Chapter 6. The Plaintiff’s Case: Strict Liability for Manufacturing Defects 55 results (showing 5 best matches)
- Previous chapters provided an overview of the history of modern products liability law. They portrayed the law as possibly based on the notion that a defective product is a misrepresented product. The language of misrepresentation, however, is not typically used in products cases. Rather, the rhetorical thrust of the bulk of case law from employs strict liability as product liability’s central organizing principle.
- Restatement of the Law Third, Torts: Products Liability
- Strict liability in most states requires a finding that the impugned product is in order to distinguish products liability from insurance.
- Case law conceives of three kinds of product defects. This chapter explores manufacturing defects. A manufacturing defect describes
- It might seem that the new car that crashes, or the boiler or Coke bottle that blows up, is itself evidence of negligence. In this sense, “strict liability” for manufacturing defects might perform a function similar to the doctrine of was the preferred products liability doctrine before the shift to strict liability occurred.
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Chapter 4. “Non-Strict” Theories of Products Liability 78 results (showing 5 best matches)
- • Second, every plaintiff’s products liability attorney will admit that whenever possible, they will structure their trial rhetoric around negligence principles, not strict liability. The ubiquity of wrongdoing as a moral grounding for tort is such that juries are perceived to be much less likely to find a product defective, or proximately causal of a plaintiff’s injuries, if they cannot find any wrongdoing on the part of the defendant.
- Despite the rise of strict liability described in chapter 3, negligence has retained a persistent toehold in American products liability law. In subsequent chapters the thesis that negligence is the viable rule for design and information defects will be examined. In this chapter, it is sufficient to note that even if strict liability is a viable grounding for products liability, negligence principles will continue to be invoked. The cautious practitioner will typically want to formulate his case as a negligence case. There are at least three reasons for this:
- Punitive damages are in practice limited to intentional tort cases, to cases of gross negligence, and to intentional breach of contract cases. Therefore, in principle, there are no punitive damages in negligence-based products liability suits.
- A modern products liability suit may include a number of different legal claims justifying recovery of compensation from the manufacturer or seller of a product that has caused injury. In the United States, the types of claims associated with products liability are negligence, strict liability, breach of warranty, tortious misrepresentation, and various statutory consumer protection claims. Because plaintiffs’ suits are filed before discovery, products liability complaints typically allege many of these legal grounds, even though at trial the experienced plaintiff’s attorney will focus on theories most likely to be successful in the case at hand.
- Today, of course, in most states a products liability suit is styled as one of “strict liability,” not one of “implied warranty,” so UCC provisions will not be formally dispositive. As has been noted, though, the grounds for recovery on either theory (“strict liability” and “misrepresentation”) are quite similar.
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Introduction 49 results (showing 5 best matches)
- of American products liability law, the different theories of liability invoked at various stages of this history, and the role of insurance theory in explaining the emergence of modern “strict liability.” Part I also introduces , adapted from a products liability tragedy in Florida. Julian Felipe’s Case will be fleshed out in each chapter of the book with a view to drawing attention to the practical implications of every doctrinal area of products liability law. The idea is to apply principles of products liability in ways that allow readers to merge theory and practice.
- Product liability lawsuits have played a crucial role in ensuring public safety, encouraging—and sometimes compelling—manufacturers to put safety first. A 1988 survey of 264 CEO’s of manufacturing companies found that a third had improved their product lines as a result of the threat of litigation, 35% had improved product safety, and 47% had improved warnings to consumers.
- Accidents involving complex goods designed and produced by man are increasingly the source of product liability suits. Consider that, in 1950, manufacturers’ CGL (Commercial General Liability) policies covered products liability at no significant cost. Today premiums for these same policies cost manufacturers billions of dollars, of which less than half actually reach injured consumers as compensation payments for injury.
- After you have read these two op-eds, ask yourself: why did Toyota settle the individual cases and the class action? Are the settlements a sign that American products liability law protects consumers from big business indifference to safety, or are they proof that American products liability law is itself ‘defective?’ Or does the truth lie somewhere between these polar conclusions?
- analyzes current products liability law. The crucial notion of “defect,” the foundation of current law, will be unpacked in an effort to determine whether “strict liability” can and should prevail. Products liability causation issues (both “but-for” and “proximate”) as well as problems involved in the determination of recoverable damages are also examined in this part of the book. Each chapter continues to rely on Julian Felipe’s Case to illustrate specific concepts. . Your efforts will be repaid by a greatly enhanced understanding of the material.
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Chapter 11. The Defendant’s Case: Causation and Other Peoples’ Behavior 64 results (showing 5 best matches)
- See, e.g., Bowling v. Heil Co., 511 N.E.2d 373, 380 (Ohio 1987): “[W]e hold that principles of comparative negligence or comparative fault have no application to a products liability case based upon strict liability in tort. Strict liability, in focusing on the product rather than the conduct of its manufacturer or seller, does not seek to apportion a loss among all persons who have caused or contributed to it. Rather, it seeks to spread the loss among all users of the product. The concept of comparative fault is fundamentally inapplicable.” [footnote omitted].
- Several jurisdictions have eliminated joint and several products liability. ., In Egbert v. Nissan Motor Co., Ltd., 228 P.3d 737 (Utah 2010), holding that “a defendant product seller cannot become liable for the entire injury merely by virtue of being a codefendant,” rejecting joint and several liability in favor of apportionment.
- One “pass the buck” way out of this conundrum for a court is to decide that the alchemic comparison of plaintiff’s misbehavior and defendant’s strict liability is “for the fact-finder”—but it is still necessary to instruct the jury. In one noteworthy case the Hawaii Supreme Court ruled that, though by statute the state had adopted modified comparative negligence in tort cases based on negligence, in strict liability products cases its rule would be pure comparative negligence (what the plaintiff’s negligence is “compared with” would be left to the tender and unsupervised mercies of the likely bewildered jury.) concedes that “strict” products liability has distinct whiffs of negligence, and concludes that “the trier of fact should have no real difficulty in setting percentages of fault. Putting out a product that is dangerous to the user or the public involves a measure of fault that can be weighed and compared, even though it is not characterized as negligence.”
- ) contention that liability for design and informational defects is essentially based on negligence is obviously relevant to one’s evaluation of ) or that defendant’s product is not defective (see Chapter 10). But when product defect is conceded or found by the fact finder, the question dividing will be called, and arguments for one or the other will require an understanding of the various grounds for products liability.
- If assumption of risk were an instantiation of , it should reduce, not eliminate, the liability of the seller of the defective product in jurisdictions that have adopted the comparative negligence rule. show that if plaintiff’s assumption of risk is seen as the of plaintiff’s injury, liability of the seller will be precluded even in comparative negligence jurisdictions. And to repeat, there is no need to invoke “assumption of risk” when one really means “there was no evidence of defect.” Cutting oneself while playing with knives results in no liability for the knife manufacturer, without invoking assumption of risk.
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Chapter 14. Special Types of Product Litigation: Toxic Substances and Class Actions 107 results (showing 5 best matches)
- The reader of this Book should by now have a good appreciation of the “what, when, why and how” of American products liability law. In this penultimate chapter, the focus shifts away from general principles onto two special types of products suits.
- 8. The recent decline of toxic products litigation (the asbestos well is almost dry) may have led firms that have acquired expertise in this area to compete for -toxic class action products. This acquisition of specialized class action products skills may be the best explanation of Toyota’s 2010 “sudden acceleration” liability crisis. In this way toxic products issues spread to other areas of products liability.
- There are two different types of mass products liability actions: single accident cases, where many people are injured by a catastrophic product failure occurring at one time and place; and toxic products cases where injuries result from a series of events occurring over considerable time. Due to the complexity of the individual issues presented by toxic products cases, class certification is typically easier to obtain in single accident cases than in toxic products cases. This chapter will focus on particular problems inherent in the toxic products case.
- King of Torts
- Asbestos litigation aside, toxic and other “mass” products liability litigation has waxed and waned over the years, and the widespread publicity surrounding U.S. District Court Judge Janis Jack’s dismissal of fraudulent claims involving silica (once touted as “the next asbestos”) has triggered investigations of attorneys and physicians by a congressional committee, federal prosecutors in New York, and the Attorney General of Texas. The silica debacle has raised important questions about the future of toxic and mass products liability litigation.
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Chapter 5. “Strict” Liability: Who May Sue Whom? 123 results (showing 5 best matches)
- The “paradigmatic” defendant in a lawsuit based on strict liability for product defect is, of course, the manufacturer of the product. If X makes and sells a widget with a hidden defect, which causes the widget to blow up in the face of an unsuspecting Y, basic tort principles discussed in Chapter 3 dictate that X will be liable to Y.
- People are almost never liable for the harm caused by defective products. Almost all product liability defendants are legal entities whose shares are owned by people or other legal entities. Limited liability is the quintessence of the American corporate form, shielding the personal assets of shareholders from any liability for the debts of the corporation. Thus, in principle no shareholder, whether that shareholder be another corporation or an individual, is liable for the debts of a corporation in which the shareholder is an investor.
- Manufacturers “own” their defective and unreasonably dangerous product, but what of a downstream wholesaler or retailer who has no opportunity to inspect it before resale? Products liability law holds these resellers liable as well. This liability is, as has been mentioned, somewhat vicarious; resellers generally benefit from an indemnity suit against the manufacturer of the defective product.
- This interaction of WC insurance and products liability is toxic. A United States Department of Commerce Interagency Task Force on Product Liability, covering claims from mid-1976 into early 1977, found that at least 10 percent of all products liability claims arose from workplace accidents, though of course only an infinitesimal percentage of product use is at the workplace. of all dollars paid (as opposed to claims made) in products liability damages may be for workplace injuries. The development of the doctrine of strict liability facilitates the task of an injured worker—for if she can plausibly assert that the machine she used was defective, she may recover multiples of what she has recouped in workers’ compensation. The pressure exerted on products liability law by employers’ WC immunity is exacerbated by the fact, to be explored further in subsequent chapters, that employees who ...be able to recover from manufacturers if their misuse of a defective machine was “foreseeable...
- What if Corporation X sells assets (not shares) to Corporation Z? What if these assets include the production facilities for the product that had harmed Y? Here the same principles of corporate law dictate the opposite result: an acquirer of assets is not liable for injuries caused by products derived from these assets prior to the acquisition, unless of course he assumed such obligations contractually when he purchased the assets merger. The only significant exception to this rule is the case where the asset purchase is entered into fraudulently to escape legal obligations (as evidenced, for example, by underpayment of the market price for the assets, leaving the still-liable seller under-capitalized). Even if the corporation that acquires the assets uses them to produce the same product line, and benefits from the goodwill attached to the brand name, liability for units previously manufactured by the seller-corporation does not usually follow, ...number of states that adopt...
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Chapter 9. The Plaintiff’s Case: Causation 97 results (showing 5 best matches)
- to general causation principles in its discussion of proximate cause in products liability. This presumably refers to the
- Any injury has many causes in fact. What if one of those causes in fact is a product defect, which intervenes with other causes in fact (such as product misuse)? Should the rules of proximate causation determine cause in fact results in liability, or, as some have argued, should the advent of strict liability for products relax legal standards of causation?
- • In every state save Washington, Wisconsin, Michigan and New York, one may not sue all manufacturers of a generic product for an alleged design defect in the product that injured plaintiff. “Market share liability,” which allows plaintiffs to escape the obligation to prove that a products liability defendant actually produced the product that injured plaintiff, is generally not accepted.
- As mentioned above, liability does not result merely because plaintiff has proved that defendant’s product (as opposed to another product) caused her injury. Rather, it must be that a in the defendant’s product is what caused the injury. If an automobile has a defectively weak roof, but the victim was killed in the head-on collision before the vehicle rolled over, there is no cause in fact and no products liability.
- Similarly, in products liability cases, the plaintiff must produce evidence that it was defective product, not some other product that caused her injury. If the injury was not caused by defendant’s product, defendant is not liable even if its product was defective.
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Chapter 15. Alternative Approaches to Ensuring Product Safety 77 results (showing 5 best matches)
- [A] federal common law of products liability would maximize the problem of betting the store on whatever a particular United States Supreme Court ends up thinking. That problem can be further considered here. A state Supreme Court that decides a products liability case does so against the backdrop of all the other tort issues that belong to that court’s ongoing agenda. Yet were there a federal common law of products liability and that alone, the Supreme Court would be required ultimately to decide products liability issues in isolation from any larger understanding of tort law; therefore there would be an increased prospect of unjustified disharmonies or discontinuities between products liability doctrine and tort doctrine more generally. As far as products liability itself is concerned, the situation of the Supreme Court can be contrasted with that of federal courts of appeal. Those latter courts, on account of their diversity jurisdiction, have been considering large numbers of
- modifying and implementing a national “choice of law” rule would eliminate this dilemma while preserving state sovereignty over products liability. The idea is to allow consumers to choose among different states’ legal rules when they decide where to purchase their product. This would incorporate the soundness or ridiculousness of a state’s products liability rules into the prices of products sold. For Justice Neely’s free-riding strategy can succeed only if price increases in other states subsidize the cost of inefficient rulings in West Virginia. Currently, manufacturers cannot durably price products differently from state to state, as consumers would purchase their products in a low-liability state only to have the high-liability rules apply after an accident. Local judges and juries would not necessarily impose the costs of excessive products liability rules if they knew they and their neighbors would pay the full cost of those rules.
- about the content of “perfect” products liability legislation argues strongly against preemption by Congress. Endless and intricate calculations of utility functions, risk preferences, and philosophical outlooks of individuals would be needed to determine the correct allocation of the risks of products among manufacturers and consumers. There is no particular reason to believe in a “one-size-fits-all” solution across the nation. Moral views about liability and risk preferences may vary across individuals and regions. Diversity lessens the chance that there is one “correct” products liability rule.
- Retaining some form of products liability law does not require retaining its current iteration. As this author has pointed out elsewhere, the current structure of state-based products liability rules creates what is known in Game Theory as a “Prisoners’ Dilemma.” In lay terms, current law may lead many or all states to adopt rules that make all of us worse off.
- Lack of competition
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Chapter 3. Threshold Issues for Modern Products Liability 61 results (showing 5 best matches)
- Chapter 2 described how products liability law gradually (until 1964), then quickly (from 1964 through 1976) recognized that liability for injuries proximately caused by defective products was tort-based. This liability was deemed “strict” by the —distinguishing products liability law from the rest of tort, where liability requires wrongdoing.
- • Is real property a “product?”
- • Choice by some (disproportionately low-risk) consumers of some products (e.g., ladders, up to 25 percent of the price of which is apparently a “product liability insurance” premium ) to decline to purchase the product, and to possibly continue using their old (potentially more dangerous) product.
- These unanticipated side effects of products liability might be minimized if the following limitations of liability (perhaps implied by Justice Traynor) were enforced:
- of a product, and most of the price is for installation, not sale? Is the seller-installer still subject to strict liability? In a hospital was not held strictly liable for the installation of a defective implant, since the implant surgery was “principally a service” and only secondarily a sale. The manufacturer of the defective implant would of course be strictly liable, but though hospital “sold” the product it could only be liable if negligent, the court held. Why? If the hospital’s bill itemizes the cost of the implant, why isn’t this a sale? If the court’s answer is that it does not wish to needlessly increase the cost of medical care, does this constitute an admission that strict liability needlessly increases the cost of sold products?
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Preface 6 results (showing 5 best matches)
- Products liability remains one of the most controversial and confused area of American private law. It affects every American who purchases or uses any product, domestic or imported. Who hasn’t heard of the hot coffee burn case? Who hasn’t grown weary reading interminable warnings on seemingly simple products? Products liability is the object of late-night talk show jokes and politicians’ stump speeches.
- This hornbook reveals that, as is the case for many subjects discussed by politicians and TV stars, products liability is arguably more subtle and multi-layered than it appears. I hope here to “unpack” these subtleties, to allow the reader to understand current American products liability doctrine, and to permit him or her to participate intelligently in debates about proposed reforms. To facilitate this goal, the hornbook is chock full of summaries of theoretical positions as well as of advice for practitioners.
- The book has side benefits, too. By the time the reader has finished digesting it, she or he will have learned a lot about automobiles, about pharmaceuticals and about the hazards of Workers’ Compensation! A professional plug: I have always felt that the practical knowledge imparted by an understanding of products liability is a powerful fringe benefit of practicing this area of the law.
- , care has been taken to include and discuss hundreds of important cases, all the “classics” as well as lesser-known but illustrative cases applying the laws of all fifty states, the District of Columbia, and even Guam. In this way the book is meant to be useful to law students and to practitioners nationwide. , a recent Florida case has been extensively researched and is employed as a case study. This case is discussed in every chapter, allowing the reader to see how the disparate doctrinal points treated in each part of the book come together in the practical handling of a products liability case. The idea behind both of these innovations is to impart to the reader a feel for the depth of current debates and for the different approaches courts have towards them. , footnotes at the beginning of each chapter provide suggestions for further reading, for those interested in exploring the chapter’s themes at greater length.
- Several people deserve thanks for helping this project along, none more than my wife Cynthia Conner-Krauss, whose love and patience (not to mention legal editing skills!) are unmatched. Thanks also to Princeton University’s James Madison Program, whose generous offer of a sabbatical semester at that glorious institution made it possible for me to write the first edition of this book in an ideal setting. Four research assistants deserve thanks: Ms. Carroll Chancellor for providing valuable advice in organizing the material and in choosing the case study; Ms. Lindsey Champlin for excellent bluebooking and editing; and Mr Wesley Weeks and Ms. Samantha Rocci for assisting with the second edition. Last but not least, everlasting thanks are due to twenty-one years’ worth of products liability students at George Mason University School of Law, for posing the hard questions this Book tries to answer. My students educate their professor every day.
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Chapter 8. The Plaintiff’s Case: Strict Liability for Informational Defects 141 results (showing 5 best matches)
- This book has argued that manufacturing defects are best understood as cases of misrepresentation of a product by its seller, while design defects are possibly unintelligible absent negligence. Case law has created a third type of products liability, styled “failure to warn.” True to its focus on the concept of “defect” as foundational to products liability, this book uses “informational defect” to describe “failure to warn” liability.
- (a) One engaged in the business of selling or otherwise distributing products is subject to liability for harm to persons or property caused by the seller’s failure to provide a warning after the time of sale or distribution of a product
- ) OF T § 5 (1998). Liability Of Commercial Seller Or Distributor Of Product Components For Harm Caused By Products Into Which Components Are Integrated.
- The unusual regulatory régime for prescription drugs has had implications for products liability law. The § 402A, comment k, provides that ethical drugs, vaccines, and the like are exempt from design defect strict liability as “unavoidably unsafe products.” An unavoidably unsafe product will be shielded from strict liability under Comment k, despite its danger,
- One engaged in the business of selling or otherwise distributing product components is subject to liability for harm to persons or property caused by a product into which the component is integrated if:
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Chapter 10. The Defendant’s Case: Affirmative Defenses to Defectiveness Claims 232 results (showing 5 best matches)
- Suppose plaintiff has satisfied her burden of production in a products liability case. Whether the cause of action is styled as negligence, warranty or strict liability, plaintiff has produced evidence that a product was defective, that that defect rendered the product dangerous, and that that dangerously defective product injured her.
- , preemption has become a significant issue in numerous products liability cases. The question is whether the Supreme Court has now developed a coherent vision of preemption. A chronological synopsis of post- products liability preemption decisions follows:
- The focus of this section is the opposite state of affairs. Suppose that a product with validly enacted regulations governing design or warnings. May plaintiff, allegedly injured because the product didn’t contain even more warnings and/or an even more bulletproof design than required, nonetheless successfully sue in products liability?
- In addition to the time constraints entailed by the common law’s treatment of the defect requirement and by product deterioration, statutes of limitation and of repose affect a defendant’s liability for a product by the passage of time.
- In Chapter 6 it was noted that the potential moral hazard of products liability is minimized if liability is confined to cases where a defect is the cause of plaintiff’s injury. If a danger is obvious, allowing recovery may discourage due care by users, allowing the careless to “buy a lawsuit” by consciously using a dangerous product. This might in turn require that the price of the product incorporate an exorbitant “insurance premium.” In extreme cases, as we have seen, high premiums to subsidize risky users could price certain products out of existence because of “unraveling.” For example, chain saws would likely be priced out of existence if courts insisted that unguarded chains were defective, and allowed recovery every time a saw cuts through a careless user’s arm.
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Title Page 2 results
Chapter 13. Damages 117 results (showing 5 best matches)
- Since, allegedly, no “wrongdoing” need be committed for strict products liability to ensue, one might wonder whether “wrongful” death suits are even possible in products liability cases. But calculating compensation for persons other than the direct victim in products liability suits is problematic for a variety of reasons.
- But the explosion of punitive awards has been recent, and has followed the strict liability “revolution.” Until 1976, we found a grand total of reported appellate court decisions upholding punitive damages awards in product liability cases; in each case the punitive award was quite modest. Today punitive damages are awarded in approximately 3 percent of products liability judgments, and multi-million dollar punitive awards are common.
- It is sometimes difficult to know if the product has merely “injured itself” or caused other damage. When a defective tire blows up and destroys a car, a products liability suit for the car’s value should lie against the tire manufacturer. On the other hand, if a home loses value because one of its component parts (say, the concrete) is defective, the homeowner’s rights are traditionally determined by contract law, not products liability. One glaring exception concerns asbestos, where removal costs have been allowed on products liability (as opposed to contract) grounds even if there is no injury or damage to any other property, indeed (and intriguingly)
- Most issues relating to damages in products liability suits are common to other areas of tort. However, as product malfunction often leads to lifelong disabilities and death, it is worthwhile to briefly revisit these areas.
- Plaintiff had an artificial heart valve implanted. Her life improved thereafter, until she discovered that the valve had been recalled due to a 1 percent risk of fracture. It was determined that Khan should not have the removal-replacement surgery, since in her particular case the surgery itself would be riskier than leaving the suspect valve inside her body. Plaintiff sued in products liability, claiming that she experienced anxiety attacks about the valve failing at any moment, like a ticking time bomb in her body. For this anxiety she sought substantial compensation. But was the product inside her body even defective (triggering strict liability)? The California Court of Appeals held that she could not sue for products liability unless her
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Appendix A. The Simple Economics of Products Liability Law 42 results (showing 5 best matches)
- “Inefficient” design choices are therefore likely in a no-liability world as long as consumers underestimate the risks of products. This is a powerful consequential rationale for products liability law, whether negligence-based or grounded in strict liability. The choice between these two rules would then depend on how realistic the assumptions of the model are presumed to be.
- United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) (holding that liability depends on whether the burden of adequate precautions is less than the product of the probability that injury will occur and the seriousness of the resulting injury).
- As has been seen, if the manufacturer makes the correct design choice it is not negligent, and the costs of all remaining accidents are borne by the consumer. (Under a “no liability rule” this will occur for all accidents no matter what the design choice.) In other words, the cost of “residual” accidents is shifted to the manufacturer only under a strict liability rule. Non-shifted accident costs provide an incentive for the consumer not to misuse the product, even if there is no “consumer misuse” defense. Thus, a negligence rule provides incentives to both parties to take appropriate care, consumers are aware of (and rationally able to process) the dangers of misusing the product.
- THE SIMPLE ECONOMICS OF PRODUCTS LIABILITY LAW
- If manufacturers are liable every time a container shatters, all costs are borne by the manufacturer. Perfectly rational consumers in such a system will not have the incentive to use containers carefully, since care is always costly and only serves to benefit the manufacturer by reducing his liability costs. This is a “moral hazard” that will lead to “too many” accidents. Thus, to work efficiently, strict liability would have to be accompanied by a “contributory negligence” defense (which might also be called a “consumer misuse” defense). Only if this defense were available and perfectly applied (which would require that the manufacturer have access to reliable information about how the injured consumer used the product) would this “modified strict liability” rule be able to operate efficiently.
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Chapter 2. From Old to New: A Primer on the Rise of Products Liability 122 results (showing 5 best matches)
- As the Vitek® tragedy indicates, products liability is an important institution in modern, hyper-specialized, advanced societies replete with tools of which one would not have dreamt one generation earlier. Part of the huge increase in products liability suits, arguably, is a reflection not of “judicial activism” or “runaway juries,” but rather of the complexity of modern life.
- Is it “wrong” to profit from a product one has misrepresented? If so, then § 402A liability is not liability without wrongdoing, its claims to the contrary notwithstanding. The question is not merely semantic: it affects the way parties will approach product liability litigation. Consider the following case:
- The phenomena of moral hazard and adverse selection are “market failures” for insurance markets. But early products liability did not result in market failure, for it declined to impliedly bundle a general injury insurance policy with the sale of every product.
- Is liability for such misrepresentation “strict”? That is, is it liability without regard to fault? It is clearly liability for misrepresenting a product, whether or not the misrepresentation was . In other words, when representing a product as embodying certain characteristics, the warrantor is from invoking the innocence of her mistake if it turns out that her representation was both false and reasonably relied on. Buick did claim, “we think this car will run, we’ve checked it a bit, but we really don’t know for sure.” Rather, Buick marketed its car as being driveable. Its promise estopps Buick from subsequently denying responsibility for the direct consequences of its voluntary misrepresentation, since it invited and profited from reliance on it.
- Mr. and Mrs. Pulley sued Lucky Stores and Pacific Coca-Cola Bottling Co., on a theory of breach of an implied warranty of fitness for human consumption (as Washington’s strict products liability was then known). The bottler’s interests were clearly divergent from the retailer’s—for if the bottler could establish that the bottle left its premises properly sealed cigarette, they would not have misrepresented the product they sold to Lucky Stores. In that case, only the retailer would be in breach of “implied warranty.”
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Chapter 7. The Plaintiff’s Case: Strict Liability for Design Defects 149 results (showing 5 best matches)
- (b) If proof supports a determination of the harm that would have resulted from other causes in the absence of the product defect, the product seller’s liability is limited to the increased harm attributable solely to the product defect.
- Therein lies the rub. The simple fact that a person sustains injury while using a product has never been sufficient grounds for products liability. 35,900 Americans were killed in automobile crashes in 2009, and the great majority of these deaths would have been prevented had the victims been seated in a perfectly cushioned (and extraordinarily expensive) vehicle. But very few of these victims’ survivors have a good products liability case against the manufacturer of the automobile in which they were killed. Under both versions of the , being injured (or even killed) is not grounds for liability. Rather, one must be injured or killed
- • General Motors and Chrysler each declared bankruptcy in 2009. Chrysler took advantage of its bankruptcy proceeding to discharge all products liability claims for cars manufactured pre-bankruptcy. This meant that existing products liability claims, along with any future claims for Chrysler vehicles purchased before the bankruptcy, would become unsecured debts, leaving plaintiffs with a limited likelihood of recovering anything from the firm known as the “new Chrysler.” Consumers who purchased Chrysler vehicles before June 10, 2009, and who in the future want to allege that their car suffers from a design or manufacturing defect, would have almost no chance of recovering for injuries. In the GM bankruptcy, the original plan was to do the same, but in this case objections lodged by consumer groups and state attorneys general were voiced. GM (mostly owned by the federal government) then reversed course and agreed to allow the “new GM” to be subject to products liability claims for...
- As this chapter has shown, minimizing design defect liability requires legal dexterity. It also requires close collaboration between engineering and legal departments of manufacturing firms. Engineers are acutely aware of design tradeoffs, while lawyers well-read in products liability law will be well placed to understand the legal ramifications of these trade-offs.
- One argument for the consumers’ expectation test is that it seems to reflect precisely the theme of misrepresentation that this book presents as a normative grounding for products liability. Simply put, if consumers reasonably expect a certain level of safety from their product, and if the manufacturer does not disabuse them of this notion (for example, by warning them of a non-obvious dangerous design characteristic), then the product that harmed them has in a significant way been misrepresented.
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Chapter 12. The Defendant’s Case: Other Affirmative Defenses 95 results (showing 5 best matches)
- A commercial seller or other distributor of a new product is not permitted to avoid liability for harm to persons through limiting terms in a contract governing the sale of a product. It is presumed that the ordinary product user or consumer lacks sufficient information and bargaining power to execute a fair contractual limitation of rights to recover….
- ) OF T § 18 (1998) (“Disclaimers and limitations of remedies by product sellers or other distributors, waivers by product purchasers and other similar contractual exculpations, oral or written, do not bar or reduce otherwise valid products liability claims against sellers or other distributors of new products for harm to persons.”). Emphasis added.
- A large number (perhaps the majority) of cases cited in this Book involve injuries to workers whose only suit lies against the manufacturer and the resellers of products implicated in their injury. It is clear that the fact that these workers are paid to do their jobs does not preclude them from launching products liability suits.
- Thus far we have examined defenses based on the plaintiff’s misbehavior, the product’s inherent danger and the government’s approval of the product. In this chapter we discuss defendant’s efforts to shift liability
- Fundamental to the “products liability revolution” has been the judicial refusal (from onwards) to enforce contractual limitations on the “implied warranty of merchantability,” at least when these limitations are incompatible with an express warranty or with the implied representation that a product is not defective. However, there are occasions, especially when used products are sold, when both parties find it advantageous for the consumer to assume the risk of defect in the contract of sale or rental. Often such risks are assumed in a clause wherein the consumer waives the right to sue.
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Table of Contents 88 results (showing 5 best matches)
Cover Page Part 2 67 results (showing 5 best matches)
Advisory Board 9 results (showing 5 best matches)
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Professor of Law and Dean Emeritus, University of California, Berkeley
- Professor of Law, Michael E. Moritz College of Law,
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Dedication 1 result
- To my beloved wife Cynthia (Vice-President, American Health Lawyers’ Association), my daughter Rebecca (former Judicial Clerk to the United States Court of Appeals and the United States Supreme Court), and my son Joshua (Capt., U.S.M.C.): three ardent defenders of our safety and of the Rule of Law.
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Chapter 1. Julian Felipe’s Case 8 results (showing 5 best matches)
- About 80 miles from their destination, the van’s right front tire exploded. It is unclear why the tire blew, how old the tire was, what brand the tire was, who sold it, how often Mrs. Felipe checked the air pressure in the tire, or whether there had been any forewarning of a blowout. Also unknown is the speed of the Aerostar at the moment of the blowout.
- Mrs. Felipe lost control of her van after the blowout. She jerked the steering wheel, and the Aerostar rolled over onto the right
- WHAT KIND OF LEGAL CLAIM DO YOU BELIEVE THE
- WHAT KIND OF DEFENSE DO YOU THINK YOU WOULD YOU MOUNT
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Copyright Page 3 results
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- West, West Academic Publishing, and West Academic are trademarks of West Publishing Corporation, used under license.
- Printed in the United States of America
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- Publication Date: January 30th, 2014
- ISBN: 9780314289339
- Subject: Products Liability
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
Products liability is the object of late-night talk show jokes and politician's stump speeches. Yet, like many subjects discussed by politicians and TV stars, products liability is more subtle and multi-layered than it’s made to appear.
Krauss’ Principles of Products Liability, 2d is designed to ‘‘unpack’’ these subtleties and to allow the reader to understand current American products liability doctrine, and to intelligently participate in debates about proposed reforms. The book is chock full of summaries of theoretical positions, as well as advice for practitioners. It incorporates all the recent case law, through the 2013 term of the United States Supreme Court.
By the time the reader has finished this book, she or he will understand a lot about automobiles, pharmaceuticals and workplace technology! Indeed, the practical knowledge imparted by an understanding of products liability is a powerful fringe benefit of practicing this area of the law.