It is widely known that the doctrine of product liability, as applied in California and elsewhere, renders a manufacturer, and others in the supply chain from manufacturer to the public, strictly liable for product defects. This doctrine has important differences from the otherwise applicable tort theory of liability: negligence, which requires a showing of his lack of due care for the defendant to be liable.

To maintain a products liability action, a plaintiff must first show that the object or instrumentality claimed to be defective was in fact a “product.” But what does that mean? The answer is not always clear.

Case law shows that the doctrine of strict liability is not restricted just to sales transactions (for example, a car made by a manufacturer and sold by a dealer to a consumer). The courts have said that a product is tangible personal property distributed commercially for use or consumption. Use of an article, not just sale, can meet the required definition of a product. That has important consequences.

For instance, one lower court has held that a tile display board used in a home improvement store to show samples of various products available for purchase, was a product for purposes of the doctrine of strict liability for product defects, even though the display board itself was never for sale. In drawing these sorts of lines, several courts have focused on whether the thing alleged to be a product (an item used, but never sold to the public) created a hazard to the general public; or whether it was, on the other hand, accessible to only a few employees in some hidden part of a warehouse where fabrication or manufacturing was going on. The more the item was accessible to the public, the more likely it will be found to be a product under the doctrine of strict liability.

Courts have often stated that the public policy reasons underlying the strict products liability concept should be considered in determining whether something is a product within the meaning of its use, rather than just to focus on the dictionary definition of the word. The paramount policy to be promoted by the doctrine has been described by several courts as the protection of otherwise defenseless victims of manufacturing defects, and the spreading throughout society of the cost of compensating them. So the definition of a “product” is often viewed expansively.

The primary occasion when the courts have rejected a plaintiff’s effort to seek application of the doctrine of strict product liability, on the ground that there is no product, has been when he or she has tried to apply the theory to defective services, rather than defective goods. That is because the doctrine does not apply to defective services. So, for example, one court held that a hospital is not strictly liable for injuries resulting from hidden defects o its premises, since the provision of a hospital room is in the nature of providing professional services rather than a product. Another leading case held that a poorly operated raft trip was not a “product”, because the consumer purchased a package of services (lodging, food, a guide), not just the opportunity to use defendant’s raft.

There are many close questions which arise in this area that the courts in California have not yet resolved. For example, in one pending case a gym member was exercising on a stationary bicycle during a class sustained injury when one wheel failed and metal protruded. Now before the courts is whether this injury was sustained primarily as a result of a service (as the gym contends); or primarily as a result of a product owned by the gym, but not for sale (as the plaintiff contends). Only if the plaintiff prevails, and the injury is deemed due to a product defect, will the doctrine of product liability apply.

Ralph L. Jacobson of GJEL Accident Attorneys represents plaintiffs in personal injury cases.

Ralph Jacobson received his law degree from Stanford University in 1969. His concentration has been in personal injury for over 30 years. He has written numerous articles for the CEB Civil Litigation Reporter, a leading professional journal for attorneys.