Products Liability and Strict Liability: How the Bar Exam Tests Them

Torts questions about injuries from products are common on the MBE and appear on the MEE as well. They're tricky because the same facts can support several theories. Here's how to organize them.

Strict products liability

The rule: A commercial supplier of a product is strictly liable for physical harm caused by a product that was defective when it left the supplier's control, when the product was used in a reasonably foreseeable way.

Proper defendants: anyone in the business of selling that type of product, including manufacturers, distributors, and retailers. A one-time seller, like someone selling their used car, generally isn't a proper defendant.

The three kinds of defect

Manufacturing defect. The product departs from its intended design, like a batch of tires with a flaw from the factory. Liability is strict, even if the manufacturer was careful.

Design defect. Every unit is made as designed, but the design itself is unreasonably dangerous. Courts use two main tests:

• Consumer expectation test: the product is more dangerous than an ordinary consumer would expect.
• Risk-utility test: the risks of the design outweigh its benefits, often shown by a reasonable alternative design that was feasible and would have reduced the risk. The Third Restatement requires a reasonable alternative design in most cases.

Warning defect. The product lacks adequate instructions or warnings about foreseeable risks that aren't obvious. Warnings need to reach the user in a way that's clear enough to be effective.

Other theories on the same facts

Negligence. The plaintiff can also sue in negligence, but must prove the defendant failed to exercise reasonable care. A retailer that merely resold a sealed product often isn't negligent even if the product was defective.

Implied warranty of merchantability. Under the UCC, a merchant who sells goods of that kind warrants that they're fit for their ordinary purpose.

Implied warranty of fitness for a particular purpose. Applies when the seller knows the buyer's particular purpose and that the buyer is relying on the seller's skill to select suitable goods.

Defenses

• Comparative fault: in most jurisdictions, the plaintiff's fault reduces recovery in a strict liability action.
• Assumption of the risk: a plaintiff who knowingly and voluntarily encountered a known defect may be barred or have recovery reduced, depending on the jurisdiction.
• Misuse or modification: unforeseeable misuse or substantial alteration of the product may defeat liability. Foreseeable misuse doesn't.

Abnormally dangerous activities

A separate strict liability rule: a defendant who carries on an abnormally dangerous activity is strictly liable for harm caused by the dangerous propensity that made it abnormally dangerous. An activity qualifies when it creates a foreseeable and highly significant risk of physical harm even when reasonable care is used, and it isn't a matter of common usage. Blasting and storing large quantities of explosives are classic examples.

The harm must come from the risk that made the activity dangerous. A blasting company isn't strictly liable because a truck carrying its workers hit a pedestrian.

Where Lexora Prep fits

Products liability rewards knowing the exact elements of several related rules and when each applies. Lexora Prep is a Black Letter Law rule-training platform where you practice Torts rules like these from memory, with modes for typing full rules, filling blanks, identifying elements, and ordering. It tracks the pieces you miss, such as the reasonable alternative design requirement, and brings those rules back for review.

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About Lexora Prep

Lexora Prep is a Black Letter Law rule-training and essay practice platform for bar exam candidates. It gives you 700+ concise rules across 8 bar-tested subjects and trains recall through five modes: Typing, Fill Blank, Rule Elements, Ordering, and Flashcards. Lexora tracks the elements you miss, brings weak rules back for review, and organizes study around your weak areas, review history, and exam date. Essay Practice adds 120+ original essays you write in the platform, with detailed feedback on issue spotting, rule accuracy, application, conclusions, and organization.

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