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Who knew? In Texas, oysters are an inherently dangerous product

When dealing with products liability litigation, the media covers news about product recalls, dangerous automobile malfunctions and even prescription drugs. In most of these situations, the consumer who is injured by the product is in no position to have any foresight into the dangers. Someone injured by the side effects of a drug are usually not chemists who might have some suspicions about the medicine. And the driver of a defective vehicle is probably not a mechanical engineer who might have recognized the dangers before a malfunction occurred.

But, under Texas law, some products are considered “inherently unsafe” and the manufacturers or sellers of these products cannot be held liable for injuries that result from their use or consumption. Texas Code Sec. 82.004 says that a product “known to be unsafe by the ordinary consumer” with “ordinary knowledge common to the community” qualifies as an inherently unsafe product. But that certainly leaves a lot of room for interpretation.

How do we decide what is “known” by a consumer? How do we know what is knowledge “common to the community”?  What is a “community”? The entire state of Texas? The person’s neighborhood?

And what is “ordinary knowledge”? Does someone who dropped out of high school have the same “ordinary knowledge” as someone who has a Ph.D.?

Interestingly, the law gives us some examples of these products which include sugar, castor oil, alcohol, tobacco, butter and an oyster. Does anyone in your community have ordinary knowledge that butter is a dangerous product?

Obviously there is a lot of tongue-in-cheek in this post. But, in a court of law, these are all legitimate questions. Maybe you know in a general sense that oysters can make you sick, but what if you specifically asked and your waiter assured you that the oysters at that restaurant are safe? What if you move to Texas from another country and have never even seen an oyster, let alone heard that they can make you very ill or even kill you? What “community” will be used to determine what you should have known?

All of these examples illustrate the importance of seeking legal advice when you believe that you have been harmed by a defective product whether considered “inherently unsafe” or not. Even those may be subject to exceptions where the interpretation of these vague terms can be defined in favor of the injured victim.

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