Imagine that you buy the latest gadget online. Like the new hoverboard motorized skateboard. Ten minutes into trying it out, it's battery seems to fail and your hoverboard stops suddenly.

You fall forward and break your arm. If you were very hurt would you be able to sue the hoverboard manufacturer? Or the company who sold it to you? How do you establish, who is to blame? Liability describes the state of being legally responsible for something. Especially when it causes harm. Product liability is the area of law in which consumers can bring claims against manufacturers and sellers for products that injure people.

Product liability makes up a large portion of the cases that end up in court. When you get hurt by a product you bought, two conditions need to be met, to prove whether the seller or manufacturer is liable for your injury. First whoever made or sold you the product must do it as a business. The seller can’t be someone making things from home or as a hobby. Second the expectation is that the product has not been changed before reaching you the consumer.

Every company’s responsibility for making sure its products are safe is different from an individual’s responsibility to behave safely. If you’re suing an individual, you need to prove in court that the defendant wasn’t being careful enough to keep people safe. Product liability is different, product liability is a form of strict liability, which means that there is no need to prove whether the manufacturer was being careful. The manufacturer is liable any time it is shown that their product is defective. To sue for product liability, you only need to show one of three things to hold the manufacturer liable.

You need to show that either they built the product badly and it’s a manufacturing defect, they designed the product badly a design defect or they didn’t warn you about a risk or danger associated with the product. Failure to warn. Let’s look more closely at these three reasons for product liability. The first reason for liability is a manufacturing defect if a particular product you bought was different from all the others in a way that makes it dangerous it has a manufacturing defect. Let’s say you buy a hoverboard, but the one you bought unlike all the others does not have its wheels attached correctly and the wheels fly off as you’re using it.

You can hold them liable for your injuries because the manufacturing defect can be shown. The second reason for liability is a design defect. When a product is not safe as it should have been. Designed defects exist before the product is even manufactured, a flaw in the design makes it unsafe to use. Imagine if the wheel fell off your hoverboard because they only use rubber bands instead of bolts. The product was built correctly but the correct design wasn’t safe. This manufacturer would be liable for a design defect. In these design defect cases the court often compares competing manufacturers versions of a product, because that’s how they see if a flawed design could have been improved in a cost-effective way.

Some kinds of danger cannot be designed out of a product. Swimming pools will always create a drowning risk and combustion engines will always produce toxic exhaust. The third form of product liability arises when there is potential danger involved with using a product, and the customer wasn’t warned about how to avoid harm. We call this third defect, a failure to warn. If you are making or selling a product like this, you can be sued for failing to warn people about the risk of danger. Imagine you’re riding your hoverboard doing cool tricks, of course you will be wearing a helmet. If you look inside that helmet it’ll let you know what kinds of activities that the helmet is not able to protect you from.

This warning exists because it’s not clear how strong the helmet is just by looking at it, and if you use a bicycle helmet for football practice motorcycling or skydiving you’ll be unprotected. If a product doesn’t provide the user with enough information to know the risks of their product and how to avoid those risks, the manufacturer can be liable for a warning defect in their product. Manufacturers and sellers are not always liable for injury caused by their products. If you use a product in an unforeseeable way, like trying to use your car’s as a pontoon boat. They can’t be held liable for injuries that result.

If you were to change a product after you buy it, like replacing the tires on your car with skis, same thing goes. Another important thing to keep in mind is that product liability is about injury that results from physical products. There is no liability that results when your video game freezes and you lose your high score. Understanding the principles of product liability gives us the tools to disentangle more complex liability questions presented by emerging technology.

Let’s consider product liability with respect to driverless cars. Imagine that a mass-market driverless car becomes available and you buy one. For most people the car works well without any issues, but yours is different and glitchy. One day the car is supposed to take you from home to work, instead it drives you off the road and into the lake. In this case you could sue for product liability under the theory of manufacturing defect. But instead what if every model of the car drove off the cliff? Because the code told all of them to do so. That’s a design defect.

When you think about in this way, the way that product liability law is already written, it is robust enough to deal with many of the challenges presented by emerging technology. That’s not to say that driverless cars do not present any tricky liability issues, if you modify a car by installing driverless car hardware, who is liable in the event of an injury? The car manufacturer or the modifier?

Rewriting all the codes seems to be the same as replacing the wheels with pontoons, but what if you just install a simple app that accidentally causes the car to stop working entirely? Is it the car makers fault? The app maker? Or you, for putting the pieces together to make the useless machine. Or what if you have a car in which a human is supposed to take over whenever the autonomous system senses dangerous conditions? Imagine the car signals the driver to resume control but then there in an accident as the driver scrambles to take the wheel. Who is liable in this case? The driver or the autonomous system designer? Driverless cars are often said to present inscrutable problems for product liability law.

On the contrary the same issues become more approachable when we ask the right questions. By digging into the details of what caused harm and how, product liability law gives straightforward ways to establish who is liable for injury.

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