[Draft] Quality in Consumer Goods

[Christian Democrats]

We're glad to see this proposal revived. Uniformity in torts will go a long way in fostering international commerce.

[Sciongrad]

Completely revised. This proposal now establishes that manufacturers of hazard products shall be held strictly liable. Comments are welcome.

[Aclion]

Test case: Jim breaks into Johns home, John confronts Jim and Jim stabs John with his Potato^tm brand knife (Courts rule this is assault with a deadly weapon, attempted murder) John shoots Jim with his Tomato^tm brand gun(Courts rule this is justifiable homicide)

Is Potato liable for the harm done to John?
Is Tomato liable for the harm done to Jim?

[Sciongrad]

Test case: Jim breaks into Johns home, John confronts Jim and Jim stabs John with his Potato^tm brand knife (Courts rule this is assault with a deadly weapon, attempted murder) John shoots Jim with his Tomato^tm brand gun(Courts rule this is justifiable homicide)

Is Potato liable for the harm done to John?
Is Tomato liable for the harm done to Jim?

It almost seems too obvious to point at that neither company would be held liable. Potato would not be held liable because stabbing for the purpose of causing harm is not a purpose that a reasonable user would believe the product to have. A reasonable user would not find the Potato knife to be hazardous when used in a reasonable manner, and therefore it would fail the test spelled out in clause 5. Tomato would not be held liable because clause 1 explicitly states that manufacturers shall be held strictly liable for products with hazardous defects, not any product which causes harm. Though there is a strong argument for holding gun manufacturers strictly liable for harm caused by the products, I do not intend to do that in this resolution.

ETA: I have included a qualifier in clause 5 to clarify that the test is pursuant to the mandate in clause 1.

[Aclion]

Test case: Jim breaks into Johns home, John confronts Jim and Jim stabs John with his Potato^tm brand knife (Courts rule this is assault with a deadly weapon, attempted murder) John shoots Jim with his Tomato^tm brand gun(Courts rule this is justifiable homicide)

Is Potato liable for the harm done to John?
Is Tomato liable for the harm done to Jim?

It almost seems too obvious to point at that neither company would be held liable.

It's not as obvious as you would think. I based my test case on real world cases that were entertained by courts. You see them in cases where the person who is liable is judgement proof.

[quote="Sciongrad";p="3616947]Though there is a strong argument for holding gun manufacturers strictly liable for harm caused by the products[/quote] There is no reason any person should be held responsible for the criminal acts done by a third party, never mind held responsible for the harm done to people who had it coming.

also

their property is strictly liable for harm caused to the use

Should be "property are strictly liable"

[Kenmoria]

(OOC: The formatting on your last line is broken; it should be [nation]Christian Democrats[/nation], as short without flag is now default.)

[Sciongrad]

It almost seems too obvious to point at that neither company would be held liable.

It's not as obvious as you would think. I based my test case on real world cases that were entertained by courts. You see them in cases where the person who is liable is judgement proof.

It is not enough to be entertained by a court. A court will hear a civil suit for actions in tort provided that the plaintiff has demonstrated that the facts they present establish a prima facie legal case against the defendant. All that means is that the plaintiff's facts cannot be either so insufficient that they could never convince a reasonable jury or immaterial as a matter of law. What's relevant for our purposes is whether the court actually held a knife manufacturer or gun manufacturer strictly liable for harms caused by their products in the scenarios you described. If they have not, then it doesn't matter whether a court has heard the case, because that doesn't show that as a matter of law this proposal would permit absurd outcomes.

[Aclion]

What's relevant for our purposes is whether the court actually held a knife manufacturer or gun manufacturer strictly liable for harms caused by their products in the scenarios you described. If they have not, then it doesn't matter whether a court has heard the case, because that doesn't show that as a matter of law this proposal would permit absurd outcomes.

They have. it's why the Protection of Lawful Commerce in Arms Act is a thing.

[Sciongrad]

What's relevant for our purposes is whether the court actually held a knife manufacturer or gun manufacturer strictly liable for harms caused by their products in the scenarios you described. If they have not, then it doesn't matter whether a court has heard the case, because that doesn't show that as a matter of law this proposal would permit absurd outcomes.

They have. it's why the Protection of Lawful Commerce in Arms Act is a thing.

Please demonstrate, using the language of this resolution, how a gun manufacturer could be held liable for harms caused by the criminal use of one of their products. As I've explicitly stated just moments ago, while strict liability for gun manufacturers exists in many places, this resolution does not seek to establish it.

[Aclion]

I don't believe it does, I just want it on record that it doesn't.

[Potted Plants United]

A large potted plant growing in a plantpot with wheels, in the corner of the debate hall, under an auspiciously placed lighting fixture, comes to life, pushing its plantpot a bit further away from the wall with two strong vines, says, "I grow edible plants for a large variety of clients, which have been specifically genetically designed to be safer to eat than their natural genetics would allow. This often means removing allergens from them or changing their biochemical composition to be less irritating. If there should be a natural mutation in the growing plant individual, that returned the plant's ability to produce the allergen again - a defect, in other words - and someone got a severe allergic reaction, a possibly a life-threatening situation as a result of eating it, would I be held responsible for that situation according to your proposal?"

OOC: Think of someone with severe peanut allergy, and imagine allergen-free GMO peanuts, which they would eat, thinking they were totally safe. So not talking of normally poisonous plants.

[Sciongrad]

A large potted plant growing in a plantpot with wheels, in the corner of the debate hall, under an auspiciously placed lighting fixture, comes to life, pushing its plantpot a bit further away from the wall with two strong vines, says, "I grow edible plants for a large variety of clients, which have been specifically genetically designed to be safer to eat than their natural genetics would allow. This often means removing allergens from them or changing their biochemical composition to be less irritating. If there should be a natural mutation in the growing plant individual, that returned the plant's ability to produce the allergen again - a defect, in other words - and someone got a severe allergic reaction, a possibly a life-threatening situation as a result of eating it, would I be held responsible for that situation according to your proposal?"

OOC: Think of someone with severe peanut allergy, and imagine allergen-free GMO peanuts, which they would eat, thinking they were totally safe. So not talking of normally poisonous plants.

Yes, the manufacturer — in this case, you — would be liable under this resolution if a reasonable consumer would expect the product to be allergen free. Note that the standard that this resolution uses is strict liability, not negligence — it does not matter whether the harm was totally accidental despite taking great precautions to avoid it. All that matters is that the consumer can demonstrate that a reasonable person would believe the product to be safe when performing its ordinary function, that the manufacturer is in the business of producing these products for sale and consumption and that the consumer suffered harm.

[Bananaistan]

OOC: Re 5b. What exactly does "inherently hazardous for any reasonable purpose" mean? EG cars are inherently hazardous products and can cause harm to bystanders even when used reasonably. I'm unclear on what the scope of this clause is supposed to be. Also, the first part of this clause seems to refer non-defective products but the second part allows for damages based on the "severity of the defect".

IC: "We are concerned that this proposal does not recognise any domestic consumer protection laws. We'd prefer Bananamen citizens to continue to be able to seek and receive redress for faulty goods from the retailer in the first instance, with the retailer subsequently dealing with the manufacturer through the mechanisms set up here. One could imagine that bringing a case to an international court will be rather a lot more hassle and expense for Joe Public than the local small claims court."

- Ted

[Sciongrad]

OOC: Re 5b. What exactly does "inherently hazardous for any reasonable purpose" mean? EG cars are inherently hazardous products and can cause harm to bystanders even when used reasonably. I'm unclear on what the scope of this clause is supposed to be. Also, the first part of this clause seems to refer non-defective products but the second part allows for damages based on the "severity of the defect".

When I added that clause, I had in mind products which were hazardous not because of some defect, but because the product itself inherently poses a likely risk whenever it is used for any reasonable purpose. This is meant to hold liable manufacturers that produce items which a reasonable consumer understands are hazardous for their reasonable purposes. Think of a manufacturer that produces a product whose only purpose causes harm, yet which appeals to some purpose that a reasonable consumer might have, potentially because it causes harm. The only purpose of this clause was to include a dangerous class or products that would not be included by subsection a. I am open to removing this clause because I see that it may be too broad in some ways and too narrow in others without much more precise instructions.

IC: "We are concerned that this proposal does not recognise any domestic consumer protection laws. We'd prefer Bananamen citizens to continue to be able to seek and receive redress for faulty goods from the retailer in the first instance, with the retailer subsequently dealing with the manufacturer through the mechanisms set up here. One could imagine that bringing a case to an international court will be rather a lot more hassle and expense for Joe Public than the local small claims court."

This proposal does recognize domestic consumer protection laws, and in fact, it encourages member nations to develop them. The court system proposed here is not meant to replace domestic civil courts, either. Its mandate is explicitly restricted to product liability torts in international commerce. As you rightly point out, the transaction costs are generally high when using an international court, so I imagine this court system will be used generally for class action lawsuits against manufacturers from other member nations. 99% of product liability tort cases will still be tried domestically, where remedy is often more readily and clearly accessible. The court system proposed by this resolution is meant to cover the remainder of cases where remedy from domestic courts is not possible.

[Araraukar]

OOC: Alcohol, tobacco, chemotherapy medications, scalpels...

[Kenmoria]

“There is a repetition of ‘a’ in clause 5b.”

[Sciongrad]

OOC: Alcohol, tobacco, chemotherapy medications, scalpels...

OOC: What are the defects in these items that create harm when they are used for a reasonable purpose? The standard is not “you are liable if it causes harm.” It is “you are liable for harm where your product has defects that make it unreasonably hazardous when it is used appropriately for some reasonable purpose.” None of the items you list meet this standard.

[Bears Armed]

OOC
Medications can have side-effects that potentially cause harm (at least in some recipients), but allowing those medications to be used may still be be less harmful overall than banning them.

[Araraukar]

OOC: Alcohol, tobacco, chemotherapy medications, scalpels...

OOC: What are the defects in these items that create harm when they are used for a reasonable purpose? The standard is not “you are liable if it causes harm.” It is “you are liable for harm where your product has defects that make it unreasonably hazardous when it is used appropriately for some reasonable purpose.” None of the items you list meet this standard.

OOC: Well okay, scalpels don't, but most alcoholic beverages have (aside from just the ethanol) chemicals (natural and artificially added) that can be harmful to the drinker, or cause allergic reactions. Since you're including natural mutations of plants (I'll get back to you on that in PPU's IC later, don't worry) as "manufacturer's fault", I don't see why beverages brewed from possibly faulty (that is, containing stuff that isn't in the ingredients list) ingredients should get a free pass.

With tobacco, pesticide residue comes immediately to mind, but they're basically laced with all kinds of carcinogens to begin with - if the intended product is nicotine, anything else on top of it would be a "defect".

Chemotherapy medications were the strongest example I could think of, of what BA pointed out too: side-effects on medications. See 5.b.

In addition to (and tying into the medications thing) that, are manufacturers responsible for defects that will only show up/happen if the product is used in a way it's not supposed to be used? Because "a purpose which a reasonable consumer would believe the product to have based on its capabilities" would catch recreational use of prescription medications (especially using them combined with alcohol), and "representations in advertisements" doesn't specify advertizements by the manufacturer. You'd only need a viral video craze to advertize the misuse of some product and then the manufacturer could be held liable for the misuse of their product, though the defect would never have affected anyone if the product hadn't been used in a way not intended by the manufacturer.

[Separatist Peoples]

OOC: What are the defects in these items that create harm when they are used for a reasonable purpose? The standard is not “you are liable if it causes harm.” It is “you are liable for harm where your product has defects that make it unreasonably hazardous when it is used appropriately for some reasonable purpose.” None of the items you list meet this standard.

OOC: Well okay, scalpels don't, but most alcoholic beverages have (aside from just the ethanol) chemicals (natural and artificially added) that can be harmful to the drinker, or cause allergic reactions. Since you're including natural mutations of plants (I'll get back to you on that in PPU's IC later, don't worry) as "manufacturer's fault", I don't see why beverages brewed from possibly faulty (that is, containing stuff that isn't in the ingredients list) ingredients should get a free pass.

With tobacco, pesticide residue comes immediately to mind, but they're basically laced with all kinds of carcinogens to begin with - if the intended product is nicotine, anything else on top of it would be a "defect".

Chemotherapy medications were the strongest example I could think of, of what BA pointed out too: side-effects on medications. See 5.b.

In addition to (and tying into the medications thing) that, are manufacturers responsible for defects that will only show up/happen if the product is used in a way it's not supposed to be used? Because "a purpose which a reasonable consumer would believe the product to have based on its capabilities" would catch recreational use of prescription medications (especially using them combined with alcohol), and "representations in advertisements" doesn't specify advertizements by the manufacturer. You'd only need a viral video craze to advertize the misuse of some product and then the manufacturer could be held liable for the misuse of their product, though the defect would never have affected anyone if the product hadn't been used in a way not intended by the manufacturer.

Ooc: I dunno, this is the standard in most of the common law world irl and none of this happens. Maybe this argument is just contrived.

[Sciongrad]

Scalpels don't, but most alcoholic beverages have (aside from just the ethanol) chemicals (natural and artificially added) that can be harmful to the drinker...

Again, it is not sufficient that the product causes harm. It must have some defect that results in harm when used for its reasonable purpose. If you purchase something, consumption of which causes harm but with your full knowledge, the manufacturer is not liable — the harm is not the result of a defect, it is a known feature of the product.

or cause allergic reactions.

If it is known that alcohol can cause an allergic reaction in some users when used for its purpose and consumers are aware of this possibility, then the manufacturer is not strictly liable. If you want a provision that explicitly excepts liability for instances where manufacturers do not clearly warn against potential side effects, I can do that, but you are not raising an argument against strict liability for products.

Since you're including natural mutations of plants (I'll get back to you on that in PPU's IC later, don't worry) as "manufacturer's fault"

I never claimed it was the manufacturer's fault — I claimed they should be strictly liable.

I don't see why beverages brewed from possibly faulty (that is, containing stuff that isn't in the ingredients list) ingredients should get a free pass.

They absolutely should not get a free pass.

With tobacco, pesticide residue comes immediately to mind, but they're basically laced with all kinds of carcinogens to begin with - if the intended product is nicotine, anything else on top of it would be a "defect".

I'm sorry, but when someone buys tobacco, you think it's reasonable to assume that the intended product is nicotine, not tobacco? If someone buys tobacco cigarettes, the manufacturer is not liable for the publicly recognized dangers. This doesn't mean you can sue if you don't know the dangers, it means you can sue if a reasonable consumer wouldn't know the dangers associated with using the product for its reasonable purpose. Dangers that are known by the consumer, who then proceeds to use the product all the while recognizing the harm it is inflicting, are not defects. Now, tobacco products that contain harmful pesticides are a different story — the producer of the pesticide and the producer of the tobacco products could both be liable for harm caused by pesticides contained in the tobacco products.

In addition to (and tying into the medications thing) that, are manufacturers responsible for defects that will only show up/happen if the product is used in a way it's not supposed to be used? Because "a purpose which a reasonable consumer would believe the product to have based on its capabilities" would catch recreational use of prescription medications (especially using them combined with alcohol),

Sorry, but this is a foolish argument. It is possible that some consumer would find medication and conclude that its reasonable purpose is recreational, but a reasonable consumer would not. The product's capabilities must imply to a reasonable consumer that it possesses certain reasonable purposes and then cause harm due to some defect for the manufacturer to be liable.

[Sciongrad]

Further thoughts before I press ahead?

[Sierra Lyricalia]

Further thoughts before I press ahead?

OOC: Is there a reason this is AoI/Tort Reform rather than Reg/Legal Reform or Reg/Safety? Is there reason to think most WA nations are heinously tyrannical to business with their consumer protection laws?

[Marxist Germany]

Further thoughts before I press ahead?

OOC: Is there a reason this is AoI/Tort Reform rather than Reg/Legal Reform or Reg/Safety? Is there reason to think most WA nations are heinously tyrannical to business with their consumer protection laws?

OOC: I agree with SL here, this looks like Regulation; Legal reform rather than Advancement of Industry; Tort Reform.

[Sciongrad]

OOC: Is there a reason this is AoI/Tort Reform rather than Reg/Legal Reform or Reg/Safety? Is there reason to think most WA nations are heinously tyrannical to business with their consumer protection laws?

OOC: I agree with SL here, this looks like Regulation; Legal reform rather than Advancement of Industry; Tort Reform.

Sorry, this was a holdover from when the proposal was initially drafted and that category did not exist. I will change the category — good call.