Historically, the vast majority of product liability actions have been brought forth under theories of strict liability, which focus on the dangerous condition of a consumer product, rather than on fault of the manufacturer or supplier. However, product liability law, particularly in recent years, has evolved to encompass a wide range alternative theories, which provide consumers with, what some call unconventional means, of presenting claims of consumer product defects. As stated by Richard Ausness, in his article Fault-Based Liability Theories and Modern Products Liability Law, 74 Brook. L. Rev. 635 (2009), “[P]laintiffs now commonly supplement or even replace strict liability with claims that rely on fault-based liability theories. These theories are attractive because they allow plaintiffs to avoid the Restatement’s defect requirement and enable them to focus on a product seller’s behavior instead of the condition of its product.”


Many product liability actions are brought under common law theories of negligence. This theory is premised on the manufacturer’s duty of care in manufacturing or supplying products to consumers. This duty extends to all persons that might be, or are, reasonably foreseeable to make use of a product. As such, a manufacturer can be held liable for injuries caused by a consumer product, under negligence theory, even though such product is intended for use by a specific person or class of persons, but is ultimately used by another. Common product liability actions involving fault-based negligence theories involve negligent entrustment and negligent marketing. Additionally, claimants may also assert claims under the concept of negligence per se for violations of state and federal regulations.

Product liability actions may also arise due to manufacturers’ intentional actions, and are therefore brought under standard intentional tort law. Such cases may involve the manufacturer or supplier inducing a buyer to purchase, or offering for sale to a buyer, a consumer product known to be unreasonably dangerous when used for its intended or ordinary purpose, and such offer or inducement thereby results in injury to the buyer. Common product liability actions involving intentional torts include claims for misrepresentation, fraud, fraudulent concealment, fraudulent misrepresentation, and intentional infliction of emotional distress.

Whether a product liability claim is premised upon a fault based theories, or conventional strict liability theory, the litigants to such claims face a common barrier—proving or negating the absence or existence of supporting evidence. Accordingly, product liability actions almost always demand testimony provided from a consumer product expert. Some jurisdictions, pursuant to the laws of the particular state, mandate the presentation of expert testimony in certain product liability actions. Therefore, it may be wise practice to seek consultation with a product expert, specialized in the particular type of consumer product giving rise to the cause of action, during initial stages, rather than to be in a position of fumbling to find evidence which will serve to support valid claims, or rebut seemingly invalid claims.

By: Alicia McKnight, J.D.