Analyzing inconsistent verdicts in products liability cases: how the law promotes them, why juries render them, and why some courts permit them.

• Author: Blydenburgh, Donald P.

PRODUCTS LIABILITY, which has its origins in both tort and contract law, typically covers any liability of a manufacturer or a seller of a product where that product's defect results in personal injury or property damage. The plaintiff can make such a claim under a number of different theories of liability. At one time, the most common ground for recovery was negligence, requiring the plaintiff to affirmatively show that the defendant-distributor deviated from accepted standards of conduct in its actions or failure to act. In 1944, Judge Traynor explained the evidentiary difficulty in proving negligence, when he opined, "[a]n injured person, however, is not ordinarily in a position to refute such evidence or identify the cause of the defect, for he can hardly be familiar with the manufacturing process as the manufacturer himself." (1) To avoid this substantial burden, plaintiffs relied on an implied warranty of merchantability, which, according to the Uniform Sales Act and later ruder the Uniform Commercial Code, guaranteed the consumer a product that was "reasonably fit for the ordinary purposes for which such goods are used." (2) This cause of action, requiring defect but no proof of fault, had many of the virtues of strict liability. However, a cause of action based on implied warranty posed its own substantial hurdles. Because the action was contractual, it required privity (3) and, based in sales law, it required proper notice of the breach. Additionally, its statute of limitations ran from the sale rather than the injury. Public policy considerations laid the groundwork for plaintiffs to recover on a third ground: strict liability in tort. One who sells any product "in a defective condition unreasonably dangerous to the user or consumer or to his property" is strictly liable for harm caused to the ultimate consumer or user. (4)

Although these theories are not mutually exclusive, many plaintiffs allege alternative theories of liability, a contingency plan of sorts should they fail to provide sufficient evidence on an element of one theory. Although courts allow plaintiffs to allege multiple theories, a plaintiff must, irrespective of the theory, prove that the product is defective. (5) If a jury returns one finding for the plaintiff while returning another for the defendant, with both theories requiring a showing of defect, the verdict could be considered irreconcilable and fatally inconsistent.

Inconsistent verdicts are a double-edged sword in that, if a jury, because of confusion in the law, returns an inconsistent verdict, the decision of the historical arbiter of fact is rejected and the case must be retried. (6) On the other hand, harmonizing an inconsistent verdict under an "any possibility of reconciliation under any possible application of the evidence and instructions" standard (7) muddles legal precedent and affects future product litigation.

Some scholars have advocated for the use of special interrogatories or special verdicts to deal with the potential hazard posed by alleging alternative theories of liability. Although helpful, this "remedy" would only temporarily address the problem in the short-run and may not be sufficient to remedy the larger, long-term problem. If courts continue to resolve inconsistent verdicts in products liability cases by theorizing a possible reasoning they believe the jury may have had in returning such a verdict, a workable definition of "defect" will prove elusive. The larger problem must be addressed: section 402A of the Restatement (Second) and its amorphous "defective condition unreasonably dangerous," put a "substantive gloss" on the term "defect." (8) Courts have since incorporated their own complicated and, at times, misguided interpretations of the term, sending jurors to deliberate with nearly incomprehensible instructions, leaving them to formulate random, unpredictable, and sometimes irreconcilable judgments.

Charging juries with alternative theories of recovery in products liability cases invites the potential for inconsistent verdicts because each theory requires a showing of defect, and courts have not provided juries with a clear, consistent definition of defect. Courts need to clear up the confusion surrounding defect and the resulting potential for inconsistent verdicts. One possible solution is to adopt the Restatement (Third) of Torts: Products Liability, whose approach to defect is twofold: (1) negligence and strict liability labels are discarded and liability is defined as the presence of a defect; and (2) defect is defined according to the test for such a defect, depending upon whether the alleged defect concerns the product's manufacture, design, or its instructions or warnings. Such an approach provides clarity to jurors and affords litigants a consistently fair and just result.

Some courts will not sever their allegiance to the consumer expectations test, and instead will continue to employ a twin-test approach to design defect litigation, resting liability either on a product's failure under the risk-utility test or its disappointment of firmly established consumer safety expectations. Even with such a test, courts must still ensure that juries are not analyzing the same question under the guise of different labels. For example, juries must initially be directed to determine if the product is defective before finding the manufacturer to be negligent in the manufacture of the product.

1. Negligence, Warranty, and the Doctrine of Strict Products Liability

   Judge Cardozo defined the nature and extent of the duty owed by a manufacturer and developed a philosophical viewpoint from which products liability law would manifest itself:

   If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully ... There must be knowledge of a danger, not merely possible, but probably. It is possible to use almost anything in a way that will make it dangerous if defective ... We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law. (9) MacPherson removed the barrier of privity in a negligence action. "Judge Cardozo affirmed the overriding societal imperative that manufacturers be held to owe a duty of due care directly to users of their products." (10)

   But how do we determine when a duty of care has been breached? Judge Learned Hand articulated the classic formulation. Although some judges prefer to define negligence in terms of "what a reasonable person would have done," Judge Hand expressed the applicable variables of the standard (11) into a formula in which an actor is negligent if the burden of precaution to avoid the risk of loss (B) is less than the probability (P) of an injury occurring (L). He created a formula: B > PL. To apply Hand's formula, one must weigh the costs of activities against the benefits in deciding upon a course of action. Negligence, despite the absence of privity and a seemingly straightforward standard, provided an injured plaintiff with a considerable evidentiary problem: Proving a manufacturer negligent required information that the defendant was in a better position to know.

   As a result, American courts increasingly relied on the doctrine of res ipsa loquitor to ease the burden on plaintiffs suing under a negligence theory. (12) In the landmark decision of Escola v. Coca-Cola Bottling Company, the plaintiff alleged that the defendant company was negligent in selling bottles that were dangerous and exploded. Although it was virtually impossible for the plaintiff to prove at what point the bottle became defective, (was it the manufacturer of the bottle or the pressurization of the bottle) plaintiff relied on res ipsa to convince the court that accidents like the explosion are ordinarily the result of negligence and more likely than not resulted from such negligence. The California Supreme Court found that, because the manufacturer's testing procedures (for 1 out of 600 bottles) were "infallible," negligence rested in the hands of the seller, Coca-Cola.

   In his concurrence, Judge Traynor asserted that while negligence was not proven, it was unnecessary to prove. Traynor argued that "public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards of life and health inherent in defective products that reach the market," and, the responsibility for a defective product should be fixed on the manufacturer who enters that product into the stream of commerce. His analysis was the first argument for strict liability.

   Plaintiffs further attempted to avoid the burden associated with a negligence action by seeking recovery under an implied warranty of merchantability, a warranty that the product was reasonably fit for the ordinary purposes for which such a good was used. Being essentially "strict liability in contract," it allowed a plaintiff to prove defect without fault; however, it required privity between the parties in suit, proper notice of the breach, and its statute of limitations ran from the time of sale rather than the injury. That burden was lightened when, in Henningsen v. Bloomfield, the New Jersey Supreme Court "dispensed with the privity requirement in an action based on breach of implied warranty, holding that the obligation of the manufacturer is not grounded in the law of sales, but upon the 'demands of social justice.'" (13)

   "Public policy goals undergirding the societal...