“Danger is My Business”: The Right to Manufacture Unsafe Products

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While no one would dispute that safety is a desirable objective, it may not always be an absolute priority. Rather, in some cases, other societal interests such as personal autonomy, consumer choice, product cost, and performance may trump legitimate safety goals. This is reflected in some of the doctrines and defenses that have evolved to protect the producers of unsafe products against tort liability. Some of these doctrines, such as those determining liability for the producers of optional safety equipment, inherently dangerous products, products with obvious hazards, and prescription drugs and medical devices, are part of the law of products liability. Other doctrines, such as the regulatory compliance defense and the contract specification defense, are aspects of the broader law of torts. Finally, a few of these doctrines, such as federal preemption and the government contractor defense, are rooted in principles of federal supremacy.

Part II of this article begins with an examination of the relationship between defectiveness and safety. It observes that liability is based on the sale of a “defective” product rather than on the sale of an unsafe one. In other words, the fact that a product is not particularly safe does not necessarily mean that it is defective.

Part III identifies a number of doctrines and defenses that potentially shield manufacturers of unsafe products from liability. These include federal preemption, the regulatory compliance defense, the contract specification defense, and the government contractor defense. Part III also observes that current products liability law often allows manufacturers to offer safety equipment on an optional basis, thereby enabling consumers to purchase products that may not be optimally safe. Likewise, manufacturers of inherently dangerous products, such as cigarettes, alcoholic beverages, and fast food, are generally immune from liability as long as they warn about product risks that might not be matters of common knowledge. Furthermore, under the obvious hazard rule, the duty to warn does not extend to hazards that should be known to the average consumer. In addition, the Products Liability Restatement, along with most courts, has declined to impose strict liability on the sellers of used products. Finally, certain potentially dangerous products, such as prescription drugs, vaccines, and medical devices, receive special treatment in products liability law because of their high social value.

Part IV examines a number of societal interests that may sometimes prevail over safety goals. Personal autonomy and consumer choice are two closely related interests. The principle of personal autonomy respects the right of individuals to engage in risky activities and to purchase dangerous products. In addition, public policy supports the proposition that consumers should have access to a wide range of options when they purchase products, including ones that are cheaper, but less safe. Product cost and performance are also important considerations that must be balanced against product safety. Additional safety features often increase product cost and, consequently, may price some consumers out of the market. In addition, as anyone who has struggled with child-proof caps knows, safety features sometimes adversely affect convenience and product performance. Safety must sometimes be compromised in order to protect governmental interests such as military procurement or agency decision-making. Finally, sub-optimal safety is sometimes tolerated in order to protect sellers from liability, as was the case when airbags were phased in gradually instead of being required all at once.

Original languageAmerican English
Pages (from-to)827-872
JournalArkansas Law Review
Issue number4
StatePublished - Dec 1 2014


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