[3][4] In 1993, it was reported that "[n]o other country can match the United States for the number and diversity of its product liability cases, nor for the prominence of the subject in the eyes of the general public and legal practitioners.
"[5] This was still true as of 2015: "In the United States, product liability continues to play a big role: litigation is much more frequent there than anywhere else in the world, awards are higher, and publicity is significant.
For a variety of complex historical reasons beyond the scope of this article, personal injury lawsuits in tort for monetary damages were virtually nonexistent before the Second Industrial Revolution of the 19th century.
[8] Common law courts began to shift towards a no-liability regime for products (except for cases of fraud or breach of express warranty) by developing the doctrine of caveat emptor (buyer beware) in the early 1600s.
[9] As personal injury and product liability claims began to slowly increase during the early First Industrial Revolution (due to increased mobility of both people and products), common law courts in both England and the United States in the 1840s erected further barriers to plaintiffs by requiring them to prove negligence on the part of the defendant (i.e., that the defendant was at fault because its conduct had failed to meet the standard of care expected of a reasonable person), and to overcome the defense of lack of privity of contract in cases where the plaintiff had not dealt directly with the manufacturer (as exemplified by Winterbottom v. Wright (1842)).
[8][9][10] During the Second Industrial Revolution of the mid-to-late 19th century, consumers increasingly became several steps removed from the original manufacturers of products and the unjust effects of all these doctrines became widely evident.
[9][10] During the 1940s, 1950s, and 1960s, American law professors Fleming James Jr. and William Prosser published competing visions for the future of the nascent field of product liability.
[11][12] James acknowledged that traditional negligence and warranty law were inadequate solutions for the problems presented by defective products, but argued in 1955 those issues could be resolved by a modification of warranty law "tailored to meet modern needs," while Prosser argued in 1960 that strict liability in tort ought to be "declared outright" without "an illusory contract mask.
[12] The first step towards modern product liability law occurred in the landmark New York case of MacPherson v. Buick Motor Co. (1916), which demolished the privity bar to recovery in negligence actions.
[9] The second step was the landmark New Jersey case of Henningsen v. Bloomfield Motors, Inc. (1960), which demolished the privity bar to recovery in actions for breach of implied warranty.
In Escola, now also widely recognized as a landmark case,[15][16][17][18] Justice Traynor laid the foundation for Greenman with these words: Even if there is no negligence, however, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market.
[20] The year after Greenman, the Supreme Court of California proceeded to extend strict liability to all parties involved in the manufacturing, distribution, and sale of defective products (including retailers).
[21][23] In turn, Prosser was able to propagate the Greenman holding to a nationwide audience because the American Law Institute had appointed him as the official reporter of the Restatement of Torts, Second.
[24] In four of those states, warranty law has been so broadly construed in favor of plaintiffs that only North Carolina truly lacks anything resembling strict liability in tort for defective products.
[25] (North Carolina's judiciary never attempted to adopt the doctrine, and the state legislature enacted a statute expressly banning strict liability for defective products in 1995.
[29] Second, American academic experts in the field of law and economics developed new theories that helped to justify strict liability, such as those articulated by Guido Calabresi in The Costs of Accidents (1970).
[2] In response to these developments, a tort reform movement appeared in the 1980s which persuaded many state legislatures to enact various limitations like damage caps and statutes of repose.
A neo-conservative turn among many American courts[42] and tort scholars during the 1980s led to a recognition that liability in design defect and failure-to-warn cases had never been entirely strict,[43] or had been operating in some respects as a de facto fault-based regime all along,[40] and the American Law Institute expressly backed a return to tests associated with negligence for design and warning defects with the 1998 publication of the Restatement of Torts, Third: Products Liability.
The various implied warranties cover those expectations common to all products (e.g., that a tool is not unreasonably dangerous when used for its proper purpose), unless specifically disclaimed by the manufacturer or the seller.
[3][53] For example, after the landmark case of Donoghue v Stevenson [1932] (which followed MacPherson), UK product liability law did not change any further for many decades, despite "trenchant academic criticism".
[54] Strict liability for defective products finally came to Europe as a result of the thalidomide scandal[3][53] and the victims' ensuing struggle during the 1960s to obtain adequate compensation, especially in the UK and West Germany.
[55] By assuming financial responsibility for the provision of drugs, the government had thereby barred the majority of mothers (the actual product users) and their infants from bringing breach of warranty claims sounding in contract.
In language resembling what Traynor wrote in Escola and Greenman, the Directive's preface states that "liability without fault on the part of the producer is the sole means of adequately solving the problem, peculiar to our age of increasing technicality, of a fair apportionment of the risks inherent in modern technological production."
[2][39][58] Where available, European discovery is rarely self-executing (that is, automatically effective by operation of law), meaning that the defendant and third parties have no obligation to disclose anything unless and until the plaintiff obtains a court order.
[2] As of 2015, product liability in Europe "has remained a fairly minor field which generates fewer cases, more modest awards, and rarely makes it into the headlines" (in comparison to its American cousin).
[6] In July 2018, European Commission staff reported that from 2000 to 2016, a total of only 798 product liability claims had been filed in the national courts of EU member states.
[63] During the late 2010s, the comparative outcomes for consumers affected by the Volkswagen emissions scandal vividly highlighted the deficiencies of European civil procedure as applied to a defendant who had already publicly admitted to violations of U.S. environmental laws.
[64] This embarrassed Germany into dropping its longstanding opposition to European collective redress proposals, and the country also made reforms to its domestic civil procedure.
The legislatures of many other countries outside the EU (then: EEC) subsequently enacted strict liability regimes based on the European model (that is, generally applying only to manufacturers and importers), including Israel (March 1980, based on an early proposed draft of the Directive), Brazil (September 1990), Peru (November 1991), Australia (July 1992), Russia (February 1992), Switzerland (December 1992), Argentina (October 1993), Japan (June 1994), Taiwan (June 1994), Malaysia (August 1999), South Korea (January 2000), Thailand (December 2007), and South Africa (April 2009).
[citation needed] As of 2015, in most countries outside of the United States and European Union, "product liability remains largely a regime of paper rules with little practical impact[.