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Due Care Theory

A consumer expects, as a matter of course, that a product purchased is as safe as possible. In recent years, the issue of product safety and the question of the locus of responsibility for unsafe products has been an important topic in business ethics. One approach to product liability is that of “due care.”

The “due care” approach is based on the assumption that in commercial transactions, the consumer and manufacturer do not meet as equals in the relationship. The manufacturer, and to a lesser degree the retailer, has greater knowledge and expertise. This leads to assigning the duty to deliver a product that lives up to the expressed and limited claims made about the product to these individuals. The manufacturer is held to the duty of “due care” even if an explicit disclaimer of responsibility is made. The manufacturer in virtue of having greater expertise has a positive moral duty to take whatever steps necessary to ensure the safety of a product. The manufacturer is obligated to take all reasonable precautions to ensure that products are free of defects that could potentially cause harm to the consumer. Every individual has a moral duty to refrain from any action that could harm another, and conversely, every individual has a right to expect such treatment from others. Failure to take “due care” is a breach of moral duty and violates the rights of the consumer who may be injured. The right of the consumer to have a safe product rests on the need of the consumer to rely on the expertise of the manufacturer.

Legal Context

The legal expression of the “due care” theory is expressed in the law of torts, which holds persons liable for acts of negligence. The definition is contained in the Second Restatement of Torts, Section 2820, as a conduct that does not meet the established legal standard for the protection of others against unreasonable risk of harm. Product liability falls under the law of torts, which governs private transactions in which there is no written contract. Under tort law, a person has a claim against another if one has been harmed due to an act or omission that constitutes a breach of duty. Tort law has three purposes. First, it is designed to compensate the injured party, and second, it intends to provide incentives to manufacturers to take precautions in the production of goods and services. The third purpose of tort law is to punish offenders. The standard of care is the “reasonable person” standard expressed as what care a reasonable person would exercise in a given situation. The standard is obviously higher for those persons possessing greater skill or knowledge. In this case, the manufacturer can be assumed to have greater knowledge about the product and its use than the consumer. Therefore, the manufacturer can be held legally liable for harm caused by the product.

The standard applies to all areas of product development and production. In design, the product ought to be in accordance with government and industry standards. It must be designed to be safe under all foreseeable conditions, including possible misuse by the consumer. To ensure design integrity, many manufacturers have established review boards to evaluate the product for safety. There are also external firms such as the Underwriters Laboratory that reviews electrical products for safety and quality.

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