FREE ESSAY ON PRODUCT LIABILITY

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.