It is not at all uncommon to be involved in products liability litigation arising from alleged personal injuries resulting from a supposedly defective product. Typically, the plaintiff (or plaintiff’s estate) asserts that he or she was using the product and, because of the defect, suffered injuries. Sometimes, though, the plaintiff was not actually using the product that allegedly caused her injuries. Instead, she was an “innocent bystander” who neither purchased nor used the product at issue. In that case, does she have standing to sue the product manufacturer under products liability theories for defective design or manufacture?
The answer, not surprisingly, depends on the jurisdiction in which suit is filed. There appears to be a split between those jurisdictions that limit products liability claims to users/consumers and those that more broadly expand standing to so-called innocent bystanders who sustain personal injury from an alleged product defect despite not using (or buying) the product. Although the majority of jurisdictions appear to adopt the latter view, which may reflect the trend in the law’s ongoing development, a number of jurisdictions continue to adhere to the former, presenting viable dispositive arguments for companies defending products liability litigation.
As to that minority view, by way of example, Alabama appears to be one of those jurisdictions that, at least for the time being, limits products liability claims against products manufacturers to plaintiffs who were either users or consumers of the allegedly defective product. The Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”) is a judicially-created doctrine of liability for defective products based on Section 402A of the Restatement (Second) of Torts. See Casrell v. Altec Indus., Inc., 335 So.2d 128, 132-33 (Ala. 1976); Atkins v. Am. Motors Corp., 335 So.2d 134, 140-41 (Ala. 1976). In announcing the AEMLD, the Alabama Supreme Court explained that “[l]iability . . . attaches solely because the defendant has exposed expected users of a product not reasonably safe to unreasonable risks.” Atkins, 335 So.2d at 141 (emphasis added). The key, it would seem, is that the AEMLD applies to users of the allegedly defective product. That fact is reflected in the very first element of a plaintiff’s AEMLD prima facie case:
To establish liability:
(1) A plaintiff must prove he suffered injury or damages to himself or his property by one who sold a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer.
Atkins, 335 So.2d at 141; Casrell, 335 So.2d at 132-133.
As originally adopted in 1976, it appears that the AEMLD did not encompass non-users (i.e., bystanders) of allegedly defective products. The comments to Section 402A of the Restatement (Second) of Torts expressly note that the drafters took no position on the application of that section to non-users, which they referred to as “bystanders.” See Lunsford v. Saberhagen Holdings, Inc., 125 Wash. App. 784, 789 n.2 (2005) (“The Institute expresses neither approval nor disapproval of expansion of the rule to permit recovery by such persons.”) (quoting 2nd Rst. § 402A cmt. o). That left it to states to determine how best to address bystander claims. In the four decades since first announcing the AEMLD, other than a narrow “rescue doctrine” exception, the Alabama Supreme Court has not extended AEMLD liability to bystanders allegedly injured from another's use of a product. Instead, although a plaintiff need not be the direct purchaser, she still must be “the ultimate user or consumer” of the product. See Dillard v. Pittway Corp., 719 So.2d 188, 193 (Ala. 1998).
In characterizing its creation of the AEMLD, the Alabama Supreme Court explained that it “changed products liability cases in this State from the pure form of negligence theory to a modified version of the Restatement (Second) of Torts, § 402A (1965), strict liability theory, premising liability on proof that the injured ultimate user: (1) ... suffered injury or damages to himself or his property by one who sells a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer.” Peek v. Merit Machinery Co., Inc., 456 So.2d 1086, 1088 (Ala. 1984). “Thus, to state a claim under the Alabama Extended Manufacturer's Liability Doctrine, one need not allege the ‘negligence’ of the defendant. The plaintiff must aver that he suffered injury or damages to himself or his property by one who sold a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer.” Id. at 1089. It would appear, then, that bystander products liability claims against product manufacturers are not viable in Alabama.
In contrast to jurisdictions like Alabama, many others do recognize the viability of bystander claims for products liability against product manufacturers. To that end, each of the following jurisdictions appear to recognize bystander liability for products liability claims: Arizona, California, Florida, Iowa, Michigan, Mississippi, Missouri, New York, Pennsylvania, Utah, Vermont, and Wisconsin. And this may be the trend going forward. After all, the Restatement (Third) of Torts dropped use of the term “user or consumer.” Instead, it provides that “[o]ne engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.” Restatement (Third) of Torts: Products Liability, section 1. “As is readily apparent from this text, the Third Restatement does not limit a strict liability cause of action to the ‘user or consumer,’ and broadly permits any person harmed by a defective product to recover in strict liability.” Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 54 (3rd Cir. 2009).
It is important for companies and defense counsel involved in products liability litigation, especially those doing so on a multi-jurisdictional basis, to be familiar with the viability of innocent bystander claims in the jurisdiction at issue as it may give rise to dispositive treatment of claims where the Restatement (Third) approach has not yet been adopted.