Products Liability

by Henderson, James A.; Twerski, Aaron D.

• ISBN13: 9780735513167
• ISBN10: 0735513163
• Format: Hardcover
• Copyright: 2000-02-01
• Publisher: Wolters Kluwer Law and Business

Summary

Written by the two reporters For The Restatement (Third) of Torts: Product Liability, The new edition of this intellectually challenging text introduces students To The black letter of the law and its underlying policies, while applying the law to real-life situations. Unlike other casebooks, The Restatement rules and comments are fully integrated into the text - thus eliminating the need for supplementary material to bring the Restatement into class discussion. The authors continue their unique approach To The material with: an updated blend of theory and litigation complimented by cases and problems that reflect the current status And The future trends of products liability an accessible, three-part structure praised by the book's users for its careful attention To The relationship between each of the parts a student-friendly mix of problems, cases, excerpts, notes, and questions New material For The Fourth Edition includes: a host of new cases including: Myriak v. Port Authority of New York; Khumo Tire, Ltd v. Carmichael; Liriano v. Hobart Corporation; Perez v. Wyeth Laboratory Inc.; and Scarangella v. Thomas Built Buses Inc. additional coverage of Component Parts and how a number of courts have adopted Section 5 of the Restatement which limits the scope of liability for manufacturers of component parts a trilogy of cases dealing with the issue of reasonable alternative design v. consumer expectations, including Potter v. Chicago Pneumatic Tool Co. a more concise and streamlined Part III - Institutional Perspectives additional hypotheticals

Table of Contents

Table of Problems	xxi
Preface to the Fourth Edition	xxiii
Acknowledgments	xxv
PART I Liability for Manufacturing Defects	1	(310)
Establishing Defect and Assigning Responsibility	3	(78)
Carryover Concepts from First-Year Torts	4	(25)
Negligence	4	(4)
The Fall of the Privity Rule	8	(2)
Process and Procedure: No-Duty Rules	10	(1)
The Rise of Res Ipsa Loquitur	11	(1)
Escola v. Coca Cola Bottling Co.	12	(4)
Strict Liability and Proof of Original Defect	16	(1)
Myrlak v. Port Authority or New York and New Jersey	17	(12)
Problem One	29	(1)
Novel Strategies for Assigning Responsibility	29	(40)
Assigning Responsibility to the Entire Distributive Chain	29	(2)
Anderson v. Somberg	31	(7)
Problem Two	38	(6)
Wolfram, Modern Legal Ethics	44	(2)
Assigning Responsibility in Product-Related Workplace Accidents	46	(1)
Direct Attack against the Employer	47	(1)
Blankenship v. Cincinnati Milacron Chemicals, Inc.	47	(9)
Coordinating Responsibility between the Employer and the Product Manufacturer	56	(1)
Kotecki v. Cyclops Welding Corp.	56	(3)
Social Control of Product-Related Accidents: Coordinating the Worker Compensation and Tort Recovery Systems	59	(3)
Problem Three	62	(1)
Utilizing Government-Mandated Product Recalls to Assign Responsibility	63	(1)
Barry v. Manglass	63	(6)
Problem Four	69	(1)
Allocating Responsibility among Members of the Distributive Chain	69	(12)
Joint and Several Liability	70	(3)
Contribution among Joint Tortfeasors	73	(3)
Indemnity	76	(1)
Settlement and Release	77	(4)
Strict Liability in Tort	81	(66)
Implied Warranty as a Bridge to Strict Liability	81	(6)
Greenman v. Yuba Power Products, Inc.	83	(4)
Problem Five	87	(1)
The Restatements (Second) and (Third) of Torts: Defining the Standard for Manufacturing Defect	87	(21)
Philosophical Implications: Policies Supporting Strict Liability in Tort	91	(1)
Henderson, Coping with the Time Dimension in Products Liability	91	(3)
Pulley v. Pacific Coca-Cola Bottling Co.	94	(3)
Practical Implications: What Does Strict Liability Actually Accomplish?	97	(1)
Problem Six	98	(1)
Cronin v. J.B.E. Olson Corp.	99	(7)
Problem Seven	106	(2)
Who Is Strictly Liable?	108	(39)
In General	108	(7)
Special Categories at the Boundaries of Strict Liability	115	(1)
Commercial Sellers of Used Products	115	(1)
Crandell v. Larkin and Jones Appliance Co.	115	(4)
Note: Tort and Contract --- Something Old, Something New	119	(2)
Disclaimers: New and Used Products	121	(5)
Problem Eight	126	(2)
Sale-Service Hybrids	128	(1)
Magrine v. Krasnica	128	(8)
Winter v. G.P. Putnam's Sons	136	(4)
Problem Nine	140	(1)
Nonsale Product Suppliers	141	(1)
Retailers and Wholesalers	142	(1)
Model Uniform Product Liability Act, §105	143	(2)
Problem Ten	145	(2)
Causation	147	(72)
Did the Product, in Fact, Harm the Plaintiff? (Herein of Judicial Reliance on Statistics and Expert Testimony)	148	(30)
Traditional Cause-in-Fact	148	(2)
Daubert v. Merrell Dow Pharmaceuticals, Inc.	150	(9)
Kumho Tire Co. Ltd. v. Carmichael	159	(12)
Problem Eleven	171	(1)
Exposure to Risk of Future Injury	172	(1)
Mauro v. Raymark Industries, Inc.	172	(6)
Did the Defendant Supply the Product That Harmed the Plaintiff? (Herein of Market Share)	178	(16)
Collins v. Eli Lilly Company	179	(9)
Market Share: The Fallout	188	(5)
One More Example of Imposing Liability on a Defendant That Didn't Cause the Plaintiff's Injury: Successor Corporation Liability	193	(1)
Problem Twelve	193	(1)
Did the Defect in the Defendant's Product Contribute to Causing the Plaintiff's Harm?	194	(13)
All-Or-Nothing Causation	195	(1)
Midwestern V.W. Corp. v. Ringley	195	(2)
Problem Thirteen	197	(1)
Enhanced Injury	198	(1)
Lahocki v. Contee Sand & Gravel Co., Inc.	198	(7)
Elimination of the Opportunity to Avoid Injury: Loss of a Chance	205	(2)
Problem Fourteen	207	(1)
Was the Nature of the Plaintiff's Harm Reasonably Foreseeable? (Herein of Proximate Cause)	207	(9)
Union Pump Co. v. Allbritton	207	(8)
Problem Fifteen	215	(1)
Proximate Cause --- A Rose by Any Other Name . . .	216	(3)
Basic Elements of the Plaintiff's Recovery	219	(52)
Recovery of Compensatory Damages	219	(4)
In General	219	(1)
Major Legislative Reforms	220	(1)
Limitations on Noneconomic Damage Awards	220	(2)
Reform of the Collateral Source Rule	222	(1)
Reforms Allowing Periodic Payment of Damages	222	(1)
Recovery for Emotional Upset	223	(13)
Kennedy v. McKesson Co.	226	(5)
Problem Sixteen	231	(1)
Social Control of Product-Related Accidents: Assessing the Costs of Dread	232	(4)
Recovery for Pure Economic Loss	236	(19)
East River Steamship Corp. v. Transamerica Delaval, Inc.	238	(10)
The Board of Education of City of Chicago v. A, C, and S, Inc.	248	(5)
Problem Seventeen	253	(1)
Modern Legal Ethics	254	(1)
C. Wolfram
Recovery of Punitive Damages	255	(16)
Wangen v. Ford Motor Co.	255	(9)
Problem Eighteen	264	(2)
Note: Federal Constitutional Control of Punitive Damages	266	(5)
Affirmative Defenses	271	(40)
Conduct-Based Defenses	271	(30)
Plaintiff's Conduct	271	(1)
Plaintiff's Conduct as Total Bar	272	(2)
Andren v. White-Rodgers Co.	274	(3)
Problem Nineteen	277	(1)
Comparative Fault	278	(1)
Introduction to Basic Principles	278	(2)
Multiple Defendants	280	(1)
Unit Rule	280	(1)
Modified Unit Rule	280	(1)
Individual Unit Rule	281	(1)
Assumption of the Risk of Last Clear Chance	281	(1)
Comparative Fault in Products Liability	281	(1)
Murray v. Fairbanks Morse	281	(6)
Plaintiff's Conduct Under Comparative Fault: The Costs of Categorization	287	(3)
Problem Twenty	290	(1)
Social Control of Product-Related Accidents: Comparative Fault and the Defendant of Last Resort, or ``Big Sugar Daddy and the Law of Torts''	291	(2)
Waterson v. General Motors Corp.	293	(6)
Social Control of Product-Related Accidents: The Seat Belt Defense and Governmental Control of Drivers' Behavior	299	(2)
Non-Conduct-Based Defenses	301	(10)
Time-Based Defenses	301	(1)
Open-Ended Triggering Device	301	(1)
Knowledge of Injury	302	(1)
The Causal Connection Between the Injury and the Product	302	(1)
The Identity of the Defendant	303	(1)
Fixed-Period Time Bar	304	(1)
Problem Twenty-One	305	(1)
Note: Constitutionality of Statute of Repose	306	(2)
Contract-Based Defenses	308	(1)
Worker Compensation Barriers	309	(1)
Governmental Immunity	309	(1)
Government Contractor Defense	310	(1)
PART II Liability for Generically Dangerous Products	311	(334)
When the Defendant Says Too Much in Marketing the Product: Express Warranty and Misrepresentation	313	(24)
Express Warranty	313	(12)
What Is Warranted	313	(2)
Baxter v. Ford Motor Co.	315	(1)
Problem Twenty-Two	316	(1)
Basis of the Bargain --- The Reliance Controversy	317	(1)
Cipollone v. Liggett Group, Inc.	318	(6)
Note: The Implied Warranty of Fitness for Particular Purpose	324	(1)
Misrepresentation	325	(12)
Crocker v. Winthrop Laboratories	327	(5)
Note: Tort and Contract: Representations as the Mood Music for Determining Product Defect Under Existing Law	332	(1)
Problem Twenty-Three	333	(4)
When the Defendant Says Too Little in Marketing the Product: Failure to Instruct or Warn	337	(136)
The Basic Duty to Instructor Warn	338	(37)
When Instructions and Warnings Serve to Reduce Risks by Affecting Modes of Product Use and Consumption	339	(1)
Jamieson v. Woodward & Lothrop	339	(9)
Problem Twenty-Four	348	(2)
To Speak or Not to Speak; or, ``Digging Your Own Grave with the Best of Intentions''	350	(1)
Problem Twenty-Five	351	(1)
When Instructions and Warnings Serve to Support Informed Choices by Product Users and Consumers	351	(3)
Problem Twenty-Six	354	(1)
Liriano v. Hobart Corp	355	(5)
Does a Failure-to-Warn Claim Sound in Negligence or in Strict Liability	360	(1)
Anderson v. Owens-Corning Fiberglas Corp.	360	(9)
Liability Insurance and Long-Tail, Unknowable Risks	369	(1)
Olson v. Prosoco, Inc.	370	(2)
How the New Restatement Sorts Out the Basic Issues	372	(3)
Post-Sale Duty to Warn and Recall	375	(6)
Lovick v. Wil-Rich	375	(6)
The Sufficiency of the Defendant's Instructions and Warnings	381	(14)
Tesmer v. Rich Ladder Co.	381	(3)
Problem Twenty-Seven	384	(2)
Broussard v. Continental Oil Co.	386	(5)
Henderson & Twerski, Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn	391	(3)
Problem Twenty-Eight	394	(1)
The Growing Importance of Federal Preemption in Determining Liability for Failure to Instruct or Warn	395	(15)
Cipollone v. Liggett Group, Inc.	396	(14)
Who Must Instruct and Warn Whom?	410	(8)
Persons v. Salomon North America, Inc.	410	(8)
Did the Inadequacy of the Defendant's Instructions or Warnings Proximately Cause the Plaintiff's Harm?	418	(15)
Ayers v. Johnson & Johnson Baby Products Co.	418	(10)
Problem Twenty-Nine	428	(1)
Powell v. Standard Brands Paint Co.	428	(4)
Problem Thirty	432	(1)
A Special Product Category: Prescription Drugs	433	(36)
Warning the Health Care Provider	435	(1)
Sterling Drug, Inc. v. Yarrow	435	(6)
Direct Warnings to the Patient	441	(3)
Perez v. Wyeth Laboratories, Inc.	444	(10)
Defective Drug Design	454	(1)
Brown v. Superior Court (Abbott Laboratories)	454	(11)
Note: Liability for Harm Caused by Nonprescription Drugs and Cosmetics	465	(4)
Postscript on Failure to Instruct or Warn: Other Forms of Defective Marketing	469	(4)
When What the Defendant Says in Marketing the Product Isn't Controlling: Liability Based on Defective Design	473	(172)
Note: A Time to Tell the Truth	474	(1)
Defining the Underlying Duty to Avoid Defective Designs	475	(83)
The Basic Design Standard	478	(1)
The Failure of the Design to Perform Its Manifestly Intended Function: Drawing an Inference of Defect from Circumstantial Evidence	478	(2)
The Failure of the Design to Include an Available, Feasible Safety Feature: Traditional Risk-Utility Balancing	480	(1)
Troja v. Black & Decker Manufacturing Co.	481	(8)
Problem Thirty-One	489	(1)
Philosophical Implications: And Now a Word from the Enemy	490	(2)
The Consumer Expectations Test for Defect	492	(1)
Heaton v. Ford Motor Co.	493	(6)
Problem Thirty-Two	499	(2)
The Two-Prong Test for Defect	501	(1)
Soule v. General Motors Corporation	501	(11)
Problem Thirty-Three	512	(3)
Potter v. Chicago Pneumatic Tool Company	515	(11)
Note: The Consumer Expectations Test as a Shield from Liability	526	(3)
Product Category Liability	529	(1)
O'Brien v. Muskin Corp.	530	(9)
Henderson & Twerski, Closing the American Products Liability Frontier: The Rejection of Liability Without Defect	539	(4)
Wertheimer, The Smoke Gets in Their Eyes: Product Category Liability and Alternative Feasible Designs in the Third Restatement	543	(2)
Bogus, War on the Common Law: The Struggle at the Center of Products Liability	545	(2)
Sui Generis Tests for Design Defect	547	(3)
Problem Thirty-Four	550	(1)
The Interconnectedness of Design Defect and Failure to Warn	551	(1)
The Interconnectedness of Design and Manufacturing Defect: Useful Product Life	552	(1)
Mickle v. Blackmon	553	(5)
Is Risk-Utility Balancing Too Open-Ended to Be Workable in Products Liability Litigation?	558	(30)
The Nature of the Problems of Unworkability	558	(1)
Dawson v. Chrysler Corp.	559	(7)
Henderson, Judicial Review of Manufacturers' Conscious Design Choices: The Limits of Adjudication	566	(5)
Possible Solutions to the Unworkability Problems	571	(1)
The Role of State and Federal Regulation in Rendering Risk-Utility Balancing More Manageable	571	(1)
State and Federal Legislation as Surrogates for Judicial Risk-Utility Balancing	571	(2)
Federal Preemption	573	(1)
Zimmerman v. Volkswagen of America, Inc.	573	(7)
Can Sensitive Judicial Management of Design Litigation Render Marginal Risk-Utility Balancing More Justiciable?	580	(1)
Wilson v. Piper Aircraft Corp.	580	(8)
The Time Dimensions of Product Design Liability	588	(20)
Increases in Knowledge of Risk	590	(1)
Note: The Unforseeability Problem: The Rhetoric and the Reality	591	(2)
Increases in Knowledge of Risk-Avoidance Techniques	593	(1)
State of Art as a Defense	593	(1)
Boatland of Houston, Inc. v. Bailey	594	(8)
Subsequent Remedial Measures	602	(4)
Shifts in Public Attitudes Toward Risk	606	(2)
Special Duty and Proximate Cause Problems in Design Litigation	608	(25)
The Duty of Sellers of Component Parts and Incomplete Products	609	(1)
Zaza v. Marquess and Nell, Inc.	609	(11)
Can Safety Equipment Be Optional for the Purchaser or Does the Manufacturer Have an Absolute Duty to Integrate Safety Features into the Product?	620	(1)
Scarangella v. Thomas Built Buses, Inc.	620	(4)
The Interplay Between Design and But-For Proximate Causation	624	(1)
Truchan v. Nissan Motor Corp.	625	(8)
Relating the Design Issue to Affirmative Defenses	633	(12)
Product Misuse, Alteration and Modification: The Confusion Brought About by False Characterization of These Forms of Plaintiff Behavior as Affirmative Defenses	633	(3)
Contributory Fault and Assumption of the Risk	636	(1)
The Government Contractor Defense	637	(1)
Boyle v. United Technologies Corp.	637	(8)
PART III Institutional Perspectives	645	(84)
Special Features Reflecting the Fact That Most Products Defendants Are Corporations	647	(30)
The General Rule of Limited Shareholder Liability (and Exceptions Thereto)	647	(20)
Nelson v. International Paint Co., Inc.	651	(8)
Problem Thirty-Five	659	(8)
A Special Extension of Liability: Successor Corporations	667	(10)
Martin v. Abbott Laboratories	667	(10)
Adjusting the Liability System to the Demands of a National Economy	677	(26)
The Patchwork Quilt of Existing State Law	677	(2)
Uniform Laws Approach	679	(2)
The New Restatement (Third) of Torts: Products Liability	681	(1)
Federal Legislative Solutions	681	(2)
Substantive Law Reform	681	(2)
Insurance Availability: The Risk Retention Act	683	(1)
Are Judicial Solutions Viable?	683	(10)
Federal Common Law	683	(1)
In re ``Agent Orange'' Product Liability Litigation	684	(6)
Federal Preemption of State Law	690	(1)
National Management of Mass Tort Litigation	691	(2)
Areas of Special Federal Competence	693	(10)
The Federal Bankruptcy System	693	(1)
Note: The Manville Bankruptcy: Treating Mass Tort Claims in Chapter 11 Proceedings	693	(6)
Admiralty	699	(4)
International Perspectives on Products Liability	703	(26)
Foreign Products Liability Law	703	(16)
Product Liability and Medical Malpractice in Comparative Context, in the Liability Maze	703	(10)
G. Schwartz
Products Liability Act and Transnational Litigation in Japan	713	(6)
H. Kobayashi
Y. Furuta
Does the American Liability System Put American Firms at a Competitive Disadvantage?	719	(10)
Effects of the American Liability System on Costs and Prices of American Products	719	(4)
Effects of the American Products Liability System on Product Innovation	723	(6)
Table of Cases	729	(14)
Table of Statutes	743	(6)
Index	749