Meier on Products and Vicarious Liability

Luke Meier has posted to SSRN Vicarious Product Liability.  The abstract provides:

Discussions regarding the strict product liability cause of action have frequently-and unfortunately-conflated two separate questions: (1) Must a plaintiff show that somebody was at fault for her injury? (2) If so, must a plaintiff show that the defendant was at fault for her injury? When the strict product liability cause of action burst into existence approximately sixty years ago, its proponents assumed that the answer to Question 1 was “no.” As the name implied, the new cause of action would (strictly) impose liability without fault. It naturally followed that retailers (and even distributors) could be liable to plaintiffs injured by products, even if the retailer (or distributor) was in no sense responsible for the product condition that resulted in injury to the plaintiff. The “no” answer to Question 1 dictated a “no” answer to Question 2. Over the next two decades, however, courts settled on a different conclusion regarding Question 1: Under modern law, plaintiffs must demonstrate that a product is “defective” in order to recover on a strict product liability claim, and this will usually require a plaintiff to demonstrate that the product was a result of somebody’s (usually the manufacturer’s) fault. Thus, the strict product liability cause of action no longer permits the plaintiff to recover without showing fault. Given that an injured plaintiff must now show fault to recover in a suit against a manufacturer, there is presently an ongoing reconsideration of the liability of “innocent” distributors and retailers for the fault of a manufacturer. Many states are now limiting (by statute or common law) the liability of distributors and retailers for a strict product liability claim. And there is a tempting logic to this progression: Having concluded that a plaintiff must show that somebody was at fault for the product condition that injured the plaintiff, it seems rational to require the plaintiff to demonstrate that the defendant-from whom recovery is sought-is at fault. A “yes” answer to Question 1 seems to imply a “yes” answer to Question 2. Lost in this progression, however, is a different perspective. Under vicarious liability doctrine, a defendant can be liable for the torts committed by others (such as when an employer is liable for the torts committed by employees). This result is supported by various policy justifications, which apply with full force to “innocent” retailers (and, to some extent, distributors) who sell products that are defective because of the fault of another party (usually a manufacturer). Thus, the legal liability of non-manufacturing defendants for defective products should be reconceptualized as simply an application of vicarious liability principles. That is the goal of this Article.