1. Product Safety The BIG question is: How safe is safe enough?

2. What are the possible theories about product safety? The “Classic” theory – The company owes the consumer a product that lives up to the explicitly stated safety claims, plus warnings about known hazards that are not obvious. The “Due Care” theory – The company owes the consumer a product that is designed and manufactured to be as safe as possible, plus warnings about hazards that cannot be avoided. The “Social Costs” theory – The company should meet the “Due Care” theory requirements, plus pay for any harm that may occur.

3. Lawnmower design provides a good example of these theories. “Classic theory” holds up to the1960s – ungoverned engines, no deflection chute, no roll-back protection, BUT warnings in the instructions about the lawnmower projecting rocks as missiles, etc. The “Due Care” theory takes over beginning in the 1970s and 80s – safer designs, e.g., governed engines, deflection chutes, “dead-man” clutches, etc., PLUS warnings. The “Social Cost” theory holds today in tort litigation over lawnmower injuries. “If your lawnmower injury was the result of a defective lawn mower or lawnmower part then you may be entitled to monetary damages…. A personal injury lawyer can best advise you on the merits of your case.” (Internet legal ad.)

4. How do these theories answer the question, “How safe is safe enough?” The Classic theory – As safe as the manufacturer says it is. It is up to the consumer to decide if this is safe enough to buy and use. The Due Care theory – As safe as is possible given the current understanding by the manufacturer about how and why consumers use the product and what kinds of problems come up during this use. Note this would be an evolving standard. The Social Costs theory – It is never safe enough, no matter how hard the manufacturer tries. That’s why the manufacturer will pay for all injuries.

5. What legal doctrines are associated with these theories about product safety? The Classic theory ↔ The legal doctrine of express warranty. –A written promise about the safety of the product. The Due Care theory ↔ The legal doctrine of implied warranty. –An unspoken and unwritten guarantee that the product is safe during the ordinary uses for which it is intended. The Social Costs theory ↔ The legal doctrine of strict liability. –A legal obligation to compensate consumers for any damages stemming from use of a product.

6. “Liability” Article by Peter Huber

7. What is strict liability? It is the legal doctrine that a manufacturer is liable for the consequences of any and all defects in the manufacture and design of a product, even if all possible care has been exercised in the production of the product. In terms of our possible theories about product safety, this falls under the Social Costs theory. Since it is a prevalent doctrine in the area of tort liability, we do, in fact, live in a Social Costs legal environment.

8. Does strict liability make ethical sense? Moral blame usually stems from ill will or from negligence. –An example of ill will: John is mad at Mary and trips her on the stairs to get even. She falls down the stairs and is injured. John is morally blameworthy. –An example of negligence: Caroline is tired and carelessly throws her clothes on the floor at the top of the stairs. Mom trips and falls down the stairs and is injured. Caroline is morally blameworthy. True accidents usually do not have moral blame assigned in them. However, strict liability assigns blame even when there is no ill will and no negligence.

9. Why did we get into strict liability? Manufacturers are sometimes slow in fixing manufacturing and product defects. –Successful tort litigation can provide a good push to fix things. Manufacturers call this “extinguishing liability.” The injured consumer certainly does not deserve his or her injury, and they arguably deserve relief. –Strict liability, for all practical purposes, insures the consumer and attaches the insurance premium to the cost of the product. There are, however, other ways to address these concerns.

10. “Fear of Living” Article by Henry Fairlie

11. What can we say about the “social cost” theory of product safety? Fairlie says it has basically screwed us up, and will drive our economy and society to a stand-still. –Although he makes his point in terms of strict liability.

12. Fairlie says we have become a bunch of fearful risk-avoiders. The change between Apollo fire in 1967 and the Challenger disaster in 1986. Baby-boomer self-centered hedonists. The destructive rise of tort law (suspension of due process to suppress and/or correct risk). The cancerous growth or regulations. Collapse of the political party system into a tyranny of special interest groups.

13. What is the cost of our obsession about risk according to Fairlie? Metaphoric answer – No Viking ships or Columbus voyages. A stagnation of technological innovation. –For example, the specific case of nuclear power. According to Scientific American, the average coal power plant emits more than 100 times as much radiation per year than a comparatively sized nuclear power plant does, in the form of toxic coal waste known as fly ash. Etc.

14. “Calculating Risks: It’s Easier Said Than Done” Article by John Nesmith

15. Can consumers accurately evaluate the risks to them? This is required under the Classic theory about product safety, and Nesmith says, “No.” OverestimateUnderestimateExamples No control Immediate All or nothing Manmade Don’t like Imposed Control Chronic Has degrees Natural Use ourselves Voluntary Nuke power vs. Harley Anthrax vs. radon Flying vs. driving X-rays vs. solar Big Mac vs. Fattburger 2 nd hand vs. smoker

16. So, what’s Nesmith’s point? Since we can’t accurately evaluate risk, a theory of product safety that puts the burden on us makes no sense. He does not use this terminology, but out with the “classic” theory and in with the “due care” theory.

17. So, where does that leave us regarding product safety? Huber and Fairlie agree that the Social Costs theory, at least in the form of strict liability, is –Shaky legal doctrine –Economically and socially disastrous –And I would add, ethically suspect Nesmith argues that the Classic theory rests on false and impossible assumptions. So, up with the Due Care theory, although companies have to remember that strict liability still lives in tort-land.