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Strict Product Liability

— February 18, 2016

Arkansas has long followed the Restatement (Second) of Torts Section 402A (1965) which provides that in order for a plaintiff to recover for harm or injury caused by a defective product, the product must be sold “in a defective condition” and be unreasonably dangerous to a consumer. What this means is that as a consumer, you have the right to assume that the products you purchased are safe and they will not cause you any harm, as long you are following the instructions of how to use them. It is a manufacturer’s responsibility to make sure that all of the products they sell are engineered, manufactured, and labeled correctly for their purpose. When the consumer upholds his or her responsibilities and is still injured, he or she may sue the manufacturer for manufacturing and marketing a faulty product. Another form of product liability is strict liability.

Arkansas Stat. Ann. § 34-2802 explains to us the definitions of “product in defective condition” and “unreasonably dangerous product”:

  • A product in defective condition means a condition of a product that renders it unsafe for reasonably foreseeable use and consumption. Elk Corp. of Arkansas v. Jackson, 291 Ark. 448 (Ark. 1987); and,
  • An unreasonably dangerous product is a product that is dangerous to an extent beyond that which would be contemplated by the ordinary and reasonable buyer, consumers who acquires or uses such product, assuming the ordinary knowledge of the community, as to its characteristics, propensities, risks, dangers and proper and improper uses.

When a product is not safe, or is unreasonably dangerous, and an individual is injured or dies, the manufacturer may be held responsible for the harm or death that is caused.


Now, knowing all the above, you may realize you can bring a lawsuit claiming strict product liability to a defective product you purchased. Keep in mind that according to the Arkansas Supreme Court in order to recover under the strict product liability theory a plaintiff must prove all of the following elements. E. I. Du Pont de Nemours & Co. v. Dillaha, 280 Ark. 477 (Ark. 1983).

(1) That damage was sustained. The Supreme Court of Arkansas explained in Mixon “the strict liability theory eliminates the need for the plaintiff to show both privity and negligence. But a plaintiff still must prove injury and that it was caused by the product. The possibility that the product may have been defective is not enough. The proponent of a products liability claim must produce evidence from which the trier of fact may reasonably conclude that it is more probable than not that the injury resulted from a defective product. It is not necessary that a plaintiff prove the defect by direct proof.” Mixon v. Chrysler Corp., 281 Ark. 202 (Ark. 1984). For example, if an oven has a defect that makes it overheat and potentially catch fire, but it never actually causes a fire, there has not been actual damage sustained.

(2) That the defendant was engaged in the business of manufacturing or assembling or selling or leasing or distributing the product.

(3) That the product was supplied by the defendant in a defective condition which rendered it unreasonably dangerous. The Arkansas Supreme Court explained in Elk, “A product is unreasonably dangerous if it is dangerous to an extent beyond that which would be contemplated by the ordinary and reasonable buyer, consumer or user who acquires or uses such product. This definition indicates the emphasis in the product liability act on determining the product and whether it is defective by its consumer use.” Elk Corp. of Arkansas v. Jackson, 291 Ark. 448 (Ark. 1987) For example, when someone purchases a knife, they know that it is dangerous. But if the handle is defective and shatters, injuring the person, this could be considered by the court as dangerous beyond what a reasonable buyer would contemplate.

(4) That the defective condition was a proximate cause of plaintiff’s damages.

The Supreme Court of Arkansas applied all four of these elements in Dillaha. In Dillaha, the manufacturer was held liable to a consumer for defective paint. Dillaha, the plaintiff in this case operates an automotive paint and body shop. He consistently purchased paint and other DuPont products sold by the defendant in that case. The cars painted in his shop were returned with millions of tiny bubbles in the finish. Dillaha was forced to paint the cars over numerous times. The paint, provided by the defendant was analyzed and it was indisputably polluted. The court found that the circumstantial evidence of the polluted paint, the use of only the defendant’s paint for painting cars and the lack of any previous paint problem at Dillaha’s automotive paint and body shop was sufficient to show that the defendant was responsible for the harm that the contaminated paint caused. E. I. Du Pont de Nemours & Co. v. Dillaha, 280 Ark. 477 (Ark. 1983).

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