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5 St. Mary's L.J. 30 (1973-1974)
Product Liability and the Meaning of Defect

handle is hein.journals/stmlj5 and id is 52 raw text is: PRODUCT LIABILITY AND THE MEANING OF DEFECT PAGE KEETON* SOME GENERAL OBSERVATIONS Most of the issues pertaining to the liability of manufacturers, and other sellers in the marketing chain, for physical harm arising from the dangerousness of products can be regarded as facets of two broad problems-the meaning of defect and the kind of misconduct on the part of users and others that will insulate a particular seller in the mar- keting chain from liability if the product is found to be defective. There are other issues, such as whether a manufacturer should be ex- cused because (a) either the injury resulted from a risk that was sci- entifically unknowable prior to the injury or (b) the state of the art was, at the time of sale and prior to injury, such as to make it impos- sible or impractical to minimize a known or knowable risk. While these other issues are important, the tremendous amount of uncer- tainty regarding the two basic problems as to the meaning of defect and the effect of misconduct of others must be substantially reduced before there can be effective administration of justice with reference to claims in this area. Hardly any claims based on inherent risks in the way products are designed can be settled at present with any confi- dence of what the outcome of litigation would have been, and trial judges are faced with an impossible task of describing to the jury in any sort of intelligible manner the scope of the seller's responsibility in such cases. It is respectfully submitted that a recent decision by the Supreme Court of California not only failed to clarify the meaning of defect, but rather added to the uncertainty. In Cronin v. J.B.E. Olson Corp.,' a 1-ton bread truck with built-in bread racks was involved in an acci- dent. The body of the van contained three aisles along which there were welded runners extending from the front to the rear of the truck. Each rack held 10 bread trays from top to bottom and five trays deep. The trays slid forward into the cab or back through the rear door to facilitate deliveries. While the plaintiff, the driver of the bread * Dean, The University of Texas School of Law. 1. 104 Cal. Rptr. 433 (1972).

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