether defendant exercised reasonable care but, rather, whether the product failed to perform as the ordinary consumer would expect.”
[California Practice Guide: Personal Injury [certain citations omitted]]
