When Products Self-Destruct: The Malfunction Doctrine

A toaster self-ignites, demolishing itself and the entire house in its fiery demise. A rouge propane grill explodes, leaving behind only a black, ashy burn mark on the patio. A single-seater airplane takes a nosedive and is now unrecoverable in its watery Pacific grave. Each of these products was defective- but how can you convince a jury to hold the product’s manufacturer strictly liable when there is not a shred of direct evidence?

“Defect” ipsa loquitor.

After only six months of law school, every law student knows about res ipsa loquitor, or “the thing speaks for itself.” A simplified statement of the rule: In the absence of direct evidence, this evidentiary rule allows a fact finder to infer negligence if the damages would not normally happen in the absence of negligence and there is no other reasonable way to explain what happened.

The Third Restatement of Products Liability takes the concept of res ipsa loquitor and makes it applicable to strict products liability in tort (or SPLIT, for short). Traditionally in SPLIT, the plaintiff is required to prove the existence of a defect as an element of its claim. In the unfortunate event that the product combusts or is otherwise unrecoverable, a plaintiff trying to prove a manufacturing defect is in a difficult situation. (A manufacturing defect is specific to the defective product, so once the product is gone, the defect is too).

The Third Restatement solves this problem by allowing the fact finder to infer the existence of a manufacturing defect by simply establishing three things:

1) The product malfunctioned
2) The malfunction happened during normal use of the product
3) The product was not changed or altered in a way that could have caused the malfunction.

That’s all. Seems simple, right?

Like most things in the law, it is not that simple. If you are following along, you may be asking yourself why a plaintiff can use res ipsa loquitor—a negligence rule—to recover in strict liability. That is exactly why many courts’ struggle with this cause of action. Many states allow SPLIT recovery under some version of this rule. Quite a few have not. At the moment, Texas is part of the later group—although the Texas Supreme Court has only addressed the concept in dicta. How this evidentiary rule, sometimes called the malfunction doctrine, will develop in Texas remains to be seen. In the meantime, plaintiffs can only hope their defective products leave enough of their original self behind to offer the direct evidence currently required by Texas courts.