Products liability in Massachusetts — there is no strict liability tort

Start with the thing every other state's guidance will get wrong about Massachusetts.

There is no strict liability in tort for defective products here. The Supreme Judicial Court has repeatedly declined to adopt Restatement (Second) of Torts § 402A. A person injured by a product sues in negligence and in breach of the implied warranty of merchantability under the Uniform Commercial Code.

The warranty claim does the work § 402A does elsewhere. Back v. Wickes Corp., 375 Mass. 633, 640 (1978), described the Legislature as having "transformed warranty liability into a remedy intended to be fully as comprehensive as the strict liability theory" of § 402A. The label is different; the substance is close — and in one respect the warranty claim is stronger than strict liability would be.

What the claim is

A product injured you — a machine, a vehicle, a tool, a medicine, food — and you want the maker or seller to pay.

Where the right comes from

Negligence, at common law; and the implied warranty of merchantability under G.L. c. 106, § 2-314, extended beyond the buyer by § 2-318.

What a plaintiff has to prove — the warranty claim

1. The defendant sold, leased, manufactured or distributed the product, as a merchant of goods of that kind;
2. The product was defective and unreasonably dangerous for its ordinary purpose;
3. The plaintiff was a person the defendant could reasonably have expected to use, consume or be affected by it;
4. The defect caused the injury; and
5. Damages.

Nothing about the defendant's care. The inquiry is about the product, not the conduct — which is what makes the warranty claim the primary theory in nearly every Massachusetts product case.

Defects come in the familiar three kinds: manufacturing defects, where the item departed from its design; design defects, where the design itself is unreasonably dangerous; and warning defects, where the product needed instructions or warnings it did not carry.

Section 2-318 does three things

The section is one paragraph and each clause matters.

It abolishes privity. "Lack of privity between plaintiff and defendant shall be no defense in any action brought against the manufacturer, seller, lessor or supplier of goods to recover damages for breach of warranty, express or implied, or for negligence" — so long as the plaintiff was someone the defendant "might reasonably have expected to use, consume or be affected by the goods." A passenger, a bystander, a borrower and an employee all qualify.

It cannot be disclaimed. "The manufacturer, seller, lessor or supplier may not exclude or limit the operation of this section." A disclaimer buried in a warranty card does not reach personal injury.

Late notice is not automatically fatal. "Failure to give notice shall not bar recovery under this section unless the defendant proves that he was prejudiced thereby." The UCC ordinarily requires a buyer to notify a seller of a breach within a reasonable time; in a personal injury case, the defendant must show it was prejudiced by the delay.

Comparative negligence is not a defence to the warranty claim

This is the point the two research dossiers behind this page disagreed about, and it decides real cases.

Ordinary comparative negligence does not reduce a breach of warranty recovery. Correia v. Firestone Tire & Rubber Co., 388 Mass. 342 (1983), holds that a plaintiff's failure to discover a defect or to guard against it is not a defence to a warranty claim, because the duty is the seller's and it is not a fault-based duty.

What does defeat it is narrower: a plaintiff who unreasonably used a product knowing it was defective and knowing the danger. That is an assumption-of-risk-shaped defence, not comparative fault, and it requires actual knowledge of the specific defect.

The consequence is that a plaintiff who was careless recovers in full on the warranty count while having their negligence recovery reduced or barred under G.L. c. 231, § 85. That is the single strongest reason to plead the warranty claim, and it is why it is almost never omitted.

How long you have to file

Three years. Section 2-318 provides: "All actions under this section shall be commenced within three years next after the date the injury and damage occurs."

Note the trigger — the injury, not the sale and not the delivery.

There is no products statute of repose in § 2-318. Some states impose an outer bar measured from first delivery; Massachusetts does not, and the section contains none. Claims arising from products sold decades ago are not barred on that basis.

Negligence claims run on the three-year period in G.L. c. 260, § 2A, with the discovery rule.

A product incorporated into a building may fall within the six-year construction repose in c. 260 § 2B — which protects those who furnish design and construction services rather than those who supply materials, and the distinction is litigated.

What has to happen before you file

Nothing, though the UCC notice provision makes prompt written notice to the seller worth giving.

A chapter 93A demand letter, 30 days, if a 93A count is included.

What the claim pays

Medical expenses, lost earnings and lost earning capacity.

Pain and suffering, disfigurement and impairment.

Property damage, subject to the economic loss rule — a product that damages only itself is a contract and warranty matter, not a tort one.

Twelve percent prejudgment interest.

No punitive damages, absent a statute. Where the product caused a death, wrongful death carries the $5,000 punitive floor for reckless conduct — and c. 229 § 2 lists breach of warranty under UCC Article 2 as one of the five ways a wrongful death claim arises.

Chapter 93A relief where the seller's conduct was unfair or deceptive — concealment of a known hazard, a false safety claim — which brings the multiplier and mandatory fees the tort claims lack.

Which court

District Court or the Boston Municipal Court within the $50,000 procedural threshold; Superior Court above it, which is where serious injury cases go.

Who can be sued

The manufacturer. The seller, lessor or supplier, each named in § 2-318. A distributor. A component maker, where the component was defective.

Privity is irrelevant, so a plaintiff who bought nothing may still sue everyone in the chain.

Common defenses

• The product was not defective, and met the state of the art when made.
• Misuse or alteration after it left the defendant's hands.
• The Correia defence — unreasonable use of a product known to be defective.
• No causation, including where the injury came from another source.
• An adequate warning was given.
• Limitations — three years from the injury.
• The economic loss rule, where the only damage is to the product itself.

What people get wrong

Massachusetts has no strict products liability. Advice written for other states is wrong here, and the correct claim is breach of the implied warranty of merchantability.

You do not have to prove the maker was careless on the warranty count. The question is whether the product was defective.

You do not have to have bought it. Section 2-318 abolishes privity and reaches anyone the seller could reasonably expect to be affected.

Your own carelessness does not reduce the warranty recovery. Only unreasonable use of a product you knew was defective does.

A disclaimer does not defeat it. Section 2-318 cannot be excluded or limited.

There is no 12-year outer bar. Section 2-318 sets three years from the injury and no repose.

Where it came from

When § 402A swept the country in the 1960s, most states adopted strict products liability as a new tort. Massachusetts did not — and not out of hostility to injured plaintiffs. The Legislature had already amended the UCC's warranty provisions to do the same job, and the SJC concluded in Back that the statutory route was as comprehensive as the tort one would have been.

That decision has consequences the drafters may not have foreseen, and they run in the plaintiff's favour. Because the claim is a warranty claim rather than a tort, the comparative negligence statute — which by its terms reduces recovery in actions "to recover damages for negligence" — does not reach it. Correia confirmed that, and substituted a much narrower defence requiring actual knowledge of the defect.

So a Massachusetts plaintiff who was partly careless is in a better position than a strict-liability plaintiff in a comparative fault state would be. The label that looks like a gap in Massachusetts law is, on the facts that matter most, an advantage.

Common questions

Does Massachusetts have strict products liability?

No. Claims run on negligence and on the implied warranty of merchantability under G.L. c. 106 §§ 2-314 and 2-318, which the SJC treats as the functional equivalent.

Do I have to prove the manufacturer was careless?

Not on the warranty claim. You prove the product was defective and unreasonably dangerous for its ordinary use.

Can I sue if I did not buy the product?

Yes. Section 2-318 abolishes the privity defence and covers anyone the seller could reasonably have expected to use, consume or be affected by the goods.

Does my own carelessness reduce what I recover?

Not on the warranty claim. Only unreasonable use of a product you knew was defective defeats it. Comparative negligence does apply to a negligence count.

How long do I have to sue?

Three years from the date the injury and damage occurs.

Is there an outer time limit from when the product was sold?

No. Section 2-318 contains no statute of repose.

Where these rules live

• Mass. R. Civ. P. 8 — General rules of pleading
• Mass. R. Civ. P. 14 — Third-party practice
• Mass. R. Civ. P. 26 — General provisions governing discovery
• Mass. R. Civ. P. 34 — Producing documents and electronically stored information
• Mass. R. Civ. P. 56 — Summary judgment
• Subpoenaing records