Liability for Manufacturers in Washington: When Is Strict Liability Appropriate
Document Type
Article
Publication Title
Gonzaga Law Review
Abstract
Product liability law has been a subject of intense debate and substantial legislative attention in the last two decades. Many states have proposed or passed product liability reform statutes; President Bush has announced that he will propose product liability reform legislation. As Victor Schwartz's article demonstrates, the continued viability of strict liability is one of the major issues addressed in product liability reform proposals. Schwartz distinguishes between strict liability and what he calls "super strict liability"; he then suggests the abandonment of "super strict liability," and a return to common sense, a trend he finds already evident in the court decisions and legislation of many jurisdictions. Alas, Washington is not among them. The Washington Supreme Court's interpretation of the Tort Reform Act of 1981, by continuing to apply strict liability to design and warning cases, appears to be in retrograde motion relative both to Schwartz's vision of common sense, and to the ideals articulated in the Tort Reform Act of "balance" in product liability cases." Nonetheless, it is easy to exaggerate the significance of the strict liability standard, which differs from negligence largely in the use of "hindsight"- knowledge about the product acquired since the time the product was marketed. This article suggests that sound public policy should continue to use the negligence standard as the primary benchmark of tort liability, but that hindsight can fairly be used when the product presents a risk unknown to the manufacturer-so long as that risk was also unknown to the consumer. To develop this thesis, this article first traces the history of the development of strict liability prior to the adoption of the Washington Product Liability Act. Next, the statute itself is analyzed, revealing the legislature's apparent confusion about whether it wanted to include "hindsight" in the evaluation of design defect and warning cases. Then the focus shifts to an analysis of why negligence usually provides the best balance between consumer safety and efficiency but is neither fair nor efficient when dealing with risks unknown to the consumer-even if those risks were also unknown to the manufacturer. This article then recommends the use of the negligence test in all product design and warning cases, so long as the risks associated with the product were known to the manufacturer. However, where a risk was unknown to the manufacturer-and thus presumably unknown to the consumer as well-the jury should be instructed to impose liability on the manufacturer if a reasonable manufacturer would not have sold the product knowing of the additional risk.
First Page
217
Last Page
249
Publication Date
1991
Recommended Citation
David K. DeWolf & Keller W. Allen, Liability for Manufacturers in Washington: When Is Strict Liability Appropriate, 27 GONZ. L. REV. 217 (1991-1992).