Owen, Mongomery and Keeton's Case and Statutory Supplement to Product Liability and Safety 2001 : Cases and Materials

by Davis, Mary; Owen, David

• ISBN13: 9781587781964
• ISBN10: 1587781964
• Edition: 3rd
• Format: Paperback
• Copyright: 2001-11-01
• Publisher: West Information Pub Group

Table of Contents

Preface	iii
Acknowledgments	v
Table of Cases	xxi
Cases and Notes	1	(1)
PART I. Theories of Manufacturer Liability	1	(14)
Tortious Misrepresentation	2	(1)
Strict Liability for Misrepresentation	2	(1)
Warranty	3	(1)
Implied Warranty of Merchantability	3	(1)
Strict Liability in Tort	4	(11)
Development	4	(11)
Denny v. Ford Motor Co.	4	(11)
PART II. The Concept of Defectiveness	15	(80)
Tests of Defectiveness	16	(1)
Consumer Expectations	16	(1)
Tests of Defectiveness	17	(9)
Consumer Expectations	17	(1)
Alternative Tests of Defect	18	(8)
Potter v. Chicago Pneumatic Tool Company	18	(8)
Types of Defect	26	(8)
Defective Manufacture	26	(1)
Defective Design	26	(5)
Defective Marketing: Warnings & Instructions	31	(3)
Regulating Defectiveness	34	(38)
Direct Agency Regulation	34	(4)
The Effect of Regulation on Private Litigation	38	(34)
Medtronic Inc. v. Lohr	39	(16)
Notes	55	(1)
Geier v. American Honda Motor Company	56	(15)
Note	71	(1)
Limiting Defectiveness: User Choice	72	(4)
Obvious Dangers	72	(1)
Generic Risks: Product Category Liability	73	(2)
Misuse	75	(1)
Limiting Defectiveness: Passage of Time	76	(19)
Disposal and Destruction	76	(1)
State of the Art	76	(16)
Freeman v. Hoffman-LaRoche, Inc.	76	(8)
Sternhagen v. Dow Company	84	(8)
Post-Sale Duties	92	(1)
Statutory Repose	92	(3)
PART III. CAUSATION	95	(4)
Proximate Cause	96	(3)
Duty and Foreseeability Limitations on Liability	96	(1)
Intervening Causes	97	(2)
PART IV. Defenses and Damages	99	(4)
Damages	100	(3)
Personal Injury and Death	100	(1)
Emotional Distress	100	(1)
Economic Loss and Property Damage	100	(2)
Punitive Damages	102	(1)
PART V. Special Types of Defendants, Products, and Transactions	103	(6)
Special Types of Defendants	104	(3)
Component Part Manufacturers and Assemblers	104	(1)
Successor Corporations	105	(1)
Allocating Responsibility and Loss: Contribution and Indemnity	105	(2)
Special Types of Products and Transactions	107	(2)
Miscellaneous ``Products''	107	(2)
PART VI. Special Types of Litigation	109	(58)
Automotive Litigation	110	(1)
Crashworthiness	110	(1)
Geier v. American Honda Motor Company	110	(1)
Special Issues in Toxic Substance Litigation	111	(56)
Judicial Administration	111	(36)
Castano v. American Tobacco Co.	111	(14)
Notes	125	(1)
Texas v. American Tobacco Company	126	(8)
Amchem Products, Inc. v. Windsor	134	(12)
Notes	146	(1)
Class Actions: Management	147	(16)
Cimino v. Raymark Industries, Inc.	147	(16)
Causation	163	(4)
RESTATEMENT (SECOND) OF TORTS (APPROVED BY THE ALL, 1963 AND 1964) SELECTED SECTIONS	167	(30)
Liability of Persons Supplying Chattels for the Use of Others	167	(30)
Chattel Known to Be Dangerous for Intended Use	168	(8)
Negligent Manufacture of Chattel Dangerous Unless Carefully Made	176	(5)
Chattel Made Under Dangerous Plan or Design	181	(1)
Selling as Own Product Chattel Made by Another	182	(2)
Special Liability of Seller of Product for Physical Harm to User or Consumer	184	(8)
Misrepresentation by Seller of Chattels to Consumer	192	(5)
RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY (APPROVED BY THE ALL, 1997) SELECTED SECTIONS	197	(83)
Liability of Commercial Seller or Distributor for Harm Caused by Defective Products	201	(39)
Categories of Product Defect	205	(18)
Circumstantial Evidence Supporting Inference of Product Defect	223	(3)
Noncompliance and Compliance with Product Safety Statutes or Regulations	226	(1)
Liability of Commercial Seller or Distributor of Product Components for Harm Caused by Products Into Which Components Are Integrated	227	(6)
Liability of Commercial Seller or Distributor for Harm Caused by Defective Prescription Drugs and Medical Devices	233	(5)
Liability of Commercial Seller or Distributor for Harm Caused by Defective Food Products	238	(1)
Liability of Commercial Seller or Distributor of Defective Used Products	239	(1)
Liability of Commercial Product Sellers Not Based on Product Defects at Time of Sale	240	(9)
Liability of Commercial Product Seller or Distributor for Harm Caused by Misrepresentation	240	(1)
Liability of Commercial Product Seller or Distributor for Harm Caused by Post-Sale Failure to Warn	240	(5)
Liability of Commercial Product Seller or Distributor for Harm Caused by Post-Sale Failure to Recall Product	245	(4)
Liability of Successors and Apparent Manufacturers	249	(10)
Liability of Successor for Harm Caused by Defective Products Sold Commercially by Predecessor	249	(7)
Liability of Successor for Harm Caused by Successor's Own Post-Sale Failure to Warn	256	(2)
Selling or Distributing as One's Own a Product Manufactured by Another	258	(1)
Provisions of General Applicability	259	(21)
General Rule Governing Causal Connection Between Product Defect and Harm	259	(2)
Increased Harm Due to Product Defect	261	(6)
Apportionment of Responsibility Between or Among Plaintiff, Sellers and Distributors of Defective Products, and Others	267	(2)
Disclaimers, Limitations, Waivers, and Other Contractual Exculpations as Defenses to Products Liability Claims for Harm to Persons	269	(1)
Definition of ``Product''	270	(4)
Definition of ``One Who Sells or Otherwise Distributes''	274	(3)
Definition of ``Harm to Persons or Property'': Recovery for Economic Loss	277	(3)
UNIFORM COMMERCIAL CODE SELECTED SECTIONS	280	(3)
ARTICLE 1 GENERAL PROVISIONS	283	(10)
Short Title	283	(1)
Purposes; Rules of Construction; Variation by Agreement	283	(1)
Supplementary General Principles of Law Applicable	284	(1)
Construction Against Implicit Repeal	284	(1)
Territorial Application of the Act; Parties' Power to Choose Applicable Law	284	(2)
Remedies to Be Liberally Administered	286	(1)
Waiver or Renunciation of Claim or Right After Breach	286	(1)
General Definitions	287	(3)
Obligation of Good Faith	290	(1)
Time; Reasonable Time; ``Seasonably''	290	(1)
Course of Dealing and Usage of Trade	291	(2)
ARTICLE 2 SALES	293	(45)
Short Title	293	(1)
Definitions and Index of Definitions	294	(1)
Definitions: ``Merchant''; ``Between Merchants'', ``Financing Agency''	294	(1)
Definitions: Transferability; ``Goods''; ``Future'' Goods; ``Lot''; ``Commercial Unit''	295	(1)
Definitions: ``Contract''; ``Agreement''; ``Contract for Sale''; ``Sale''; ``Present Sale''; ``Conforming'' to Contract; ``Termination''; ``Cancellation''	296	(1)
Formal Requirements; Statute of Frauds	297	(2)
Final Written Expression: Parol or Extrinsic Evidence	299	(1)
Formation in General	300	(1)
Offer and Acceptance in Formation of Contract	301	(1)
Additional Terms in Acceptance or Confirmation	301	(1)
Course of Performance or Practical Construction	301	(1)
Modification, Rescission and Waiver	302	(2)
General Obligations of Parties	304	(1)
Unconscionable Contract or Clause	304	(2)
Allocation or Division of Risks	306	(1)
Express Warranties by Affirmation, Promise, Description, Sample	306	(2)
Implied Warranty: Merchantability; Usage of Trade	308	(3)
Implied Warranty: Fitness for Particular Purpose	311	(1)
Exclusion or Modification of Warranties	312	(3)
Cumulation and Conflict of Warranties Express or Implied	315	(1)
Third Party Beneficiaries of Warranties Express or Implied	316	(1)
Manner of Seller's Tender of Delivery	317	(1)
Effect of Seller's Tender; Delivery on Condition	318	(1)
Cure by Seller of Improper Tender or Delivery; Replacement	318	(1)
Preserving Evidence of Goods in Dispute	319	(2)
Buyer's Rights on Improper Delivery	321	(1)
Manner and Effect of Rightful Rejection	322	(1)
Waiver of Buyer's Objections by Failure to Particularize	323	(1)
What Constitutes Acceptance of Goods	323	(1)
Effect of Acceptance; Notice of Breach; Burden of Establishing Breach After Acceptance; Notice of Claim or Litigation to Person Answerable Over	324	(3)
Revocation of Acceptance in Whole or in Part	327	(1)
Buyer's Remedies in General; Buyer's Security Interest in Rejected Goods	328	(2)
Buyer's Damages for Breach in Regard to Accepted Goods	330	(1)
Buyer's Incidental and Consequential Damages	330	(2)
Buyer's Right to Specific Performance or Replevin	332	(1)
Deduction of Damages From the Price	333	(1)
Liquidation or Limitation of Damages; Deposits	333	(1)
Contractual Modification or Limitation of Remedy	334	(1)
Effect of ``Cancellation'' or ``Rescission'' on Claims for Antecedent Breach	335	(1)
Remedies for Fraud	336	(1)
Statute of Limitations in Contracts for Sale	336	(2)
PRODUCTS LIABILITY STATUTES SELECTED STATES	338	(110)
CONSUMER PRODUCT SAFETY ACT SELECTED SECTIONS	448	(64)
Congressional findings and declaration of purpose	451	(1)
Definitions	452	(2)
Consumer Product Safety Commission	454	(4)
Establishment; Chairman	454	(1)
Term; vacancies	455	(1)
Restrictions on Commissioners' outside activities	455	(1)
Quorum; seal; Vice Chairman	455	(1)
Offices	456	(1)
Functions of Chairman	456	(1)
Executive Director; officers and employees	456	(1)
Civil action against the United States	457	(1)
Agenda; establishment and comments	458	(1)
Product safety information and research	458	(1)
Injury Information Clearinghouse; duties	458	(1)
Research, investigation and testing of consumer products	459	(1)
Grants and contracts for conduct of functions	459	(1)
Availability to public of information	459	(1)
2055. Public disclosure of information	459	(5)
Disclosure requirements for manufacturers or private labelers; procedures applicable	459	(2)
Additional disclosure requirements for manufacturers or private labelers; procedures applicable	461	(2)
Communications with manufacturers	463	(1)
Definition; coverage	463	(1)
Disclosure of information	463	(1)
Consumer product safety standards	464	(1)
Types of requirements	464	(1)
Reliance of Commission upon voluntary standards	465	(1)
Contribution of Commission to development cost	465	(1)
Banned hazardous products	465	(1)
Procedure for consumer product safety rules	466	(6)
Commencement of proceeding; publication of prescribed notice of proposed rulemaking; transmittal of notice	466	(1)
Voluntary standard; publication as proposed rule; notice of reliance of Commission on standard	467	(1)
Publication of proposed rule; preliminary regulatory analysis; contents; transmittal of notice	467	(1)
Promulgation of rule; time	468	(1)
Expression of risk of injury; consideration of available product data; needs of elderly and handicapped	469	(1)
Findings; final regulatory analysis; judicial review of rule	469	(2)
Effective date of rule or standard; stockpiling of product	471	(1)
Amendment or revocation of rule	471	(1)
Petition to initiate rulemaking	472	(1)
Judicial review of consumer product safety rules	472	(2)
Petition by persons adversely affected, consumers, or consumer organizations	472	(1)
Additional data, views, or arguments	472	(1)
Jurisdiction; costs and attorneys' fees; substantial evidence to support administrative findings	473	(1)
Supreme Court review	473	(1)
Availability of other remedies	473	(1)
Computation of reasonable fee for attorney	473	(1)
Imminent hazards	474	(1)
Filing of action	474	(1)
Relief; product condemnation and seizure	474	(1)
Consumer product safety rule	474	(1)
Jurisdiction and venue; process; subpoena	475	(1)
Employment of attorneys by Commission	475	(1)
Consideration of cost of compliance	475	(1)
Product certification and labeling	475	(1)
Substantial product hazards	476	(4)
Definition	476	(1)
Noncompliance with applicable consumer product safety rules; product defects; notice to Commission by manufacturer, distributor, or retailer	477	(1)
Public notice of defect or failure to comply; mail notice	477	(1)
Repair; replacement; refunds; action plan	477	(1)
Reimbursement	478	(1)
Hearing	479	(1)
Preliminary injunction	479	(1)
Consideration of cost of notification	480	(1)
Inspection and recordkeeping	480	(1)
Imported products	481	(2)
Refusal of admission	481	(1)
Samples	481	(1)
Modification	481	(1)
Supervision of modifications	482	(1)
Product destruction	482	(1)
Payment of expenses occasioned by refusal of admission	482	(1)
Importation conditioned upon manufacturer's compliance	482	(1)
Product surveillance program	483	(1)
Exemption of exports	483	(1)
Risk of injury to consumers within United States	483	(1)
Statement of exportation: filing period, information; notification of foreign country; petition for minimum filing period: good cause	483	(1)
Prohibited acts	484	(1)
Civil penalties	485	(2)
Amount of penalty	485	(1)
Relevant factors in assessment of penalty	486	(1)
Compromise of penalty; deductions from penalty	486	(1)
``Knowingly'' defined	487	(1)
Criminal penalties	487	(1)
Injunctive enforcement and seizure	487	(1)
Suits for damages	488	(1)
Persons injured; costs; amount in controversy	488	(1)
Denial and imposition of costs	489	(1)
Remedies available	489	(1)
Private enforcement	489	(1)
Private remedies	489	(1)
Liability at common law or under State statute not relieved by compliance	489	(1)
Evidence of Commission's inaction inadmissible in actions relating to consumer products	490	(1)
Public information	490	(1)
State standards	490	(1)
State compliance to Federal standards	490	(1)
Consumer product safety requirements which impose performance standards more stringent than Federal standards	490	(1)
Exemptions	491	(1)
Additional functions of Consumer Product Safety Commission	491	(5)
Authority to conduct hearings or other inquiries	491	(1)
Commission powers; orders	491	(2)
Noncompliance with subpoena or Commission order; contempt	493	(1)
Disclosure of information	493	(1)
Performance and technical data	493	(1)
Purchase of consumer products by Commission	493	(1)
Contract authority	493	(1)
Research, development, and testing facilities	493	(1)
Recordkeeping; audit	494	(1)
Report to President and Congress	494	(1)
Budget estimates and requests; legislative recommendations; testimony; comments on legislation	495	(1)
Report on civil penalties	496	(1)
Chronic Hazard Advisory Panels	496	(2)
Appointment; purposes	496	(1)
Composition; membership	496	(1)
Chairman and Vice Chairman; election; term	497	(1)
Majority vote	497	(1)
Administrative support services	497	(1)
Compensation	497	(1)
Requests for and disclosures of information	497	(1)
Information from other Federal departments and agencies	497	(1)
Cooperation with States and other Federal agencies	498	(1)
Transfers of functions	499	(2)
Hazardous substances and poisons	499	(1)
Flammable fabrics	499	(1)
Household refrigerators	499	(1)
Regulation by Commission of consumer products in accordance with other provisions of law	499	(1)
Transfer of personnel, property, records, etc.; continued application of orders, rules, etc.	500	(1)
Definition of ``function''	501	(1)
Limitations on Jurisdiction of Consumer Product Safety Commission	501	(2)
Authority to regulate	501	(1)
Certain notices of proposed rulemaking; duties of Chronic Hazard Advisory Panel	502	(1)
Panel report; incorporation into advance notice and final rule	503	(1)
Authorization of appropriations	503	(1)
Interim cellulose insulation safety standard	504	(4)
Applicability of specification of General Services Administration; authority and effect of interim standard; modifications; criteria; labeling requirements -	504	(1)
Scope of judicial review	505	(1)
Enforcement; violations; promulgation of final standard; procedures applicable to promulgation; revision of interim standard; procedures applicable to revision	505	(2)
Reporting requirements of other Federal departments, agencies, etc. of violations	507	(1)
Reporting requirements of Commission to Congressional committees; contents, time of submission, etc.	507	(1)
Compliance with certification requirements; implementation; waiver; rules and regulations	508	(1)
Authorization of appropriations	508	(1)
Congressional veto of consumer product safety rules	508	(2)
Transmission to Congress	509	(1)
Disapproval by concurrent resolution	509	(1)
Presumptions from Congressional action or inaction	509	(1)
Continuous session of Congress	509	(1)
Information reporting	510	(2)
Notification of settlements or judgments	510	(1)
Calculation of the 24 month period	510	(1)
Information required to be reported	510	(1)
Report not deemed an admission of liability	511	(1)
Definitions	511	(1)
MAGNUSON-MOSS WARRANTY ACT	512	(15)
Definitions	513	(2)
Rules governing contents of warranties	515	(2)
Full and conspicuous disclosure of terms and conditions; additional requirements for contents	515	(1)
Availability of terms to consumer; manner and form for presentation and display of information; duration, extension of period for written warranty or service contract	516	(1)
Prohibition on conditions for written or implied warranty waiver by Commission	516	(1)
Incorporation by reference of detailed substantive warranty Provisions	517	(1)
Applicability to consumer products costing more than $5.00	517	(1)
Designation of written warranties	517	(1)
Full (statement of duration) or limited warranty	517	(1)
Applicability of requirements, standards, etc., to representations or statements of customer satisfaction	517	(1)
Exemptions by Commission	518	(1)
Applicability to consumer products costing more than $10.00 and not designated as full warranties	518	(1)
Federal minimum standards for warranties	518	(2)
Remedies under written warranty; duration of implied warranty; exclusion or limitation on consequential damages for breach of written or implied warranty; election of refund or replacement	518	(1)
Duties and conditions imposed on consumer by warrantor	519	(1)
Waiver of standards	519	(1)
Remedy without charge	519	(1)
Incorporation of standards to products designated with full warranty for purposes of judicial actions	520	(1)
Full and limited warranting of a consumer product	520	(1)
Service contracts; rules for full, clear and conspicuous disclosure of terms and conditions; addition to or in lieu of written warranty	520	(1)
Designation of representatives by warrantor to perform duties under written or implied warranty	520	(1)
Implied warranties	521	(1)
Restrictions on disclaimers or modifications	521	(1)
Limitation on duration	521	(1)
Effectiveness of disclaimers, modifications, or limitations	521	(1)
Procedures applicable to promulgation of rules by Commission; rulemaking proceeding for warranty and warranty practices involved in sale of used motor vehicles	521	(1)
Remedies in consumer disputes	522	(3)
Informal dispute settlement procedures; establishment; rules setting forth minimum requirements; effect of compliance by warrantor; review of informal procedures or implementation by Commission; application to existing informal procedures	522	(1)
Prohibited acts	523	(1)
Injunction proceedings by Attorney General or Commission for deceptive warranty, noncompliance with requirements, or violating prohibitions; procedures; definitions	523	(1)
Civil action by consumer for damages, etc.; jurisdiction; recovery of costs and expenses; cognizable claims	524	(1)
Class actions; conditions; procedures applicable	524	(1)
Warrantors subject to enforcement of remedies	525	(1)
Applicability of provisions to other Federal or State laws and requirements	525	(1)
Effective dates; time for promulgation of rules by Commission	526	(1)
MODEL UNIFORM PRODUCT LIABILITY ACT	527	(94)
Short Title	533	(1)
Short Title	533	(1)
Findings	533	(1)
Findings	534	(1)
Definitions	535	(2)
Definitions	537	(6)
Scope of This Act	543	(1)
Scope of This Act	543	(1)
Basic Standards of Responsibility for Manufacturers	544	(3)
Basic Standards of Responsibility for Manufacturers	547	(10)
Basic Standards of Responsibility for Product Sellers Other Than Manufacturers	557	(1)
Basic Standards of Responsibility for Product Sellers Other Than Manufacturers	558	(3)
Unavoidably Dangerous Aspects of Products	561	(1)
Unavoidably Dangerous Aspects of Products	562	(2)
Relevance of Industry Custom, Safety or Performance Standards, and Practical Technological Feasibility	564	(1)
Relevance of Industry Custom, Safety or Performance Standards and Practical Technological Feasibility	565	(3)
Relevance of Legislative or Administrative Regulatory Standards and Mandatory Government Contract Specifications	568	(1)
Relevance of Legislative or Administrative Regulatory Standards and Mandatory Government Contract Specifications	569	(2)
Notice of Possible Claim Required	571	(1)
Notice of Possible Claim Required	572	(1)
Length of Time Product Sellers Are Subject to Liability	573	(2)
Length of Time Product Sellers Are Subject to Liability	575	(4)
Comparative Responsibility and Apportionment of Damages	579	(2)
Comparative Responsibility and Apportionment of Damages	581	(3)
Conduct Affecting Comparative Responsibility	584	(2)
Conduct Affecting Comparative Responsibility	586	(5)
Multiple Defendants: Contribution and Implied Indemnity	591	(1)
Multiple Defendants: Contribution and Implied Indemnity	592	(2)
Relationship Between Product Liability and Worker Compensation	594	(1)
Relationship Between Product Liability and Worker Compensation	594	(3)
Sanctions Against the Bringing of Frivolous Claims and Defenses	597	(1)
Sanctions Against the Bringing of Frivolous Claims and Defenses	597	(1)
Arbitration	597	(2)
Arbitration	599	(6)
Expert Testimony	605	(1)
Expert Testimony	606	(2)
Non-pecuniary Damages	608	(1)
Non-pecuniary Damages	609	(2)
The Collateral Source Rule	611	(1)
The Collateral Source Rule	612	(2)
Punitive Damages	614	(1)
Punitive Damages	614	(3)
Severance Clause	617	(1)
Severance Clause	618	(1)
Effective Date	618	(1)
Effective Date	618	(3)
Common Sense Product Liability Legal Reform Act of 1996	621	(39)
Product Liability Reform Act of 1997	660	(26)
Biomaterials Access Assurance Act of 1998	686	(13)
EEC Directive on Liability for Defective Products	699