THE AMBIGUOUS CONCEPT OF PRODUCT DEFECTIVENESS AND THE BUSINESS RISK: DIFFERENT APPROACHES OF EUROPEAN AND US COURTS COMPARING THE PRODUCER’S AND USER’S BEHAVIOUR

Abstract The European directive on product liability defines as defective a product that “does not provide the safety which a person is entitled to expect”. In the last years, European national courts have given a number of diverse interpretations of such a broadly and ambiguous defined provision. For an analytical comparison among court decisions, I suggest to distinguish between (1) risk of damages that were foreseeable and avoidable at the time when the product was put into circulation, (2) risk of damages that were unforeseeable and unavoidable, and (3) risk of damages that were statistically foreseeable yet unavoidable. As regards the first category, the Italian Corte di Cassazione has pointed out that the legal provision implies a comparison between the conduct of the victim and that of the producer in order to assess which one of two was in the best position to avoid this risk of damage. Therefore the mechanism of apportionment of the risk is not different from the one implied by a fault liability rule. It is interesting to note that the third American Restatement on torts does not make any reference to the user’s behavior in its black letter on product defectiveness. The analysis shows how this different approach impacts on judicial decision-making. With respect to the second category, the development risk defense clause (expressly provided for by the directive) produces the effect of leaving the victim uncompensated, despite the fact that the European lawmaker has declared his intention to place a liability without fault upon the producer. The problem arises with the third category, because the directive has not envisaged a specific rule for those damages that were statistically foreseeable yet unavoidable, such as the manufacturing defects. On the contrary, Italian law makes explicit that a product “is defective if it does not provide the safety normally provided by other products in the same series”. Under this rule (that is one of the application of a more broad doctrine on business risk) the producer is deemed strictly liable for those damages that, even though unavoidable, were manageable as quantifiable in advance. The question is whether this doctrine could be applied also to those design defects actually foreseen by the producer. Following the business risk doctrine the producer should be held strictly liable as he had accepted the risk in full awareness, having taken it into account in his cost/benefit analysis. However, according to those European courts that do apply the risk/utility test (such as the German courts), the producer is insulated from liability if the cost of an alternative design overweighed the foreseeable risk of damage.