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Calloway v. City of Reno2/29/2000
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Moreover, we agree with the district court's conclusion, in this instance, that the townhouses are not "products" for purposes of strict products liability. The Restatement of Torts (Second) section 402A defines strict liability as follows:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product or entered into any contractual relation with the seller.
The doctrine of strict products liability developed from judicial concerns about a plaintiff's ability to prove a remote manufacturer's or seller's negligence, to spread the costs of damage from dangerously defective products to the consumer by imposing them on the manufacturer or seller, and to promote safety by eliminating the negligence requirement. See generally Prosser and Keeton ยง 98, at 692-93.
Some courts have concluded that a building can constitute a "product" under strict products liability. See, e.g., Blagg v. Fred Hunt Co., 612 S.W.2d 321 (Ark. 1981)(stating that "product" applies to a house just as it applies to an automobile; obligation of seller or manufacturer is one of enterprise liability); Miller v. Los Angeles County Flood Control District, 505 P.2d 193 (Cal. 1973)(ruling that the doctrine of strict products liability applied to homes, since they can be defective products); see generally Annotation, Recovery, Under Strict Liability in Tort, for Injury or Damage Caused by Defects in Building or Land, 25 A.L.R. 4th 353, 365-66 (1983) [hereinafter Defects in Building].
Other courts however, have concluded that strict products liability does not apply to buildings. In reaching their conclusions, these courts have distinguished the policies underlying strict products liability from those involved in the situation where a house or building is defective. More specifically, these courts have recognized that in the construction context, tracing a defect to a manufacturer or supplier and locating that entity generally poses no significant problem, unlike the situation with the remote manufacturer of a product that travels through interstate commerce. Additionally, these courts have pointed out that a builder cannot easily limit his liability by express warranties in disclaimers and that the purchaser of a building has the opportunity to make a meaningful inspection of the property at issue. See Defects in Building at 366-67, and cases cited therein.
Other commentators have provided additional reasons why construction products should not be subject to strict liability:
The uncritical application of the strict tort liability doctrine . . . disregards some very real differences between mass-produced goods and buildings and their respective methods of production. The raising of a building and the assembly-line manufacturing of a product are not analogous processes. From start to finish, the construction of a building depends on the cooperative interaction of a number of independent parties.
ost buildings are one-of-a-kind, requiring methods and materials that change with each project. The architect cannot work out design w
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