The tort liability for the manufacturing of defective products certainly has its origins in the United States of America, with the development in the twentieth century of the doctrine of “Strict Liability in Tort”, based in the existence of responsibility of the manufacturer for the damages caused, for the simple fact of being the beneficiary of the selling of the products, regardless of negligence or intent to harm.
In the European Continent, with the advent of the Industrial Revolution, the legal doctrine of products liability was developed through the “Risk Theory”, by which the product liability is charged upon those that are the cause of the unreasonable danger, with a harmful result, and, that require a remedy (strict liability).
Spain incorporated in its legislation the Directive 85/374/CEE, of July 25th 1985, of tort liability for damages caused by defective products, by means of Law 22/1994, of July 6th, of tort liability for damages caused by defective products. This law provides the regulation of strict liability, although not in an absolute way, since the manufacturer is exonerated from liability in the cases listed within such law.
This Directive pursued an homogeneous system within the European Union, and as a consequence Spain modified Consumers Law 26/1984 of July 19 th, through the Legal Disposition 1/2007 of November 16th, by means of which was approved the Revised Text of Consumers Law and other complementary laws. This legislative development brought as a result the inclusion of the product liability into the area of Consumer Law.
This Law provides the general liability of the manufacturer for the harm caused by the defects of the manufactured or imported products. This law defines the product as “any movable good, included those attached or incorporated to other movable good or to real asset, as well as gas and electricity”.
The defect of the product can either be manufacturing defect- which implies an imperfection in a product that departs from its intended design; design defect- when the product is adjusted to the design, and as a result is not reasonably safe, the risk of harm could have been avoided by the manufacturer; instructions or warnings defect- the risk of harm could have been avoided if the consumer was provided with adequate instructions or warnings for its use.
According with the Law, it is considered a defective product:
• Any product which does not provide the security that could be legitimately expected, taking into account all the circumstances, and particularly, its presentation, its reasonable intended use and the time of its distribution.
• Nonetheless, a product is defective when it does not provide the security usually provided by other copies of the same series.
• A product shall not be considered defective solely due to the fact that an improved version of such product is distributed.
Also, it is considered as a manufacturer to the purposes of this law, those engaged in producing or importing within the European Union: a) A finished product. b) Any component integrated into a finished product. c) Raw material.
In the event that the manufacturer cannot be identified, the provider of the product will be considered as manufacturer, unless that, within a period of three months, the provider indicates to the injured party the identity of the manufacturer or of the supplier or provider of the defective product. The same rule will be applicable in the case of an imported product, if the product does not indicate the name of the importer, even if it indicates the name of the manufacturer (in the case of suppliers).
The Law establishes as responsible for product liability, the following: 1.- The company that manufactured the finished product that caused damage; 2.- The manufacturer of any integrated component of a finished product, if it produced the damage; 3.- The product of raw material (when such can be identifiable once it has been incorporated into the product); 4.- Those placing their brand into a product (white brands).
The law identifies these as manufacturers, but does not specify the criterion for the distribution of responsibility among them.
Furthermore, the Law stipulates that the party that pretends to obtain remedies for products liability has the duty to introduce evidence of the defect, the harm caused and the bond between both. In essence, the duty to introduce evidence corresponds to the injured party, however, if the circumstances of the production of the damage can be deducted from a manufacturing defect, it is presumed that the product is defective, and therefore the manufacturer must demonstrate that its product is not and that it fulfills all requirements; in this case, there is an exchange of the duty to introduce evidence.
However, the producer will not be liable by giving evidence: a) That the defective product has not been distributed; b) That, according to the circumstances of the case, it may be presumed that the defect did not exist when the product was distributed; c) That the product was not manufactured for sale or any other form of distribution with an economic purpose, nor was it manufactured, imported, supplied or distributed within the context of a professional or business activity; d) That the defect is due to the fact that the product was made in accordance with valid mandatory rules. e) That in accordance with the scientific and technical knowledge at the time the product was distributed the existence of the defect could not be estimated.
The manufacturer of an integrant part of a finished product shall not be liable when proved that the fault is chargeable to the perception of the product to which it was incorporated, or to the instructions given by the manufacturer of this product.
This disclaimer is not applicable to medications, food or food products intended for human consumption, the liable subjects, in accordance with this section, cannot invoke the cause of exoneration included in section 1, letter e). These products, they are identified as consumable goods, which are not covered under the exclusion of liability, “That in accordance with the scientific and technical knowledge at the time the product was distributed the existence of the defect could not be estimated”. This means a great step, although in Spain nor in the European Community, the treatment of these products is not even close to the one existing in the USA, where the simple fact of commercializing a product and getting benefits from it, implies the assumption of responsibility by the manufacturer.
The Law emphasizes that the tort liability of the manufacturer for the damages caused by the defective products is LIMITED. The Law covers personal injury, death and bodily injury, but does not cover moral damages.
The property damages covered, are damages to objects different from the defective product itself, and, objectively intended for private consumption.
a) A release of 390.66 euros shall be deducted from the amount of compensation for property damage.
b) The manufacturer global product liability for death and injury caused by identical products with the same defect will have a limit of 63,106,270.96 euros. Notwithstanding, the property damages not covered by this Law, they may be claimed under the general regulations of civil liability (Spanish Civil Code, Article 1902).
Moreover, the Law establishes that property damages caused in the product itself shall receive no compensation in accordance with the provisions of this section, but those forms of damages are protected with civil and mercantile legislation.
We must also be aware that the action for compensation of damage and loss expires after three years, counting from the date in which the injured party suffered the damage, either by defect of the product or suffered the damage that the product had caused, whenever he knows the identity of the liable of the damages caused.
Also, when compensation has been granted by one included in the list of responsible, this one will have the right to claim against the others during a period of one year, counting from the day in which the compensation was effective.
In the same way, the prescription may be interrupted by any form foreseen in the legislation (Civil Code) irrefutable notification, burofax etc... All rights recognized by the Law in favor of the injured party expire over an elapsed period of ten years, counting from the date in which the product that caused harm has been distributed; unless, if within this period, the legal proceedings had been previously initiated.
Also, the Law describes the consequence of the participation of the injured party in a harmful event, even to the point of excluding the manufacturer from all liability. The Law establishes that the liability can be reduced or eliminated depending on the circumstances on a case to case basis, when the damage was caused jointly by a defect of the product and the guilt of the injured party.
In view of the foregoing, the position of the supplier in the case of defective product is of great importance, since the supplier shall be considered as the manufacturer of the defective product, when the supplier knew the existence of the defect. However, the supplier may claim against the manufacturer by an action of recovery.
Finally, we emphasize that the injured party can claim remedies of product liability directly against all the responsible listed in the Law, since they are jointly and severally liable.
Belzuz Abogados SLP
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