PUERTO RICO Law and Practice Contributed by: Mónica Ramos-Benítez and Roberto A. Cámara-Fuertes, Ferraiuoli LLC
product’s condition – whether the product is “unrea - sonably dangerous” by its design or manufacturing. Manufacturing defect Article 1543 of the Civil Code of 2020, PR Stat. Ann., Tit. 31 §10808, provides that a product is unreason - ably dangerous by its manufacturing when it deviates from its design or it does not meet the safety expecta - tions of the ordinary consumer who uses said prod - uct for the purpose for which it was intended or for a purpose that is reasonably foreseeable. Up until the adoption of the Civil Code of 2020, a man - ufacturing defect had been defined as that of a prod - uct which fails to match the average quality of simi - lar products. See Montero Saldaña v Amer . Motors Corp ., 107 DPR 452, 462 (1978). The Civil Code of 2020 now expands the definition to include products that fail to meet the safety expectations of the ordi - nary consumer. This new addition can be interpreted as the codification of the consumer-expectations test that had been adopted by the PR Supreme Court for design defect claims, now made applicable to manu - facturing defects. Design defect Article 1544 of the Civil Code of 2020, PR Stat. Ann., Tit. 31 §10809, provides that a product is unreason - ably dangerous by its design when: • its quality and safety do not meet the expectations of an ordinary consumer; or • the design of the product caused the damage and those who intervene in the distribution chain do not prove that the design is reasonable, considering, among other things: (a) the usefulness of the product; (b) the technological limitations to design it in a safer manner at a reasonable cost; (c) the unreasonable risk that could be foreseen at the time of design; and (d) the instructions or warnings provided for the proper use of the product. This statutory language suggests that the new Article 1544 has codified the dual approach established by California’s Barker v Lull Engineering Co ., Inc ., 573 P.2d 443 (1978) for design defects that had been
adopted in Puerto Rico by Rivera Santana v Super . Pkg ., Inc . et al ., 132 DPR 115 (1992), also known as the consumer-expectations test (Article 1544 (a)) and the risk-utility test (Article 1544 (b)). Failure to warn or provide adequate instructions The Civil Code of 2020 did not codify a failure to warn or to provide adequate instructions claim indepen - dently, and instead only mentions the provision of warnings or instructions as one of the factors to con - sider in determining the reasonableness of the design under Article 1544 (b) for design defects. Commenta - tors on the legislative history suggest that the failure to warn or to provide adequate instructions claim was excluded because it is more akin to negligence as opposed to strict liability. Another explanation could be that Article 1542 of the Civil Code of 2020 specifi - cally codified the strict liability of all those involved in the distribution chain, not just of the manufacturer, and excluded the failure to warn or to provide ade - quate instructions claim from the statute for that rea - son. Until the PR Supreme Court has the opportunity to interpret the statutory provisions of the Civil Code of 2020 in the product liability context, courts are likely to follow the pre-2020 norm. The leading authorities on failure to warn claims prior to the adoption of the Civil Code of 2020 are Aponte v Sears Roebuck de P . R ., Inc ., 144 DPR 830 (1998) and Rodríguez Méndez v Laser Eye , 195 DPR 769 (2016), pursuant to which a manufacturer could be held strictly liable if: • it knew or should have known of the inherent dan- ger of the product; • it did not include warnings or instructions, or the ones given were inadequate; • the lack of warnings or instructions made the prod - uct inherently dangerous; and • the lack of warnings or instructions was the proxi - mate cause of the plaintiff’s damages. The manufacturer’s duty to warn and provide instruc - tions include: • providing adequate instructions for the product use;
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