What Is an Unavoidably Unsafe Product?

Consumers should be able to trust that the products they buy are safe. Of course, some products are only safe when used correctly. Others are inherently unsafe but necessary. The question is whether the product's manufacturer is responsible for the injuries their products cause.

The answer depends, in part, on whether the product qualifies explicitly as an "unavoidably unsafe product." These products can be dangerous even without design or manufacturing defects.

Is the Product Defective?

Under tort law, a product can be defective in three ways. If a defective product injures you and your attorney can prove that it meets one of these criteria, you may have a claim for damages.

The basic types of defective products include the following:

• Suppose a product's design can foreseeably result in injury, and an alternative design could have reduced the risk of injury. In that case, a product has a design defect.
• If the product's design is safe, but the company didn't manufacture it properly, it's a manufacturing defect.
• If a company markets a product with inadequate instructions or warnings, it has a marketing defect.

If a product has a design, manufacturing, or marketing defect and you're hurt, the manufacturer, distributor, or seller may be liable. But, the courts created an exception for products considered "unavoidably unsafe."

Is the Product Unavoidably Unsafe?

An unavoidably unsafe product isn't necessarily dangerous by design. It's a product that manufacturers cannot make safe for its intended and ordinary use.

Courts generally look at the following four criteria to determine if a product is unavoidably unsafe:

• How the manufacturer made the product
• How the company marketed the product
• The utility of the product compared with its risk
• Whether there are safe alternatives available

The judge will decide this legal issue. If they rule in your favor, you will recover damages.

Preparation

If the manufacturer doesn't make the product correctly, the product may be defective. In these cases, the defendant cannot claim the "unavoidably unsafe" exception because there's a chance their manufacturing error made the product unsafe.

Marketing

The defendant must market their product appropriately for the defendant to argue it was unavoidably unsafe. If the product directions are faulty or it's sold with inadequate warnings, the "unavoidably unsafe" doctrine will not shield the defendant from liability.

The unavoidably unsafe doctrine does not apply to marketing defects. So, if a pharmaceutical company markets a drug without indicating how or who should take it, it will not fall under this exception. If the company sells the drug with no warnings about potential adverse reactions, it may not be unavoidably unsafe.

Utility vs. Risk

The utility or usefulness of the product must outweigh its risk of danger for the exception to apply. For example, if a drug cures a mild case of hiccups but causes death in half the people who use it, it wouldn't be unavoidably unsafe.

Beauty products are an example of a product whose utility outweighs the risk. For instance, most eyeliners contain kohl, which has lead in it. Many powder cosmetics, such as eyeshadow, blush, and bronzers, contain talc, which causes cancer. But, the concentrations of these minerals are so low that they don't pose a significant risk of harm.

Available Alternatives

For the unavoidably unsafe exception to apply in your product liability lawsuit, there cannot be other ways to achieve the product's intended purpose. If an alternative product is just as effective, the judge will not deem the product "unavoidably unsafe."

In determining if there's an alternative, courts consider the risk avoided by the other option compared with the alternative's cost, benefits, and relative safety. A bottle of water would be a safe alternative product for the hiccup cure.

Types of Unavoidably Unsafe Products

Some products pose a danger no matter how carefully the company manufactures them. It's not even that the product's design is defective. They are just inherently dangerous. Three categories of products that are unavoidably unsafe are prescription medications, medical devices, and cleaning solutions. We will discuss each of these in further detail below.

Prescription Drugs

The most widely recognized category of unavoidably unsafe products is prescription drugs. Thousands of people have filed product liability claims in recent years. Most of these cases involve the adverse side effects of the medications.

Some courts hold that all medications automatically qualify as unavoidably unsafe. Public policy favors the development of beneficial drugs even if they pose some risk. Other courts weigh the drug's usefulness against its risk of harm.

The Zantac litigation is a prime example of product liability law cases for dangerous medications. Thousands of patients have filed suit against GlaxoSmithKline (GSK) for injuries caused by their heartburn medication. The plaintiffs allege they developed cancer after using Zantac. GSK has only settled a handful of cases, and the company still denies liability.

The court applies strict liability to many dangerous drug product liability actions. The drug manufacturer may be liable for any injuries their medications cause, regardless of whether the company was negligent.

Medical Devices

Some courts also find medical devices to be unavoidably unsafe. For example, many patients have filed product liability lawsuits against C.R. Bard (now part of BD), Ethicon, and Atrium for defective hernia mesh. The plaintiffs allege the manufacturers were liable for their injuries due to the following:

• Defective condition of the hernia mesh
• Defects in the manufacturing process
• Improper labeling
• Failure to warn as dangerous

Ethicon and Atrium both settled their claims in 2021. Bard is still fighting the litigation. The third bellwether trial is in late 2023.

When deciding whether these devices are unavoidably unsafe, the court will consider the type and quality of research done by the manufacturer. Courts also consider the product's necessity for human life and public health and whether the FDA investigated its risk vs utility.

Other Products That Are Inherently Unsafe

Other products that have qualified as unavoidably unsafe include cleaning compounds like commercial dry-cleaning solvents, industrial-strength bathroom cleaners, and acetone.

Benzene is a harmful chemical in cosmetics, hair perms, bleach, and dyes. Other examples of unavoidably unsafe products include the following:

• Cosmetics
• Hair perms
• Bleach
• Dyes
• Knives
• Lawncare equipment
• Power tools
• Drain openers (chemicals)

Usually, when a product is inherently unsafe, the manufacturer will include adequate warnings about its dangers. They may also include a disclaimer stating that they aren't liable for any injuries caused by the product.

If a product should have a warning and doesn't, you may have a legal claim against the manufacturer, distributor, wholesaler, and retailer. You should contact a personal injury lawyer and ask them to review your case. If they believe your case is strong, you must decide whether to sue the manufacturer for damages.

Get Legal Advice for Your Product Liability Questions Today

Nobody expects you to understand how product liability cases work unless you're an attorney. Product liability claims are incredibly complex, particularly those involving "unavoidably unsafe" products. Your best bet is to hire an experienced personal injury attorney.

If a product has injured you and you want to know whether you should file suit, consult our product liability attorney directory and schedule your free case evaluation.