Damages for pain and suffering and emotional distress in products liability cases involving strict liability and negligence.

• Author: Hunter, Richard J., Jr.

1. INTRODUCTION: THE CONTEXT

   Two of the important theories used to establish liability in modern products liability cases are negligence and strict liability. Compensatory damages are generally awarded in products liability cases based on a negligence theory in order to reimburse a plaintiff for losses (damages) caused as a result of the conduct of a defendant. (1) Cases involving strict liability focus on defects existing in a product rather than on the conduct of a particular defendant. (2)

   Negligence: Elements of Proof

   Numerous sections of the Restatement (Second) of Torts deal with the liability of persons who supply goods based on a theory of negligence. (3) Generally, these sections provide that the supplier is liable for the "physical harm" caused by the product. Official comments to these sections indicate that "physical harm" includes both bodily harm and property damage.

   The most widely used definition of negligence provides that "[n]egligence is the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do." (4) When a negligence action arises in products liability, the plaintiff must focus on the conduct of the manufacturer or seller; thus, the plaintiff must prove that the defective product was caused by the negligent conduct of the manufacturer or seller. (5)

   In products liability cases, the plaintiff is generally required to establish four elements. First, the plaintiff must establish that the manufacturer or the seller owed a duty of reasonable care in the design, manufacture, or sale of the product. (6) Second, the plaintiff must prove that the defendant seller or the defendant manufacturer breached that duty by failing to exercise the standard of care of a "reasonable person" under the circumstances of the case. (7) Third, the plaintiff must prove that the plaintiff suffered personal injury or damage to his or her property. (8) Fourth, the plaintiff must prove that the breach of duty was both the cause-in-fact and the proximate cause of his or her injury or damages. (9) Most courts have defined cause-in-fact by the "but for" or "sine qua non" test, (10) requiring the plaintiff to prove that his or her injury would not have occurred if the product defect had not existed. (11) However, the proof-of-negligence requirements have been significantly moderated in some cases by the development of the concepts of negligence per se (12) and res ipsa loquitur (13)--but only under very limited circumstances.

   Strict Liability

   Strict liability in tort is an alternative to finding liability through negligence. The imposition of strict liability in tort has been justified on numerous policy grounds. Justice Traynor listed several rationales for imposing absolute liability (an earlier iteration of the theory) in his concurring opinion in Escola v. Coca Cola Bottling Co., (14) a case that was the clear precursor to the creation of the theory of strict liability in tort. These rationales, among others, include (1) providing an incentive for manufacturers to produce safer products and to minimize the losses to society from those products; (15) (2) recognizing that the manufacturer is in a better position than the consumer to absorb or pass on the costs from injuries that result from defective products; (16) (3) eliminating the problems of proof that confront plaintiffs in negligence actions, which often involve assertions of contributory negligence by the manufacturer in order to defeat a plaintiff's claim. (17) As a general proposition, Justice Traynor noted, "An injured person ... is not ordinarily in a position to refute [a showing of proper care] or identify the cause of the defect, for he can hardly be familiar with the manufacturing process as the manufacturer himself is." (18)

   Indeed, it took almost twenty years for the California Supreme Court to adopt the views of Justice Traynor concerning the imposition of strict liability. Justice Traynor wrote for the court in 1963 in the seminal case of Greenman v. Yuba Power Products, Inc. (19) The framework for the adoption of strict liability in tort as a preferred theory in products liability cases was established when the American Law Institute adopted section 402A of the Restatement (Second) of Torts in 1965. That section was later revised in 1997 with the adoption of the Restatement (Third) of Torts: Products Liability. The purpose of the regime established in Section 402A is to permit the injured party to recover without the requirement of proving negligence by a defendant.

   Under a strict liability rationale, the imposition of liability depends on three conditions. First, the plaintiff must prove that the product was in a "defective condition unreasonably dangerous to the user or consumer or to his property." (20) Second, the seller of the product must have been "engaged in the business of selling such a product." (21) Third, the product must have been expected to and did reach the user or consumer "without substantial change in the condition in which it [was] sold." (22) As the Supreme Court of New Jersey noted in Feldman v. Lederle Laboratories, "[t]he emphasis of the strict liability doctrine is upon the safety of the product, rather than the reasonableness of the manufacturer's conduct. It is a product-oriented approach to responsibility." (23)

   In differentiating between a products case based on strict liability and one based on negligence, the Feldman court noted:

   Generally speaking, the doctrine of strict liability assumes that enterprises should be responsible for damages to consumers resulting from defective products regardless of fault. The doctrine differs from a negligence theory, which centers on the defendant's conduct and seeks to determine whether the defendant acted as a reasonably prudent person. This difference between strict liability and negligence is commonly expressed by stating that in a strict liability analysis, the defendant is assumed to know of the dangerous propensity of the product, whereas in a negligence case, the plaintiff must prove that the defendant knew or should have known of the danger ... This distinction is particularly pertinent in a manufacturing defect context. (24) Comment c to Section 402A sets forth the statutory policy perspectives for the imposition of strict liability. The perspectives include recognizing that:

   "the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products." (25)

   Justice Traynor may have said it best when he noted, "The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves." (26)

   In an action based on strict liability in tort, (27) a seller is liable for the "physical harm ... caused to the ultimate user or consumer, or to his property." (28) Section one of the Restatement (Third) reaffirms this basic construct, noting that "[o]ne engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect." (29) While comments to neither the Restatement (Second) nor the Restatement (Third) categorically define the precise nature of defects, such defects are generally classified under three broad headings: (1) manufacturing defects, (30) (2) design defects, (31) and (3) inadequate instructions or warnings concerning the use or risks of a product--sometimes referred to as "marketing" defects. (32) Professors Fisher and Powers note, however, "[t]here is no single rule that applies in all cases. Jurisdictions vary widely as to the approach used. (33) Furthermore, even within a given jurisdiction, the approach used often varies over time. (34) Some jurisdictions even apply different tests to different types of defects." (35) Most courts, however, agree that the product must be evaluated in light of the technology available at the time it was made or distributed. (36)

2. COMPENSATORY DAMAGES

   Courts have divided compensatory damages into two categories: general and special damages. (37) Special damages are also called economic damages. Special damages include economic losses that are a direct result of the injury caused by the defendant. Generally, special or economic damages include medical expenses, lost earnings or wages (both present and future), and the cost of repair to property or the value of replacement of property that has either been damaged or destroyed. (38) These damages are quantifiable-thus the plaintiff is required to both "plead and prove" a specific amount in order to recover special damages.

   On the other hand, general damages are difficult to calculate with specificity in terms of money. As noted by Professors Kiely and Ottley, "[t]hese include disfigurement, disability, pain and suffering, and emotional distress." (39) Since it is often difficult, and practically impossible in any objective sense, to calculate with specificity these types of damages, the plaintiff is not required to plead or prove a specific amount in order to recover such damages.

   Professors Kiely and...