She-Hulk Gets Products Liability Theories Right
It’s not art imitating life but rather a very eerie instance of coincidence.
Take the most recent episode of She-Hulk: Attorney at Law, now streaming now on Disney+, and what happened in my classes this week.
In my bar exam essay writing course earlier this week, I recently reviewed a Conflict of Laws fact pattern in which a plaintiff brought a products liability claim based on strict liability against a manufacturer of a home water desalinization unit.
As I reviewed the legally significant facts of the test question, I asked the third-year law students to take their Conflict of Laws hats off for a moment and put their Torts hats on. I wanted to take a few minutes to focus on products liability claims because I’ve seen too many students answer products liability questions incorrectly because they assume all products liability claims are based on strict liability.
That’s simply incorrect.
Products liability refers to the liability of a supplier of a defective product to someone injured by the product. The defect can be a manufacturing defect, a design defect, or a defect based on inadequate warnings or instructions.
Products liability claims—whether they result from a manufacturing, design, or information defect—can be based on four separate and independent theories. And in the absence of the test question indicating that the products liability claim is a “strict products liability claim” or a “products liability claim based on strict liability,” students will be well-served by examining the potential applicability of each of the different theories.
A products liability claim can be based on one of the following four theories:
Strict liability
Negligence
Intent
Breach of warranties (like the implied warranties of merchantability and fitness for a particular purpose and representation theories like express warranties and misrepresentation).
For bar exam purposes, a products liability claim based on intent is rare. Under this theory, the defendant will be liable to anyone injured by an unsafe product if the defendant intended the consequences or knew that they were substantially certain to occur. If intent is present, the most likely action is a battery rather than a products liability claim.
So, when examining products liability claims on the bar exam, I cautioned students to make sure they focus on negligence and breach of warranties in addition to strict liability.
This warning came on Tuesday and Wednesday during my two sections of the same bar prep course.
What happened during Thursday’s episode of She-Hulk: Attorney at Law (S1:E8: “Ribbit and Rip It”)?
I won’t give away any spoilers, but here’s an exchange between Jennifer Walters (the attorney specializing in superhuman-oriented legal cases as the green 6-foot-7-inch She-Hulk) and her client:
Client: "I have third degree burns all over my legs. I mean, I deserve justice. And compensation for all my pain, mental anguish and … stuff."
Jennifer Walters/She-Hulk: "Well, this does seem to be a pretty clear case of manufacturer’s defect—uh, negligence, strict liability, and breach of warranty." [emphasis added]
Client: "Yes?"
Jennifer Walters/She-Hulk: "I do believe you are owed compensatory damages."
Client: "Yeah! Whoo!"
I don’t know who the legal consultants or advisors are for She-Hulk: Attorney at Law, but they nailed it with this dialogue by identifying three important theories of products liability claims!
