Products Liability--Some Observations About Allocation of Risks

Virtually all of the activities of mankind involve the use of some product. Consequently, nearly all losses in the nature of physical damage to persons or things, and a great deal of the economic losses flowing from inferior or unfit products, are factually caused by characteristics or conditions of products, or at least occur during the use of products. Therefore, when fault, in the sense in which fault has been used in the Anglo-American law of torts (a usage which frequently results in the imposition of liability without personal fault), is abandoned as a basis for shifting or allocating losses, some rules and principles must be substituted in its place in order to delimit liability; otherwise, the result would be a revolutionary scheme, involving the imposition of all losses on the makers of products as a class rather than upon the ultimate purchasers as a class. It has been suggested that something similar to this may indeed occur.

Even now, if it must be shown that the harm resulted from a defective condition of a product, some courts have assumed the existence of a defective condition from (1) the unexplained occurrence of an accident in the course of an allegedly careful use of the product, and (2) the often unreliable testimony of an injured user that he was careful in the handling and use of the product. This practice lends support to the proposition that, realistically, the maker of the product is a risk distributor for all losses other than those attributable to certain known causes. This problem will be discussed in more detail below, since the attitude of the courts concerning questions of proof and sufficiency of evidence is as important as are the substantive rules for defining the "risks" to be borne.