Nicole Berkowitz, ‘Strict Liability for Individuals? The Impact of 3-D Printing on Products Liability Law’

Although a relatively new technology, three-dimensional (‘3-D’) printing has been pronounced an invention with ‘the potential to revolutionize the way we make almost everything’. As personal 3-D printing becomes more prevalent, the possibilities are truly endless, limited only by the users’ creativity. While this seemingly infinite potential is quite exciting, it also raises new legal questions: If individuals can 3-D print products, should they be held strictly liable for defective products that they manufacture and sell? And if not, what should be the scope of individual products liability?

Drawing on the original rationale behind strict products liability, I explain that strict liability is not justified for individual sellers and manufacturers of defective 3-D printed products. Unlike commercial sellers, these individuals lack the expertise and resources to adequately inspect for and prevent defects in their products. Moreover, unlike their commercial counterparts, these individuals lack leverage over their buyers in price and warranty negotiations.

Instead, I propose that these sellers should be afforded a ‘micro-seller’ affirmative defense against a claim of strict products liability. Under this defense, the court will evaluate five factors to determine whether, in fairness, the seller should be subject to strict liability for the defective product. The micro-seller defense contemplates the modern marketplace of 3-D printed products and designs and addresses the policy inconsistencies resulting from personal 3-D printing. While it levels the legal landscape for sellers, the defense does not entirely eliminate recourse for consumers, who may still succeed on negligence or breach of warranty claims. 3-D printing offers immense opportunities for innovation and societal growth. In turn, the micro-seller affirmative defense strikes the balance between promoting such innovation and encouraging consumer safety.

Berkowitz, Nicole D, Strict Liability for Individuals? The Impact of 3-D Printing on Products Liability Law (January 11, 2015). Washington University Law Review, forthcoming.

First posted 2015-01-15 07:15:26

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