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Written by Adarsh Tripathi


Manufacturers, distributors, suppliers, retailers, and other parties who make items available to the general public may be held liable for the harm those products cause under the doctrine of product liability. Although the term "product" has a broad definition, tangible personal property is the only kind of product that falls under the purview of product liability law.

People who suffer harm as a result of an unsafe product may have a claim against the people who created, made, sold, or supplied it. Strict responsibility has replaced caveat emptor as the legal standard for manufacturing flaws that render a product disproportionately harmful. Product liability verdicts, according to manufacturers and other distributors and sellers of goods, have increased the cost of goods supplied and enriched plaintiffs' attorneys.

In most jurisdictions, a plaintiff's cause of action may be based on one or more of four different theories: Negligence, breach of Warranty, Misrepresentation, and strict tort liability.

Evolution of Common Law

Product liability law has undergone a historical progression that centres around the dismantling of the privity doctrine. This doctrine limited legal action to parties directly involved in a transaction, shielding manufacturers from liability and leaving injured plaintiffs with little recourse. However, key cases like Winterbottom v. Wright [i]in England and MacPherson v. Buick Motor Company[ii] in the United States challenged this notion, allowing injured parties to seek damages even without a direct contractual relationship. The introduction of strict liability based on warranty theory, notably in Henningsen v. Bloomfield [iii]Motors, further expanded the scope of product liability law. A significant milestone was reached in 1981 when punitive damages were permitted in strict liability tort actions, signifying a shift towards holding manufacturers accountable even without privity of contract.

Merchantable Quality as given Sale of Goods Act, 1930.

The article "Merchantable Quality" by John Livermore explores the concept of merchantable quality and provides tests to determine if a product meets the required standard. Merchantable quality refers to the condition of goods sold in a business context, where the goods should be suitable for the buyers' common purpose and align with the provided descriptions, considering the price and circumstances. If the buyer has inspected the goods and defects were brought to their attention or noticeable, merchantable quality does not apply to those defects. Goods must be fit for their intended purpose at the time of sale, and if they fail to perform as intended, they are considered unmerchantable. The case of Australian Knitting Mills Ltd v. Grant [iv]is cited as an example, where a garment with a manufacturing defect caused dermatitis. The court ruled that the retailer breached the warranty or condition of merchantable quality. The Sale of Goods Act 1930 [v]establishes that goods sold by description must correspond with the provided description. When goods are sold by both sample and description, it can be challenging for all goods to fully match the description. If goods are sold solely based on description without the buyer seeing them, the seller's obligation is absolute, and hidden defects are not a valid defence. In summary, when someone is injured by a defective product, theories of recovery such as strict liability, negligence, or breach of warranty come into play, each with its own considerations for a product liability suit. Strict liability is generally seen as the broadest basis for liability.

Application To The Sports Industry

I. Nature of the Sports Industry

The field of sports law is still developing and encompasses various legal areas such as tort law, contract law, and labour law. This project focuses specifically on sports contracts, which establish the rights and responsibilities of parties involved in professional sports. Product liability cases are common in the sports industry due to the wide range of sports products used and the potential for harm to participants. Unlike non-sports products, defects in sports products can render them unreasonably dangerous, especially those designed for user protection. Examples include face masks, helmets, knee pads, and goggles, where a defect can significantly impact the product's ability to ensure user safety.

II. Duty to Warn

Manufacturers have a responsibility to provide instructions and warnings about product use, even if there are no design or manufacturing defects. The need for warnings depends on what is considered reasonable in the circumstances, considering factors like consumer expectations, product complexity, potential dangers, the likelihood of injury, and the feasibility of including warnings. Sports products often require warnings, such as gymnastic equipment and trampolines. In a trampoline accident case[vi], the manufacturer's failure to provide warnings led to a ruling in their favour, presuming that a warning would have been heeded. However, when warnings are provided and injuries still occur, the sufficiency of the warnings can be challenged. This is particularly relevant for sports products used by children. The adequacy of warnings depends on whether they effectively capture users' attention, inform them of the dangers, and advise on how to avoid them. Warnings must be understandable to ordinary consumers and consider additional factors that may require extra information, such as language barriers or limited education. Universal symbols, like skull and crossbones, may be necessary in some cases. The adequacy of warnings and the duty to warn will continue to be debated in sports product liability cases.

Defences Available

I. Contributory Negligence

In cases where a plaintiff's product liability claim is based on negligence, their own contributory negligence will prevent them from recovering damages, just like in any other negligence case. However, this rule does not necessarily apply in a claim based on strict liability. Contributory negligence cannot be used as a defence in a strict liability claim, but an assumption of risk can be. If the plaintiff's negligence only involves a failure to detect the defect in the product or take precautions against its existence, it is not considered a defence. However, if the plaintiff knowingly and unreasonably proceeds to encounter a known danger, which is commonly referred to as an assumption of risk, it can be used as a defence in strict liability cases. The failure to discover a defect cannot be used as a defence, but the use of the product after discovering the defect can be used as a defence.

II. Assumption of the Risk

Contributory negligence and assumption of risk are two different concepts in legal cases. Contributory negligence is evaluated based on an objective standard, determining whether a person acted reasonably or not. On the other hand, assumption of risk is evaluated subjectively, assessing whether the plaintiff actually understood and willingly accepted the risk involved.

Traditionally, it has been established that participants and spectators in athletic events are deemed to have assumed the inherent risks associated with the sport. This notion has been deeply ingrained and difficult to challenge. In a football-related case, Vendrell v. School District No. 26C[vii], the court acknowledged that body contacts, bruises, and clashes are inevitable in the game of football, and players willingly accept the risk of injuries. However, more recent court decisions have recognized that participants do not automatically assume all risks on the playing field but only those risks that are normally associated with the sport. Moreover, assumption of risk is unlikely to be a valid defence in product liability claims by athletes since the risk of dangerously defective equipment is not a risk normally associated with sports.

In summary, contributory negligence and assumption of risk are distinct legal concepts. While athletes have traditionally been seen as assuming the risks inherent in their sport, recent developments acknowledge that participants only assume risks normally associated with the activity. Assumption of risk is generally not a valid defence in product liability cases involving athletes, as defects in equipment are not considered typical risks in sports.

III. Comparative Negligence

The issue of applying comparative negligence principles to strict liability claims has posed challenges for courts and legal experts. The difficulty arises from the inherent differences between comparing the negligence of the plaintiff and the defectiveness of the product. While many jurisdictions have ruled in favour of some form of comparison between the plaintiff's misconduct and the defendant's defective product, some courts have rejected the use of comparative negligence as a defence in such cases.

Courts that disallow comparative negligence defend their stance by either strictly interpreting the relevant comparative negligence statute or arguing that strict liability and comparative negligence are conceptually incompatible. To address these conceptual difficulties, several theories have been proposed. The most significant theory involves the concept of "fault" instead of negligence. The landmark case of Sandford v. Chevrolet Div. of Gen. Motors[viii] established this approach. In this theory, fault is considered broader than negligence, and in the context of strict liability, the defendant's fault lies in placing a dangerously defective product on the market. The plaintiff's damages are then reduced based on the percentage of fault assigned to them. Applying comparative fault principles to strict product liability is generally seen as a fairer way to allocate damages compared to the strict contributory negligence rule, which is an all-or-nothing approach. However, a conceptual challenge remains: how to compare the plaintiff's "apples" of negligence with the defendant's "oranges" of a defective product.

IV. Misuse

One defence that can be used in product liability claims is "misuse." This defence is similar to contributory and comparative fault and can be seen as derived from those principles. The basic concept is that a seller can expect their product to be used in its intended manner. However, certain uses of a product may be reasonably foreseeable even if they are not the "normal" intended use. It's important to note that "normal use" does not always mean the same as intended use. If misuse is expected or reasonably foreseeable, it should not be an excuse to market a product that is unreasonably dangerous. The issue of foreseeability should be evaluated objectively, not based on the manufacturer's subjective perspective, to prevent the manufacturer from narrowly defining the intended use of the product and avoiding liability for reasonably foreseeable misuse.

In the case of Sipari v. Villa Olivia Country Club[ix], the plaintiff was injured when the golf cart he was driving at high speed tipped over. The defence of misuse did not prevent the plaintiff from seeking compensation because it was foreseeable that the cart might be driven at top speed, despite the manufacturer's intended use of the cart. An extreme example is Wyatt v. Winnebago Industries[x], where the court determined that hotwiring a motor home was not automatically considered misuse as a matter of law and should be decided by the jury.

If the manufacturer's warnings are found to be inadequate, it is likely to negatively impact their misuse defence. While manufacturers are not obligated to warn against every possible type of misuse, it is prudent for them to provide warnings for activities that could be clearly identified as misuse but still reasonably foreseeable.

In the case of Pell v. Victor J. Andrew High School[xi], a 16-year-old plaintiff was injured while doing a somersault off a mini-trampoline. The manufacturer argued that the product was not intended for such use and that it constituted misuse. However, the court rejected this argument, stating that the warnings and information provided by the manufacturer were ineffective in conveying the potential for serious injury. Although it may seem obvious that a 16-year-old should be aware of the risks involved, the court considered somersaulting off a mini-trampoline as reasonably foreseeable, and a responsible manufacturer should have explicitly warned against it.

V. Risk-benefit approach

The risk-benefit approach involves considering and balancing several factors, including the potential harm of the chosen design, the likelihood of dangers, the feasibility of safer alternative designs, and the reduced utility of the product if alternative designs were chosen. This approach is often used as an alternative or addition to the consumer expectation test in determining product liability.

In the context of sports equipment, the need for unrestricted movement is considered important. While a baseball batting helmet with a face mask may be safer, the open-face batting helmets currently in use are not considered design defects because most hitters require an unobstructed view of the pitch to effectively hit it. Alternative designs would significantly reduce the utility of the batting helmet, outweighing the safety benefit.


This blog post explores the changing impact of product liability risk on various individuals, firms, and institutions in today's society. It begins by defining product liability and product liability risk, and then highlights the evolving nature of product liability law. The post analyzes several factors that have contributed to the recent increase in the frequency and severity of product liability litigation. These factors include legal developments, heightened awareness of product claims, public concerns about product safety, and the abundance of new and existing products in the market. Notably, the growth of product liability law aligns with the expanding sports industry, emphasizing the importance for personal injury attorneys to familiarize themselves with the unique challenges associated with applying product liability law in the sports sector.

*The author is a law scholar from Army Institute of Law, Mohali

(The image used here is for representative purposes only)


[i] Winterbottom v. Wright, 152 Eng. Rep. 402 (1842)

[ii] MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050(1916)

[iii] Hadley v. Baxendale, 156 Eng. Rep. 145 (1854)

[iv] Australian Knitting Mills Ltd v. Grant, (1933) 50 CLR 387

[v] Section 15, Sale of Goods Act, 1930.

[vi] Nissen Trampoline Co. v. Terre Haute First National Bank, 3 32 N.E.2d 820

[vii] Vendrell v. School Dist. No. 26C, Malheur Co., 376 P.2d 406 (Or. 1962).

[viii] Sandford v. Chevrolet Div. of Gen. Motors, 642 P.2d 624 (Or. 1982).

[ix] Sipari v. Villa Olivia Country Club, 380 N.E.2d 819 (111. 1978).

[x] Wyatt v. Winnebago Industries, 566 S.W.2d 276 (Tenn. 1977)

[xi] Pell v. Victor J. Andrew High School, 462 N.E.2d 858 (111. App. 1984).


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