The Useful Life Defense: Embracing the Idea That All Products Eventually Grow Old and Die

• Publication year: 2021

80 Nebraska L. Rev. 1. The Useful Life Defense: Embracing the Idea That All Products Eventually Grow Old and Die

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The Useful Life Defense: Embracing the Idea That All Products Eventually Grow Old and Die

Charles E. Cantu(fn*)

TABLE OF CONTENTS

I. Introduction . . . . . . . . . . . . . . . . . . 1 R
II. Background . . . . . . . . . . . . . . . . . . . 4 R
III. Defenses in General . . . . . . . . . . . . . . . 6 R
IV. Useful Life Defense . . . . . . . . . . . . . . 11 R
V. Justification . . . . . . . . . . . . . . . . . 15 R
VI. Conclusion . . . . . . . . . . . . . . . . . . . 16 R

I. INTRODUCTION

The Restatement (Third) of Torts(fn1) is expected to continue the consumer- oriented trend that began with the recognition of strict products liability under section 402A.(fn2) Prior to the adoption of the Restatement (Second) in 1965,(fn3) the law required an injured plaintiff either to focus on the defendant's failure to conform to the standard of

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care as required by the law of negligence(fn4) or to comply with the Uniform Commercial Code's complicated law of warranty.(fn5)

In establishing a cause of action under the negligence standard, the doctrine of privity presented early problems.(fn6) Another obstacle to a plaintiff's recovery was establishing a defendant's responsibility for the alleged defect.(fn7) Additional concerns involved measures that would have detected the problem prior to placing a product into the stream of commerce.(fn8)

Similarly, the law of warranty did not facilitate a plaintiff's burden. (fn9) While both express and implied warranties were created at the time of sale,(fn10) a plaintiff's recovery could be limited, and in some cases denied completely.(fn11) These hurdles, combined with the costly expense

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of litigation,(fn12) often resulted in situations wherein an injured plaintiff was left with little or no recourse.(fn13)

Section 402A of the Restatement (Second) of Torts brought these inequities to an end.(fn14) The law of strict products liability as set forth by the American Law Institute produced a simple and straightforward approach that eliminated obstacles and eradicated many of the legal fictions previously invoked.(fn15) For the first time, an injured consumer could prevail simply by establishing that the product in question was defective.(fn16)

Once enacted, section 402A quickly became an integral part of American Jurisprudence.(fn17) It is credited with increasing the number of lawsuits in the area of consumer protection,(fn18) and many maintain that now the pendulum has swung to the opposite extreme.(fn19) Manufacturers are now held responsible not only for defective products causing injury, as contemplated by the Restatement,(fn20) but also goods that would not ordinarily be perceived as "products."(fn21) Some main-

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tain that products liability should now extend to injuries inflicted during the dismantling, destruction, and general recycling of products.(fn22) One might even argue that in thirty years the legal system has gone from strict products liability to unlimited liability.(fn23)

This phenomenon has resulted in cries of insurance crises as well as the need for tort reform.(fn24) The outburst has been so strident that, after almost four decades of developing products liability law, perhaps we should take a new look at these issues. The purpose of this article is to consider an idea that has previously received little attention: the premise that a manufacturer should not be held responsible for injuries once the useful life of its product has come to an end. We should explore the prospect that, like all things tangible, products eventually grow old and die,(fn25) and that once this process has taken place, a manufacturer should not be held responsible for resulting injuries.

II. BACKGROUND

From its inception, strict products liability law has looked to the manufacturer when allocating the cost of fault.(fn26) When so-called space age technology was first recognized as a boon to mankind and by-products of each new wave of advancement made life in the home and workplace easier, healthier, and more convenient, the law im

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-posed any resulting risk upon the manufacturer.(fn27) While these developments benefited society as a whole, those who introduced new products into the stream of commerce were responsible for the corresponding increase in the number of injuries and fatalities occurring on a daily basis.(fn28)

This allocation of risk was by no means unanimous.(fn29) One conflicting idea was that the injured plaintiff should bear part of the burden, and that safety, like charity, should begin in the home.(fn30) This approach reflected the prevalent belief that a family was responsible for the safety of its individual members, and that one had a duty to make one's abode and workplace safer.(fn31) However, a manufacturer's options in selecting what should have been the best materials, safest designs, and the most efficient means of assembly were presented in opposition to imposing responsibility upon an injured plaintiff.(fn32) Additional persuasive factors included a manufacturer's ability to issue

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adequate warnings and instructions,(fn33) secure insurance against loss,(fn34) and ultimately pass the cost of liability to all consumers.(fn35) While others in the stream of distribution were ultimately liable,(fn36) there was never any question that they could seek indemnification from the entity upon which responsibility should be placed-the manufacturer.(fn37)

III. DEFENSES IN GENERAL

Even in this climate of manufacturer liability there were defenses. (fn38) From the beginning, manufacturers could claim contribut

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-ing fault on the part of the plaintiff in the forms of contributory negligence or assumed risk,(fn39) misuse or abuse of the product,(fn40) or that the injured party had in some way encountered an obvious risk.(fn41) Based upon principles of equity and sound public policy, the plaintiff's conduct was always a factor to consider in determining whether and how much he should recover.(fn42) The idea of a defense with respect to the mere passage of time, however, was not always so apparent.(fn43)

The issue in cases dealing with the deterioration of products is of dual proportions. The first part inquires as to whether the product has endured the rigors of normal wear and tear.(fn44) If a product has endured normal use, its manufacturer is absolved of responsibility.(fn45)

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The second part explores the possibility that the manufacturer has introduced a product into the stream of commerce that is so fragile that he should have foreseen a risk of injury.(fn46) In these cases, courts have readily imposed liability based on the concept of a defective product.(fn47)

A third result has evolved in scenarios involving the disposal and destruction of a product once its useful life has come to an end.(fn48) In these cases, the courts have universally held, despite vigorous and logical arguments to the contrary, that when a product is dismantled or recycled, it is not being used in the manner intended.(fn49) This unintended use is therefore unforeseeable, and any resulting injury is not the responsibility of the manufacturer.(fn50)

The concept of "state of the art,"(fn51) however, is still evolving. This has real significance because of the difficulty in holding a manufac

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turer to a standard that is unknown or in some cases impossible to meet.(fn52) Still, some courts have imposed liability in this situation,(fn53) reasoning that strict products liability is not concerned with what the manufacturer knew or ought to have known, but with the condition of the product.(fn54) This dichotomy is further blurred by jurisdictional views which provide that state of the art is not a defensive issue, but a burden that a plaintiff must meet in order to establish that the manufacturer had feasible alternatives or reasonable expectations concerning defects.(fn55)

Intergenerational harms, on the other hand, present an interesting and totally unrelated problem.(fn56) There is no question that the medical arena has made tremendous technological advances.(fn57) Today a medical expert can convince a jury that certain substances are toxic,

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carcinogenic, and in some cases produce chromosomal changes that are manifested in generations not yet born.(fn58) When members of unborn generations come into existence bearing the effects of these harmful pharmaceuticals, the issue becomes whether to impose liability upon the manufacturer.(fn59)

Again, the jurisdictions are divided.(fn60) Some hold, as in situations involving proximate cause, that public policy limits the extent of a manufacturer's responsibility.(fn61) Some courts hold that liability should be extended only to those who ingested or were exposed to the harmful substance in utero,(fn62) while others, at the opposite extreme, impose liability more readily.(fn63) The reasoning of the latter is that strict products liability litigation focuses on the condition of the product, and if it is defective liability will necessarily follow.(fn64)

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Finally, statutory repose should be mentioned. Similar to the idea of a statute of limitations, this defense limits the time within which an injured plaintiff may bring his or her cause of action.(fn65) However, they differ on one important point: a statute of limitations runs from the time of injury, or in some cases when the injured party discovers or should have discovered the harm,(fn66) while a statute of repose begins to run when the product is manufactured or introduced into the stream of commerce.(fn67) The theory behind each is to ensure timely litigation. (fn68) More importantly, both of these defenses limit the time period during which manufacturers should be held accountable for the condition of their...