Grounds of Negligence

In selecting defendants in your case, you’ll start with the manufacturer of the ladder. Manufacturer’s negligence—carelessness—can take three different forms:

• Negligent failure to warn. The manufacturer may be liable if the company knew (or should have known) that, without a warning, the ladder would be dangerous in ordinary use or in any reasonably foreseeable use. It’s possible, for example, that you made the ladder’s collapse more likely by placing it at a less than optimal angle from the wall of the house. That mistake, however, is a reasonably foreseeable use of the product, and if the manufacturer failed to warn you of this possibility, the company is liable for failure to warn.
  • Negligent failure to warn. The manufacturer may be liable if the company knew (or should have known) that, without a warning, the ladder would be dangerous in ordinary use or in any reasonably foreseeable use. It’s possible, for example, that you made the ladder’s collapse more likely by placing it at a less than optimal angle from the wall of the house. That mistake, however, is a reasonably foreseeable use of the product, and if the manufacturer failed to warn you of this possibility, the company is liable for failure to warn.
  • Negligent design. As the term suggests, this principle applies to defectively designed products. In law, a product is defective if, despite any warnings, the risk of harm outweighs its usefulness in doing what it’s designed to do. If, for example, your ladder left the manufacturer’s facility with rivets that were likely to break when weight was placed on it, the ladder may be judged defective in its design.
• Negligent design. As the term suggests, this principle applies to defectively designed products. In law, a product is defective if, despite any warnings, the risk of harm outweighs its usefulness in doing what it’s designed to do. If, for example, your ladder left the manufacturer’s facility with rivets that were likely to break when weight was placed on it, the ladder may be judged defective in its design.
• Negligence per se. The manufacturer may be liable if the ladder fails to meet legal standards. According to standards set by the Occupational Safety and Health Administration (OSHA), for example, the rungs on your ladder should be corrugated or covered with skid-resistant material to minimize slipping. If you’re injured because they’re not, the manufacturer may be liable on grounds of negligence per se.

If you decide to apply the concept of negligence in suing the manufacturer of the ladder, you must prove the four elements of a negligence case that we detailed above—namely, the following:

1. That the defendant (the manufacturer) owed you a duty of care
2. That the defendant breached this duty of care
3. That the defendant’s breach of duty of care caused injury to you or your property
4. That the defendant’s action did in fact cause the injury in question

Grounds of Strict Liability

For the sake of argument, let’s say that your lawyer isn’t very confident about pursuing a claim of negligence against the manufacturer of your ladder. The company doesn’t appear to have been careless in any of the three forms prescribed by law, and it will in any case be difficult to demonstrate all four elements required in negligence cases. He suggests instead that you proceed on grounds of strict liability, pointing out that the principle of strict liability often makes the plaintiff’s legal task less exacting. But (you ask) if the company wasn’t negligent, how can it be liable, either “strictly” or in any other sense? Under the doctrine of strict liability in tort, he replies, you don’t have to prove negligence on the manufacturer’s part. He goes on to explain that under this doctrine, your right to compensation for injury is based on two legal suppositions:

1. Certain products put people at risk of injury no matter how much care is taken to prevent injury.
2. Consumers should have some means of seeking compensation if they’re injured while using these products.

Day in and day out, of course, people use ladders quite successfully. According to the Consumer Product Safety Commission (CPSC), however, every year accidents involving ladders cause three hundred deaths and one hundred thirty thousand injuries requiring emergency medical treatment. In a certain number of these instances, the ladder is defective, and in cases of strict liability, it doesn’t matter how much care was taken by the manufacturer to prevent defects. This seems a little harsh to you, but your lawyer explains that, in establishing the doctrine of strict liability in tort, the court cited the following two reasons for making the grounds of liability so strict:

1. The manufacturer can protect itself by taking steps to anticipate and prevent hazardous product features, but the public can’t.
2. The manufacturer can protect itself by purchasing insurance and passing the cost on to the public in the form of higher product prices. Again, the public enjoys no such protection.

Under these conditions, the manufacturer is willing to take a risk—namely, the risk of making available a product that’s potentially dangerous, especially if defective. The manufacturer thus takes the first step in a process whereby this product reaches a consumer who may suffer “overwhelming misfortune” by using it, especially if it has become defective during the process that takes it from the manufacturer to the user. “Even if he is not negligent in the manufacture of the product,” declared the court, the manufacturer “is responsible for its reaching the market” (italics added). There’s no way of telling when or how a product will become defective or of predicting how or how many people will be injured by it. Defects and injuries, however, are “constant” dangers when people use such products, and users must therefore have some form of “constant protection” under law. That protection is established by the doctrine of strict liability in tort. Why should the manufacturer be held responsible for such defects and injuries? Because, reasoned the court, “the manufacturer is best situated to afford . . . protection.”

And this, explains your lawyer, is why you’re going to sue the manufacturer of your ladder on grounds of strict liability.

Strict Liability in the Distribution Chain

You’re excited about the prospect of recovering monetary damages from the manufacturer of your ladder, but you continue to wonder (on completely hypothetical grounds, of course) whether the doctrine of strict liability is as fair as it should be. What about all the other businesses involved in the process of getting the product from the manufacturer to the user—especially the one that did in fact introduce the defect that caused all the trouble? Does the doctrine of strict liability relieve them of all liability in the case? Indeed not, your lawyer assures you. The concept of strict liability not only provides more practical grounds for suing the manufacturer but also supports your right to pursue claims against members of the manufacturer’s distribution chain. That’s one reason, he points out, why product-liability lawsuits against businesses that sell such “unreasonably dangerous” products as ladders (or even deliver them to worksites) went up a hundredfold between 1950 and 2001, to a total of $205 billion.

Now, let’s say that your lawyer has given your defective ladder to a forensic laboratory in order to find out exactly what caused it to buckle and you to fall. As it turns out, the clue to the problem is the small patch of rust that brought down the price you paid for the ladder when you bought it. The ladder, concludes the lab, had for some time been in close proximity to liquid nitrogen, which can corrode various metals, including aluminum. Sure enough, further investigation reveals that the entire shipment of ladders had been stored for nearly two years in a Ladders ’N’ Things warehouse next to an inventory of liquid-nitrogen–based fertilizer. Your lawyer advises you that, in addition to your strict-liability case against the manufacturer of the ladder, you have a strong negligence case against the retailer from which you purchased it.

Grounds of Breach of Warranty

Moreover, adds your lawyer, there’s one more matter to be considered in determining liability for your injury. Had not the department manager at Ladders ’N’ Things assured you that the ladder would support a weight of three hundred pounds per rung? Your uncle had asked you about the weight capacity of the ladder because he knew that the roofing job meant putting heavy bundles of shingles on the scaffold. A ladder that holds three hundred pounds per rung is a Type IA extra-heavy–duty ladder suitable for such jobs as roofing and construction. According to the lab, however, the construction of your ladder is that of a Type II medium-duty–commercial ladder made for lighter-weight tasks. The manager at Ladders ’N’ Things, explains your lawyer, may have been guilty of breach of warranty—yet further grounds for holding the retailer liable in your product-liability case.