Product Liability Defenses and Government Agencies to Protect Us

By Elaine M. Deering, J.D.

Product Liability DefensesProduct misuseProduct misuse::

– When plaintiff uses the product in some unusual, When plaintiff uses the product in some unusual, unforeseeable way, and this causes the loss for which unforeseeable way, and this causes the loss for which he/she sues.he/she sues.

– E.g., ignoring the manufacturer’s instructions, mishandling E.g., ignoring the manufacturer’s instructions, mishandling the product, and using the product for purposes for which it the product, and using the product for purposes for which it was not intended.was not intended.

Assumption of RiskAssumption of riskAssumption of risk::

– Plaintiff’s voluntary consent to a known Plaintiff’s voluntary consent to a known danger, e.g., consuming obviously danger, e.g., consuming obviously adulterated food.adulterated food.

– Used as a defense in warranty, negligence, Used as a defense in warranty, negligence, and strict liability casesand strict liability cases..

Contributory Negligence

Contributory negligenceContributory negligence::

– Plaintiff’s failure to exercise reasonable care for Plaintiff’s failure to exercise reasonable care for his/her own safety.his/her own safety.

– Where it still applies, it is a complete defense for Where it still applies, it is a complete defense for the defendant if it was a substantial factor in the defendant if it was a substantial factor in producing plaintiff’s injury.producing plaintiff’s injury.

Source: Source: Donald R. Simon, Esq.Donald R. Simon, Esq. Adjunct FacultyAdjunct Faculty

Kansas City, Kansas Community College - Leavenworth Kansas City, Kansas Community College - Leavenworth CenterCenter

PART II: Government Agencies Protecting Us from Dangerous Products

Several agencies have been established to protect the public from dangers in the home, in the environment, and in the workplace

These will be presented in alphabetical order.

Who Am I?This agency is charged with protecting the public from unreasonable risks of

serious injury or death from thousands of types of consumer products under its jurisdiction.

It directs its attention to products that pose a risk of fire, electrical, chemical, or mechanical hazard or injury to children.

This agency’s work has contributed significantly to the 30 percent decline in the rate of deaths and injuries associated with consumer products over the past 30 years.

Consumer Product Safety Commission

CPSC can set standards, ban a product, order recalls of unsafe products, or institute labeling requirements.

Consumers can report incidents involving unsafe products

Does not regulate cars, medicines, food, tobacco, firearms, etc. Source: http://www.cpsc.gov/about/about.html

Who Am I?

My mission is to protect human health and to safeguard the natural environment — air, water, and land — upon which life depends. For 30 years, this agency has been working for a cleaner, healthier environment for the American people.

ENVIRONMENTAL PROTECTION AGENCY

Seven Priorities for EPA’s Future:

Taking Action on Climate Change

Improving Air Quality

Assuring the Safety of Chemicals

Cleaning Up Our Communities

Protecting America’s Waters

Expanding the Conversation on Environmentalism and

Working for Environmental Justice

Building Strong State and Tribal Partnerships

How Does the EPA Affect Manufacturers of Hazardous Substances?

Assuring the Safety of Chemicals

• One of the EPA’s highest priorities is to assure the safety of chemicals in our products, our environment and our bodies.

• Toxic Substances Control Act is to be updated to address high-concern chemicals and fill data gaps on widely produced chemicals in commerce.

• In 2009, we released chemical management plans for four groups of substances, and more are in the pipeline for 2010.

• Using our streamlined Integrated Risk Information System, we will conduct rigorous, peer-reviewed health assessments on dioxins, arsenic, formaldehyde, TCE and other substances of concern.

Lisa P. Jackson, Administrator Source: http://blog.epa.gov/administrator/2010/01/12/seven-priorities-for-epas-future/

Who Am I?

This agency has jurisdiction over the safety of food, drugs, medical devices, blood, biological products, animal and veterinary products, cosmetics, tobacco, and radiation-emitting products

FOOD AND DRUG ADMINISTRATION

Its mission is to promote and protect the public health. It establishes safety standards and requires extensive testing of medical products to assure that they are safe and effective for their intended use (but not 100% safe and effective). Its jurisdiction does not extend to

dietary or herbal supplements.

Who Am I?This agency, also called “the nation’s consumer protection agency,”

administers many labelling and truth in advertising requirements to inform consumers about products they purchase.

It also administers a wide variety of other consumer protection laws, including the Telemarketing Sales Rule, the Pay-Per-Call Rule and the Equal Credit Opportunity Act, and regulates anti-competitive business pracrices.

Energy Label for Appliances

Source: http://www.ftc.gov/bcp/edu/pubs/consumer/homes/rea14.shtm

The Federal Trade CommissionThis agency, created in 1914, shares its expertise on consumer matters with

federal, state, and international government agencies; develops policy and research tools through hearings, workshops, and conferences; and creates educational programs for consumers and businesses in a global marketplace with constantly changing technologies.

Source: http://www.ftc.gov/ftc/about.shtm

Who Am I?This agency, called the “nation's medical research agency,” is a part of the

U.S. Department of Health and Human Services, and is the primary federal agency for conducting medical research throughout the world. Helping to lead the way toward important medical discoveries that improve people's health and save lives, this agency’s scientists investigate ways to prevent disease as well as search for the causes, treatments, and cures for common and rare diseases.

The National Institutes of HealthMedical Discoveries• The National Institutes of Health is at the forefront of new progress in medical

research: • In response to the anthrax attacks of 2001, the NIH launched and expanded

research to prevent, detect, diagnose, and treat diseases caused by potential bioterrorism agents.

• Researchers aggressively pursue ways to make effective vaccines for deadly diseases like HIV/AIDS, tuberculosis, malaria, and potential agents of bioterrorism.

• It is conducting research into new ways to treat and cure cancer, diabetes, arthritis, asthma and allergies, as well as epidemics of diseases such as Severe Acute Respiratory Syndrome (SARS).

Source: http://www.nih.gov/about/NIHoverview.html

Who Am I?

A division of the Department of Labor, this agency’s mission is “to assure safe and healthful working conditions for working men and women.” It develops and enforces standards for safe and healthful working conditions and provides research, information, education, and training in the field of occupational safety and health.

Occupational Safety and Health Administration

The Occupational Safety and Health Act (OSHA) was enacted in 1970 to address the uneven patchwork of state laws regarding workplace safety, and to respond to the growing number of serious injuries and deaths occurring in the workplace.

OSHA uses its resources primarily to conduct workplace inspections. It encourages employee participation in voluntary workplace safety programs.

Source: http://www.osha.gov/oshinfo/mission.html

Is it the government’s job to guarantee safety from dangerous

products?