Assumption of Risk and Product Liability

Today I taught assumption of risk in Torts and was struck for the first time by a parallel between that doctrine and product liability law. Perhaps others have already noticed the point that I’m about to make, but if so I was unaware of the connection.

In most assumption-of-risk cases, we are asking if a defendant should be found negligent in a circumstance where an activity undertaken by the plaintiff contains an element of danger that is exhilarating.  For example, somebody who falls on an ice rink cannot successfully claim that the rink was negligently maintained because it was slippery.  Why?  Because ice skating would not be enjoyable if it was too safe. A similar rationale applies to many other recreational activities that involve risks that are thrilling.

What are the exceptions to this idea?  One would be if the defendant operated the activity in a way that increased the normal risk of harm in a substantial and unanticipated way.  A rink with thin ice that people fall through, for instance, is not a risk that a skater would reasonably anticipate. Another is that a leisure activity could simply be too hazardous. Society may conclude that certain sports (e.g. boxing) should be banned no matter how well they are run or how many people want to play. Finally, there might be situations in which the defendant did not adequately warn a plaintiff of the conventional risks of the activity.

These three limits to the assumption of risk are nearly identical to the three types of product liability defect.  A manufacturing defect involves a product that does not perform as expected and causes harm. A design defect involves a product that works perfectly well but is judged to be too dangerous. And a warning defect involves an insufficient description of a product’s risk.

I’m not sure what to make of this analogy, but perhaps one body of law can shed light on the other.

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3 Responses

  1. A.J. Sutter says:

    Interesting, but the design defect seems to be a weaker link in the analogy, in a couple of respects. First, whose expectations are you talking about? Being manufactured as the designer intended isn’t the same as “working perfectly well”. A product might be manufactured according to the designed spec, but its performance not be what the purchaser was entitled to expect. Second, assumption of risk about, say, boxing doesn’t involve imperfect/asymmetrical information, whereas a design defect case often does. (Maybe both these points boil down to the same thing.)

  2. The parallels are far more profound. Duty of care, standard of care and foreseeable risk are, first and foremost, a state of mind. As a 40+ year quality control engineer who has worked with over 600 companies, I have observed that the corporate cultures of most manufacturing and service companies regarding potential liability fall into three categories: Naivety, abdication and acceptable kill rate. Most business executives are unaware of their potential for risk because they are emotionally involved in the products or services and do not see the growth of the tumor. Many more abdicate their duty of care in the heat of the competitive battles. A few actually build an acceptable kill rate into their product offerings.
    Overcoming personal and corporate abandonment of accountability must be addressed before we can have meaningful dialogue about assumption of risk.

  3. A.J. Sutter says:

    No doubt Tom is right about the typology of corporate attitudes, though in a way it seems orthogonal to — or a Möbius twist of — Gerard’s analogy.

    In Gerard’s usage, “assumption of risk” is a term of art referring to purposeful, reckless or negligent actions by the injured plaintiff, and the product liability analogy is to show how plaintiff might win his case anyway, including in situations not involving product liability per se.

    OTOH Tom’s typology refers to purposeful (“acceptable kill rate”), reckless (abdication) or negligent (naive) actions by the defendant that lead to the plaintiff’s win in a product liability case. In a non-technical usage of the term, they’re corporate behaviors that amount to a company’s “assuming the risk” of getting nailed. (Is this a fair summary, Tom?)

    I think Tom’s analogy is easy to understand in a practical way; Gerard’s more technical one is still kind of opaque to me.