| Defectiveness is the fundamental concept of U.S modern product liability law. Almost in all product liability litigation, the focus is whether there is a defect in charged product. This article gives a brief introduction on defectiveness theory in U.S product liability law, while comparing with China's product liability law. At the end of this article, the author puts forward his own opinion on defectiveness theory in China's product liability law.Defectiveness theory is a direct result of Strict Liability Theory. Under strict liability litigation, the producer will assume the compensation, if consumer can prove 1) there is a defect in charged product; 2) occurrences of certain damages; 3) the defect is the cause of damages, whether there is negligence on producer or not. So the battles between producer and consumer naturally should focus on defectiveness, which results in the enrichment and development of defectiveness theory.How safe is safe enough, there are three methods to test the defect of product: 1) consumer expectations test; 2) risk-benefit analysis; 3) Barker's two-prong test.Under consumer expectations test, if the safety of a product can not reach the reasonable expectation of a common consumer, or the danger of a product exceeds the reasonable expectation of a common consumer, this product is a defect product. The key point of consumer expectations test is what the reasonable expectations is in each product liability case.Risk-benefit analysis is based on cost-benefit analysis that is widely used in economics. According to risk-benefit analysis, every product may cause certain damages to society, which can be looked as the cost paid by society for using this product, but even the defect product would have certain benefit or utility, so the society must balance the cost and the benefit of using certain product. If the cost exceeds the benefit, the product will be defined as defect product, if the benefit exceeds the cost, the damages caused by the product will be accepted by the society, the producer will not be blamed.In certain circumstance, consumer expectation test is ineffective, for instance, in the " obvious defectiveness" case, if a defect that caused the damages is obvious to the consumer, the injured consumer can't claim the danger of defect product is beyond his expectation, so he can't get the compensation. In order to avoid such unfair results, the courts developed the Barker's two-prong test. Under Barker's two-prong test, there are two steps to test the defect: 1) if the safety of the product complies with the "reasonable expectation" of consumer, that is, the consumer expectation is the floor of product safety; 2) if the producer has taken all available methods to reduce the risk of the product without derogating the utility of product. Even if the defect of product is obvious, the producer has the obligation to eliminate the obvious defect, if the cost of re-design is very low comparing with the damage caused by the defect product.According to China's product liability law, there are two methods to test the defectiveness: unreasonable danger test and production criterion. Actually unreasonable danger test is the same with consumer expectation test, there is no material differences between two tests. Production criterion is made by the government or guild, which the producer must comply with while manufacturing his products. Under China's product liability law, the fact that the product did not accord with the production criterion may prove that the product is defective. It's still a disputing issue when the unreasonable danger test should apply and when the production criterion should apply.In U.S product liability law, the defectiveness of product can be classified into three groups: manufacturing defects, design defects and warning defects. Different test will apply to different defect. For instance in manufacturing defects case, the strict liability will apply, that is, the producer should be responsible for the damage caused by the defect... |
PDF Full Text Request