BEHAVIORAL MODEL FOR IMPOSING STRICT LIABILITY IN TORT THE IMPORTANCE OF ANALYZING PRODUCT PERFORMANCE IN RELATION TO CONSUMER EXPECTATION AND FRUSTRATION

• NCJ Number: 55330
• Journal: University of Cincinnati Law Review Volume: 47 Issue: 1 Dated: (1978) Pages: 43-62
• Author(s): M D BERNACCHI
• Date Published: 1978
• Length: 20 pages
• Corporate Author: University of Cincinnati Law Review
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

A CONSUMER EXPECTATION, PRODUCT PERFORMANCE, AND CONSUMER FRUSTRATION (E-P-F) BEHAVIORALLY-ORIENTED MODEL FOR DETERMINING DEFECTIVE PRODUCT LIABLITY IS DISCUSSED.

Abstract

AS A RESULT OF SCANT USE OF EMPIRICAL INFORMATION, MOST JUDICIAL DECISIONS CCONCERNING PRODUCT LIABILITY ARE PREDICATED ON PRINCIPLES OFTEN OUTMODED OR INAPPLICABLE TO A PARTICULAR MARKETPLACE SITUATION. THE BEHAVIORALLY-ORIENTED MODEL FOR DETERMINING DEFECTIVE PRODUCT LIABILITY PROPOSES THAT ALL DISTINCTIONS BETWEEN THE COMPENSABILITY OF ECONOMIC LOSS AND PHYSICAL HARM BE ABOLISHED. FURTHER, THE MODEL PROVIDES THAT COURTS ADOPT A MODIFIED VERSION OF STRICT LIABILITY IN TORT AS THE SOLE APPROACH TO RECOVERY WHENEVER DEFECTIVE PRODUCTS CAUSE HARM, AND ADDITIONALLY, IT HOLDS THAT COURTS SHOULD VIEW A PRODUCT AS 'DEFECTIVE' TO THE EXTENT THAT IT FRUSTRATES THE REASONABLE EXPECTATIONS OF THE ORDINARY CONSUMER. THE MODEL, FIRST OF ALL, EXAMINES ALL OF THE STIMULI THAT HAVE INFLUENCED CONSUMER EXPECTATION REGARDING THE PRODUCT IN QUESTION AS IT HAS BEEN MARKETED IN THE LOCALE WHERE THE PLAINTIFF CONSUMER PURCHASED IT. FACTORS FORMING THE BASIS FOR PRODUCT EXPECTATIONS ARE LISTED AND BRIEFLY DISCUSSED. UNDER THE MODEL, CONSUMERS WOULD HAVE THE DUTY TO EXAMINE THE INFORMATION AVAILABLE AND MAKE PRODUCT PURCHASE DECISIONS ACCORDINGLY. THE PRODUCT MARKETER, ON THE OTHER HAND, WOULD BE RESPONSIBLE FOR PRESENTING THE PRODUCT SO AS NOT TO CREATE FALSE EXPECTATIONS IN THE CONSUMER AS TO THE BENEFITS TO BE DERIVED FROM THE PRODUCT. CONSUMER FRUSTRATION WOULD BE DETERMINED BY COMPARING THE REASONABLE EXPECTATIONS OF AN ORDINARY CONSUMER, BASED ON CONSUMER PERCEPTIONS STIMULATED, WITH ACTUAL PRODUCT PERFORMANCE. CONSUMER FRUSTRATION WOULD BE ACTIONABLE IF IT RESULTED FROM A SIGNIFICANT GAP BETWEEN REASONABLE CONSUMER EXPECTATION AND ACTUAL PRODUCT PERFORMANCE. THE MODEL DEMANDS INCREASED USE OF EMPIRICAL DATA DERIVED FROM BEHAVIORAL RESEARCH ON THE STIMULI PROVIDED AND BEHAVIOR RESULTING IN THE MARKETPLACE. THIS APPROACH WOULD RESULT IN MORE PREDICTABLE AND REALISTIC ASSESSMENTS OF RIGHTS AND DUTIES ARISING BETWEEN MARKETPLACE PARTICIPANTS. REFERENCES AND CASES ARE CITED IN FOOTNOTES. (RCB)