Product Liability Intro Massachusetts law on products liability derives from the law on implied warranties, as codified in the

Uniform Commercial Code, Mass.G.L. c. 106, sections 2-314 through 2-318. There is no separate doctrine of strict product liability as such, although amendments to the UCC have made Massachusetts warranty law virtually identical to the law of strict products liability in other jurisdictions. See Back v. Wickes, 375 Mass. 633 (1978). Under Massachusetts law, product defect claims can be brought either as negligence actions or as breach of warranty actions. See generally 37 Mass. Prac., Tort Law 16-17 (3d ed. 2005). For any claim in product liability, in order to succeed under Massachusetts law, a Plaintiff must articulate a product defect that caused injury. Swartz v. General Motors Corp., 375 Mass. 628, 631 (1978). A Plaintiff need not prove the exact cause of the accident or disprove every possible cause, but he or she must show that there is a greater likelihood that the Defendant's product was a proximate cause of the injury (or enhancement of the injury) than that it was not. Enrich v. Windmere Corp., 416 Mass. 83, 616 N.E.2d 1081, 1084 (1993) (Emphasis supplied). A Plaintiff must prove two elements: (1) the Defendant had a defective product, and (2) the product caused Plaintiff's injury. See Colter v. BarberGreene Co., 403 Mass. 50, 63-64 (1988). A Plaintiff alleging that a product was defective can proceed by showing that the product either was a proximate cause of the injury or was a proximate cause of an enhancement of the injury a person sustained in an otherwise foreseeable accident. Simmons v. Monarch Mach. Tool Co., 413 Mass. 205, 207 (1992). There were no eyewitnesses that a flaming pita left the oven and caused the fire as alleged. However, circumstantial evidence can be used to establish an inference of product defect 1 under strict

See, e.g., Adkins v. K-Mart Corp., 511 S.E.2d 840, 847 (W. Va. 1998) (quoting Anderson v. Chrysler Corp., 403 S.E.2d 189, 194 (W. Va. 1991)); see also Restatement (Second) of Torts 328 D (1965); Robert A. Barker, Circumstantial Evidence in Strict Liability Cases, 38 Albany L. Rev. 11, 1314 (1973); J. Gregory Marks, Determining the Indeterminate Defect, 36 St. Marys L.J. 237, 239 (2005); Charles H. Cranford, Note, Circumstantial Evidence and Proof of Defect, 50 N.C. L. Rev. 417, 419 (1972); Allan E. Korpela, Annotation, Products Liability: Proof of Defect Under Doctrine of Strict Liability in Tort, 51 A.L.R. 3d 8 2[a] (1973).
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products liability2. In Barker v. Lull Engg Co., 573 P.2d 443, 454 (Cal. 1978), the circumstantial component of a reasoned analysis was discussed: When a product fails to satisfy . . . ordinary consumer expectations as to safety in its intended or reasonably foreseeable operation, a manufacturer is strictly liable for resulting injuries. Under this standard, an injured plaintiff will frequently be able to demonstrate the defectiveness of a product by resort to circumstantial evidence, even when the accident itself precludes identification of the specific defect at fault. [E]vidence that the accident in question is the type of accident that does not happen without a manufacturing defect is probative circumstantial evidence of a manufacturing defect. See Restatement (Third), supra, at 3, p. 111; see also 2A American Law of Products Liability (3d Ed.2008) 31:26, p. 35. Accordingly, to avoid summary judgment, the Plaintiff need not eliminate all possibility that the Defendant's conduct was not a cause, but need only introduce evidence from which a reasonable juror could conclude that it was more probable than not that the injuries were caused by the Defendant's conduct. See, e.g. Mullins v. Pine Manor College, 389 Mass. 47, 58, 449 N.E.2d 331 (1983). Where the probabilities are at best evenly divided between negligence and its absence, it becomes the duty of the court to direct the jury that there is not sufficient proof. The plaintiff need not, however, conclusively exclude all other possible explanations, and so prove his case beyond a reasonable doubt. Such proof is not required in civil cases, in contrast to criminal cases. It is enough that the facts reasonably permit the conclusion that negligence is the more probable explanation. This conclusion is not for the court to draw, or refuse to draw, in any case where either conclusion is reasonable, and even though the court would not itself find negligence, it must still leave the question to the jury if reasonable men might do it. Cardillo v. Aron, 26 Mass.L.Rptr. 504, Not Reported in N.E.2d, 2010 WL 986503 (Mass.Super.,2010).

See Elmore v. Am. Motors Corp., 451 P.2d 84, 87 (Cal. 1969); Vandermark v. Ford Motor Co., 391 P.2d 168, 170 (Cal. 1964); Codling v. Paglia, 298 N.E.2d 622, 628 (N.Y. 1973).
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