Product Liability

This week’s question concerns liability and moral responsibility in consumer products. As the question is multi-part, the answer will be likewise. To begin, the first question addresses who should be liable for the voluntary actions of others. Specifically, if substantial information concerning the hazards of a product or service has been offered to the consumer, who is to blame if someone is injured? Similar to most questions derived from this course, the answer is “it depends.”
From a legal standpoint, the contract or arrangement must first be analyzed. If, for example, the activity is a high risk activity such as sky diving or feeding sharks on a scuba dive, then the legal concept of “duty of care” obviously plays a major role. Without sufficient training, education, and discussion of the inherent risks, potential problems, and possible results of mishaps, the seller is not fulfilling his or her duty warn the buyer of known risks or hazards. In this case, the seller would be legally required to warn the buyer that a failure to exercise reasonable care poses an unreasonable risk of harm (McCarty, 279). If the buyer has been properly apprised of the level of care necessary to avoid unreasonable risk, the buyer then assumes the risk, and subsequent liability, should tragedy occur. This is due to the “Assumption of Risk” liability defense that states that if the plaintiff knew, or should have known, of the risk inherent in a particular situation and voluntarily assumes that risk, then the defendant is not liable for the plaintiff’s injury even if the defendant was negligent. In this case, if the sky diving company requires 4 hours of classroom training before the first jump to thoroughly cover the risks of the activity and the prospective jumper voluntarily assumes the risks, then the skydiving company can not be held liable if the jumper breaks his leg on touchdown because he could not hear when the instructor calls for the flare upon touchdown.
In an ethical light, this arrangement of reasonable liability division is in keeping with our understanding of moral rights in the economic sense. According to the negative right of freedom of consent, all parties should be free to make any arrangement to which both parties agree. It is a moral imperative in this free consenting agreement or contract that both parties fully disclose all pertinent aspects of the arrangement, in this case, the disclosing of the inherent risks involved with jumping out of an airplane (Velasquez, 330). Once both parties are satisfied with the conditions of the agreement, they are free to commit to the agreement via contract. The buyer has freely accepted the risk of the product, and the seller has fulfilled his obligation to provide enough information for the buyer to make an educated decision. The liability transfers from the seller to the buyer once both parties have freely and knowledgeably entered the contractual agreement. In this arrangement, the rights of all parties have been preserved.
Additionally, this arrangement fulfills the deontological requirements of an ethical contract. The seller has a moral duty to provide the safest product possible in relation to the nature of that product. The seller also has an obligation to disclose information about his or her product that could cause unreasonable harm if not carefully managed. Under the “Due Care” theory, the seller is required, as the more expert of the parties, to ensure that the buyer is fuller aware of the dangers. Finally, the seller has the duty to allow the buyer the opportunity to make an informed decision. Once the decision is made, the buyer has the duty to abide by the contractual agreement. As Velasquez states, the manufacturer is no longer “morally negligent after having taken all reasonable steps to protect the consumer and to ensure that the consumer is informed of any irremovable risks that might still attend the use of the product” (337). Therefore, the liability of injury transfers after the seller has fulfilled his duties to the buyer.
The second question addresses the issue of the role of government in the regulation of individual choice. Velasquez describes the impact of a government over regulating safety standards. “Such government interference, as we saw earlier, distorts job markets, making them unjust, disrespectful of rights, and inefficient.” (322). The government, then, should step in only insofar as to protect the rights of the consumers and preserve justice. As discussed above, the seller has a moral duty to disclose information concerning potential hazards inherent in a product. The government should reinforce this as a legal duty (which it has) to enable and empower the buyer’s freedom of choice. By requiring the producer to provide full disclosure, the government has protected the right to free choice of the consumer by allowing the consumer to make an educated decision about the product with all available and pertinent information. If the individual accepts that risk, with full knowledge of the potential for harm, then the buyer accepts whatever consequences arise as a result of that free choice. Therefore, the government’s role is to protect the freedom of choice of the individual by allowing the buyers to know what they are doing and freely choose to do it. Additionally, the government should codify legislation to impart retributive and/or compensatory justice in accordance with the ethical arrangement of liability (seller accepts liability until the buyer freely chooses to accept it by accepting the risks).
Finally, the third question addresses responsibilities of manufacturers to manufacture a “safe” product. Legally, the manufacturer has significant legislation encouraging the production of a “safe” product. Intentionally or unintentionally issuing an unsafe product that poses an unreasonable risk to the reasonable consumer opens the manufacturer to several forms of negligence law and torts including Negligence Per Se, Res Ipso Loquitur, Willful or Wanton Negligence, or Strict Liability under the known defects clause. Litigation can be pursued on civil and/or criminal fronts. In a negligence per se scenario, the seller would have violated a criminal statute, which the buyer would use as evidence of negligence. In a Res Ipso Loquitur scenario, the defendant may have been injured, but unable to determine exactly who was to blame. In this case, all potential defendants are guilty until proven innocent. In willful or wanton negligence, the firm may be subject to punitive damages as well as actual damages for ignoring evidence that a product is dangerous or declining to provide adequate warnings of a known defect or hazard. Finally, in a strict liability case, damage or an injury caused by a product with known defects deemed unreasonably defective under the law makes a firm liable even if there is no negligence or warranties provided. The penalties of these charges can be fiscally intimidating, but the public opinion fallout from a defective product case could cause even more serious revenue damage. Therefore the legal ramifications of not supplying a safe product are usually convincing enough.

The ethical reasons for distributing a safe product are strong. The Utilitarian would analyze what product supplies the greatest net benefit. Manufacturing a safe product prevents injuries, which in turn prevents costly lawsuits. Safe products encourage consumer loyalty and foster trust in the brand name. Unsafe products can seriously injure buyers, leave the seller vulnerable to stiff legal penalties, cause public opinion of the firm to become distrustful, and alienate customers who might have been loyal.
The duty to exercise due care addresses all levels of manufacturer responsibility: design, production, and information. Due care requires the manufacturer to design a product that is safe, test it to guarantee its safety, and fully study the effects of aging and wear and tear. The manufacturer is also obligated to closely monitor production and oversee quality assurance. Finally, the manufacturer should provide hazard information about that product through labels, notices, or instructions.
The ethics of caring reinforces the importance of solid relationships, in this case between the seller and the buyer. Issuing a potentially unsafe product to the consumer violates the care for that relationship by intentionally putting the consumer in the presence of a known hazard. The ethics of virtue would also caution against issuing an unsafe product. Dishonesty, malice, and greed, generally acknowledged as vices, lend to less admirable behaviors such as withholding safety information, placing innocent consumers in harm’s path, and taking shortcuts on quality or safety. The character of a manager who allows this behavior is damaged. Therefore, issuing a defective product to consumers would violate the ethics of virtue.
Finally, the rights of the consumers are violated when a manufacturer sells an unsafe product. Specifically, the freedom of choice is revoked, as the buyer is not freely choosing to accept the product. Without full disclosure, the buyer cannot make an informed decision, and subsequently is not freely choosing to engage in the agreement to purchase the product.
Legal Issues

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