Negligence Theory in the United States

Negligence is a second possible cause of action for products-liability claimants. A main advantage is that no issues of privity are relevant, but there are often problems of proof; there are a number of robust common-law defenses, and federal preemption is a recurring concern for plaintiffs’ lawyers.

Negligence is the second theory raised in the typical products-liability case. It is a tort theory (as compared to breach of warranty, which is of course a contract theory), and it does have this advantage over warranty theory: privity is never relevant. A pedestrian is struck in an intersection by a car whose brakes were defectively manufactured. Under no circumstances would breach of warranty be a useful cause of action for the pedestrian—there is no privity at all. Negligence is considered in detail (in the entries about) … Tort Law …; it basically means lack of due care. (1)

Problems with Negligence Theory

Negligence is an ancient cause of action and, as was discussed in the torts chapter, it carries with it a number of well-developed defenses. Two categories may be mentioned: common-law defenses and preemption.

Common-Law Defenses against Negligence

Among the problems confronting a plaintiff with a claim of negligence in products-liability suits (again, these concepts are discussed in the torts chapter) are the following:

• Proving negligence at all: just because a product is defective does not necessarily prove the manufacturer breached a duty of care.
• Proximate cause: even if there was some negligence, the plaintiff must prove her damages flowed proximately from that negligence.
• Contributory and comparative negligence: the plaintiff’s own actions contributed to the damages.
• Subsequent alteration of the product: generally the manufacturer will not be liable if the product has been changed.
• Misuse or abuse of the product: using a lawn mower to trim a hedge or taking too much of a drug are examples.
• Assumption of the risk: knowingly using the product in a risky way. (2)

Preemption

Preemption (or “pre-emption”) is illustrated by this problem: suppose there is a federal standard concerning the product, and the defendant manufacturer meets it, but the standard is not really very protective. (It is not uncommon, of course, for federal standard makers of all types to be significantly influenced by lobbyists for the industries being regulated by the standards.) Is it enough for the manufacturer to point to its satisfaction of the standard so that such satisfaction preempts (takes over) any common-law negligence claim? “We built the machine to federal standards: we can’t be liable. Our compliance with the federal safety standard is an affirmative defense.”

Preemption is typically raised as a defense in suits about:

• cigarettes,
• FDA-approved medical devices,
• motor-boat propellers,
• pesticides, and
• motor vehicles.

This is a complex area of law. Questions inevitably arise as to whether there was federal preemption, express or implied. Sometimes courts find preemption and the consumer loses; sometimes the courts don’t find preemption and the case goes forward. According to one lawyer who works in this field, there has been “increasing pressure on both the regulatory and congressional fronts to preempt state laws.” That is, the usual defendants (manufacturers) push Congress and the regulatory agencies to state explicitly in the law that the federal standards preempt and defeat state law. (C. Richard Newsome and Andrew F. Knopf, “Federal Preemption: Products Lawyers Beware,” Florida Justice Association Journal, July 27, 2007). (3)

Resources

Notes

1. “Business and the Legal Environment”, by Don Mayer, Daniel M. Warner and George J. Siedel.
2. Id.
3. Id.

See Also