Comparative Fault and Strict Product Liability in California

On Behalf of Griswold LaSalle Cobb Dowd & Gin LLP

As kids, we were told not to say bad words and if you did, your parents would make you wash your mouth out with soap.  Luckily, I never had to wash my mouth out with soap, but I was curious if it would really be that bad.  So one day I took the smallest taste of a bar of soap with the tip of my tongue and instantly realized putting the whole thing in your mouth would not be fun.  I never said another bad word.

Of course, the Tide Pod challenge takes this to a whole new level.  Forget touching your tongue to a bar of soap; the challenge requires you to completely eat what amounts to a two square inch packet of something designed to get blood, grease, and other gunk off clothes.  It’s a bad idea; don’t do it.  You can die and even if you don’t die, you can get extremely ill.  The best case scenario is that you survive, but you still will not be famous because another crazy challenge is next week.

To top it off, if you decide to sue the maker of Tide Pods for making them look like candy (something the U.S. Consumer Product Safety Commission issued a warning to parents several years ago), remember, you’re an adult.  As an adult, you will not get the benefit of the doubt in front of a jury that it’s okay to eat something you know is not food, because you thought it, “looked like candy.”  This might work for a small child, not for an adult.

The law would give Proctor and Gamble, the maker of Tide and Tide Pods, several defenses.  Yes, makers of products have to ensure they are safe.  But they only have to be safe for their intended uses.  For example, the law does not allow you to successfully sue a bicycle manufacturer for a defective product if you are using the bicycle as a ladder, instead of riding along a nice country road as intended.

In California, we have what is called “comparative fault.”  Meaning, even if there was some case where the product was defective, your case can get reduced by the percentage of fault the jury decides you contributed to your own injury.  My guess is a jury would put that percentage pretty high – 75% at least.

So you will not be famous, or rich, and you might die.  But apparently this actually has to be said: do not eat packets of laundry detergent, even if they look like candy.

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