| |
| |
| Preface | |
| |
| |
| Introduction | |
| |
| |
| History and Basic Structure of Products Liability Law | |
| |
| |
| Julian Felipe's Case | |
| |
| |
| From Old to New: A Primer on the Rise of Products Liability | |
| |
| |
| Introduction | |
| |
| |
| Seminal Early Cases | |
| |
| |
| Winterbottom v. Wright | |
| |
| |
| Thomas v. Winchester | |
| |
| |
| MacPherson v. Buick | |
| |
| |
| Eliminating Privity: From Implied Warranty to Strict Liability | |
| |
| |
| Implied Warranty and Tort Liability | |
| |
| |
| The Road to Strict Liability | |
| |
| |
| How "Strict" Is Strict Liability? | |
| |
| |
| Threshold Issues for Modern Products Liability | |
| |
| |
| What Is the "Sale of a Product?" | |
| |
| |
| Safety v. Insurance: Justice Traynor's Reasons for Enacting Strict Liability | |
| |
| |
| "Non-Strict" Theories of Products Liability | |
| |
| |
| Negligence | |
| |
| |
| Salient Characteristics of a Negligence Suit | |
| |
| |
| Tortious Misrepresentation | |
| |
| |
| Types of Misrepresentation Suites | |
| |
| |
| Breach of Warranty | |
| |
| |
| Express Warranty | |
| |
| |
| Implied Warranty of Merchantability | |
| |
| |
| Implied Warranty of Fitness for a Particular Purpose | |
| |
| |
| Analysis of Products Liability Law | |
| |
| |
| "Strict" Liability: Who May Sue Whom? | |
| |
| |
| Who is Strictly Liable? | |
| |
| |
| Component Manufacturers | |
| |
| |
| Downstream Sellers | |
| |
| |
| Service Providers | |
| |
| |
| Owners of Subsidiaries; Successor Corporations | |
| |
| |
| Lessors | |
| |
| |
| Franchisors and Trademark Licensors | |
| |
| |
| Sellers of Used Products | |
| |
| |
| Certifiers and Endorsers | |
| |
| |
| Workplace Accidents and Products Liability | |
| |
| |
| Who Can Sue? | |
| |
| |
| The Plaintiff's Case: Strict Liability for Manufacturing Defects | |
| |
| |
| Introduction | |
| |
| |
| Negligence or Strict Liability? | |
| |
| |
| Breakdowns v. Defects v. Negligence | |
| |
| |
| Why Must the Defective Product Be "Unreasonably Dangerous?" | |
| |
| |
| Special Case: Food and Drink and the "Foreign-Natural" Debate | |
| |
| |
| The Plaintiff's Case: Strict Liability for Design Defects | |
| |
| |
| Introduction | |
| |
| |
| Tests for Design Defect | |
| |
| |
| Negligence | |
| |
| |
| The Consumer Expectations Test | |
| |
| |
| The Risk-Utility Test | |
| |
| |
| Two-Pronged Standards | |
| |
| |
| The Restatement (Third)'s Design Defect Test | |
| |
| |
| Proof of Design Defect | |
| |
| |
| Special Case: Automobiles | |
| |
| |
| The Plaintiff's Case: Strict Liability for Informational Defects | |
| |
| |
| Introduction | |
| |
| |
| Negligence or Strict Liability? | |
| |
| |
| The Never-Before-Seen, Yet Conceivable Risk | |
| |
| |
| The Warned-Of but Allegedly Underemphasized Risk | |
| |
| |
| Obvious but Infinitesimal Risks | |
| |
| |
| The How, Who and When of Warnings | |
| |
| |
| How | |
| |
| |
| Who | |
| |
| |
| The How, Who and When of Warnings-Continued | |
| |
| |
| When | |
| |
| |
| Special Case: Prescription Drugs | |
| |
| |
| General Principles | |
| |
| |
| The Impact of Mass Marketing of Prescription Drugs | |
| |
| |
| National Childhood Vaccine Injury Act ("NCVIA") | |
| |
| |
| The Plaintiff's Case: Causation | |
| |
| |
| Introduction | |
| |
| |
| Cause in Fact (Necessary Condition) | |
| |
| |
| Whodunit? | |
| |
| |
| Why did it Happen? | |
| |
| |
| When did the Defect get Introduced? | |
| |
| |
| "Substantial Factor" Cause-in-fact | |
| |
| |
| Proximate Causation | |
| |
| |
| Introduction | |
| |
| |
| Product Danger X, Harm Y | |
| |
| |
| Superseding ("Intervening") Causes | |
| |
| |
| The Defendant's Case: Affirmative Defenses to Defectiveness Claims | |
| |
| |
| Introduction | |
| |
| |
| The Injured User (or Her Employer) Chose to Use the Product in a Dangerous Way | |
| |
| |
| The Product Was Misused | |
| |
| |
| The Product Was Obviously Dangerous | |
| |
| |
| The Product Was Inherently Dangerous | |
| |
| |
| The Product Was Altered | |
| |
| |
| The Product Was "Made to Order" | |
| |
| |
| Too Much Time Has Passed to Hold Defendant Liable | |
| |
| |
| The Product's Useful Life had Expired | |
| |
| |
| The Harm was Intergenerational (Not Caused to the User) | |
| |
| |
| The Legislature has said it's too Late to Sue | |
| |
| |
| "State of the Art" Defense (The Product was as Safe as it could be) | |
| |
| |
| General Comments | |
| |
| |
| "State of the Art" and Informational Defects | |
| |
| |
| "State of the Art" and Design Defect | |
| |
| |
| "State of the Art" and Post-Sale Duties | |
| |
| |
| Regulatory Preemption Defense (The Product Was as Safe as the Government Said it had to be) | |
| |
| |
| The Problem | |
| |
| |
| The Supreme Court's "Solution" | |
| |
| |
| The Standards Defense (Our Product was as Safe as Our Competitors' Product) | |
| |
| |
| The Defendant's Case: Causation and Other Peoples' Behavior | |
| |
| |
| Introduction | |
| |
| |
| Contributory Negligence | |
| |
| |
| Comparative Negligence | |
| |
| |
| General Remarks | |
| |
| |
| Complicating Factor: Multiple Defendants | |
| |
| |
| Assumption of Risk | |
| |
| |
| "Last Clear Chance" | |
| |
| |
| The Defendant's Case: Other Affirmative Defenses | |
| |
| |
| "I Made It, But Someone Else Designed it." | |
| |
| |
| Contracts Specification Defense | |
| |
| |
| Government Contractor Defense | |
| |
| |
| "It Wouldn't have made a Differences if I had Warned you." | |
| |
| |
| Plaintiff did not Read the (Allegedly Inadequate) Warning that was Given, and therefore would not have Read the Warning she Claims should have been given | |
| |
| |
| A Third Party Warned the Victim, So the Lack of Warning on the Product was of no Consequence | |
| |
| |
| A Learned Intermediary Knew of the Risk, Despite the Lack of Warning, and the Intermediary Failed to Warn the Victim; or the Intermediary Ignored the Inadequate Warning and would have Ignored an Adequate One | |
| |
| |
| The Circumstances of the Injury make it Virtually Impossible that a Warning, had it been given, would have been Heeded | |
| |
| |
| "We Agreed I wouldn't be Liable for this." | |
| |
| |
| "You're Paid to Face these Dangers." | |
| |
| |
| Damages | |
| |
| |
| Introduction: Additional Facts About Julian Felipe's Case | |
| |
| |
| Compensatory Damages for Personal Injury and Death | |
| |
| |
| Wage Loss | |
| |
| |
| Pain and Suffering | |
| |
| |
| Fear of Future Injury and Medical Monitoring | |
| |
| |
| Wrongful death | |
| |
| |
| Other Compensatory Damages | |
| |
| |
| Economic Damage to Tangible Property (Other than to the Product Itself) | |
| |
| |
| "Pure" Economic Loss | |
| |
| |
| Other Compensatory Damages-Continued | |
| |
| |
| Additional Compensatory Damages in Case of Alleged Fraud | |
| |
| |
| Punitive Damages | |
| |
| |
| Special Situations and Proposed Alternatives to Products Liability Law | |
| |
| |
| Special Types of Product Litigation: Toxic Substances and Class Actions | |
| |
| |
| Introduction | |
| |
| |
| Judicial Administration of Toxic Products Cases | |
| |
| |
| Causation Problems in Toxic Products Cases | |
| |
| |
| Plaintiff's Behavior as a Contributing Cause to Toxic Products Liability | |
| |
| |
| Damages Issues in Toxic Products Claims | |
| |
| |
| Potential but Unrealized Disease | |
| |
| |
| Property Damage and Loss of Profits | |
| |
| |
| Punitive Damages | |
| |
| |
| Alternative Approaches to Ensuring Product Safety | |
| |
| |
| Introduction | |
| |
| |
| Replacing Products Liability with Contract | |
| |
| |
| Libertarian Abolition of Products Liability | |
| |
| |
| Free Choice of State Law | |
| |
| |
| Replacing State Products Liability Law with a National Law | |
| |
| |
| Federal Legislation | |
| |
| |
| Uniform State Laws of Product Liability | |
| |
| |
| Federal Common Law | |
| |
| |
| International Approaches to Products Liability Law | |
| |
| |
| Replacing Products Liability with Social Insurance | |
| |
| |
| Table of Cases | |
| |
| |
| Index | |