Inherently Dangerous Products?

Generally, we expect manufacturers to create products in a way that makes them safe to use. But there are some products consumers buy that will be dangerous no matter how they are created. Washington has adopted comment k to the Restatement (second) of Torts Section 402A, which precludes liability for certain “unavoidably unsafe products.” As long as a seller’s products are properly prepared and marketed, and proper warning is given, the seller of unavoidably unsafe products is not to be held strictly liable merely because the seller has undertaken to supply the public with an apparently useful and desirable product, attended with a well-known and reasonable risk.(Ricardo Ruiz-Guzman v. Amvac Chem. Corp., 141 Wn.2d 493 (Wash. 2000) The Washington Supreme Court has further explained that many products, including knives, hatchets, planers, guns, and baseball bats, “may be capable of causing injury, but that does not mean they should be removed from the market.”

A defendant in a product liability action asserting that the product is an “unavoidably unsafe product” within the meaning of comment k has the burden of producing evidence that the particular product’s value to society greatly outweighs the risks posed by the product to its users. If the burden is met, the burden shifts to the plaintiff to produce evidence of the existence of a safer product that could serve the same purpose as the challenged product with less risk of harm to users.

An inherently dangerous product is not an “unavoidably unsafe product” unless

(1) the product’s utility greatly outweighs the risk created by its use;

(2) the risk created by use of the product is known;

(3) the benefits of the product are not achievable by another manner; and,

(4) the risk created by use of the product was unavoidable under the state of knowledge existing at the time the product was manufactured.

Ricardo Ruiz-Guzman v. Amvac Chem. Corp., 141 Wn.2d 493 (Wash. 2000)

But keep in mind that under a case by case approach, not all products that cannot be made safer would qualify as unavoidably unsafe products entitled to protection. Instead, the defendant manufacturer of a challenged product would have to demonstrate that an inherently dangerous product is also necessary regardless of the risks involved to the user. (Ricardo Ruiz-Guzman v. Amvac Chem. Corp., 141 Wn.2d 493 (Wash. 2000)