Principles of Products Liability, 2d (Concise Hornbook Series)

by Michael Krauss

Overview

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.

Product Details

ISBN-13:	9781628106619
Publisher:	West Academic
Publication date:	01/30/2014
Series:	Concise Hornbook Series
Sold by:	Barnes & Noble
Format:	eBook
Pages:	362
File size:	880 KB

Table of Contents

Preface v

Introduction 1

Part 1 History and Basic Structure of Products Liability Law

Chapter 1 Julian Felipe's Case 10

Chapter 2 From Old to New: A Primer on the Rise of Products Liability 12

1 Introduction 12

2 Seminal Early Cases 18

A Winterbottom v. Wright 18

B Thomas v. Winchester 19

C MacPherson v. Buick 19

3 Eliminating Privity: From Implied Warranty to Strict Liability 21

A Implied Warranty and Tort Liability 21

B The Road to Strict Liability 23

C How "Strict" Is Strict Liability? 26

Chapter 3 Threshold Issues for Modern Products Liability 30

1 What Is the "Sale of a Product?" 30

2 Safety v. Insurance: Justice Traynor's Reasons for Enacting Strict Liability 34

Chapter 4 "Non-Strict" Theories of Products Liability 40

1 Negligence 40

A Salient Characteristics of a Negligence Suit 42

2 Tortious Misrepresentation 43

A Types of Misrepresentation Suites 43

3 Breach of Warranty 46

A Express Warranty 46

B Implied Warranty of Merchantability 48

C Implied Warranty of Fitness for a Particular Purpose 50

Part 2 Analysis of Products Liability Law

Chapter 5 "Strict" Liability: Who May Sue Whom? 54

1 Who is Strictly Liable? 54

A Component Manufacturers 55

B Downstream Sellers 56

C Service Providers 57

D Owners of Subsidiaries; Successor Corporations 58

E Lessors 60

F Franchisors and Trademark Licensors 61

G Sellers of Used Products 62

H Certifiers and Endorsers 64

I Workplace Accidents and Products Liability 65

2 Who Can Sue? 70

Chapter 6 The Plaintiff's Case: Strict Liability for Manufacturing Defects 72

1 Introduction 72

2 Negligence or Strict Liability? 73

A Breakdowns v. Defects v. Negligence 73

B Why Must the Defective Product Be "Unreasonably Dangerous?" 76

3 Special Case: Food and Drink and the "Foreign-Natural" Debate 77

Chapter 7 The Plaintiff's Case: Strict Liability for Design Defects 81

1 Introduction 81

2 Tests for Design Defect 83

A Negligence 83

B The Consumer Expectations Test 84

C The Risk-Utility Test 87

D Two-Pronged Standards 90

E The Restatement (Third)'s Design Defect Test 91

3 Proof of Design Defect 92

4 Special Case: Automobiles 95

Chapter 8 The Plaintiff's Case: Strict Liability for Informational Defects 104

1 Introduction 104

2 Negligence or Strict Liability? 107

A The Never-Before-Seen, Yet Conceivable Risk 108

B The Warned-Of but Allegedly Underemphasized Risk 110

C Obvious but Infinitesimal Risks 113

3 The How, Who and When of Warnings 117

A How 117

B Who 118

3 The How, Who and When of Warnings-Continued

C When 120

4 Special Case: Prescription Drugs 121

A General Principles 121

B The Impact of Mass Marketing of Prescription Drugs 125

C National Childhood Vaccine Injury Act ("NCVIA") 126

Chapter 9 The Plaintiff's Case: Causation 128

1 Introduction 128

2 Cause in Fact (Necessary Condition) 129

A Whodunit? 129

B Why did it Happen? 131

C When did the Defect get Introduced? 136

D "Substantial Factor" Cause-in-fact 137

3 Proximate Causation 138

A Introduction 138

B Product Danger X, Harm Y 140

C Superseding ("Intervening") Causes 142

Chapter 10 The Defendant's Case: Affirmative Defenses to Defectiveness Claims 146

1 Introduction 146

2 The Injured User (or Her Employer) Chose to Use the Product in a Dangerous Way 146

A The Product Was Misused 146

B The Product Was Obviously Dangerous 150

C The Product Was Inherently Dangerous 151

D The Product Was Altered 154

E The Product Was "Made to Order" 155

3 Too Much Time Has Passed to Hold Defendant Liable 157

A The Product's Useful Life had Expired 157

B The Harm was Intergenerational (Not Caused to the User) 161

C The Legislature has said it's too Late to Sue 162

4 "State of the Art" Defense (The Product was as Safe as it could be) 164

A General Comments 164

B "State of the Art" and Informational Defects 167

C "State of the Art" and Design Defect 169

D "State of the Art" and Post-Sale Duties 172

5 Regulatory Preemption Defense (The Product Was as Safe as the Government Said it had to be) 175

A The Problem 175

B The Supreme Court's "Solution" 178

6 The Standards Defense (Our Product was as Safe as Our Competitors' Product) 185

Chapter 11 The Defendant's Case: Causation and Other Peoples' Behavior 187

1 Introduction 187

2 Contributory Negligence 188

3 Comparative Negligence 190

A General Remarks 190

B Complicating Factor: Multiple Defendants 194

4 Assumption of Risk 197

5 "Last Clear Chance" 198

Chapter 12 The Defendant's Case: Other Affirmative Defenses 200

1 "I Made It, But Someone Else Designed it." 200

A Contracts Specification Defense 201

B Government Contractor Defense 203

2 "It Wouldn't have made a Differences if I had Warned you." 204

A 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 205

B A Third Party Warned the Victim, So the Lack of Warning on the Product was of no Consequence 210

C 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 211

D The Circumstances of the Injury make it Virtually Impossible that a Warning, had it been given, would have been Heeded 211

3 "We Agreed I wouldn't be Liable for this." 212

4 "You're Paid to Face these Dangers." 216

Chapter 13 Damages 218

1 Introduction: Additional Facts About Julian Felipe's Case 218

2 Compensatory Damages for Personal Injury and Death 220

A Wage Loss 220

B Pain and Suffering 221

C Fear of Future Injury and Medical Monitoring 224

D Wrongful death 226

3 Other Compensatory Damages 227

A Economic Damage to Tangible Property (Other than to the Product Itself) 227

B "Pure" Economic Loss 227

3 Other Compensatory Damages-Continued

C Additional Compensatory Damages in Case of Alleged Fraud 231

4 Punitive Damages 232

Part 3 Special Situations and Proposed Alternatives to Products Liability Law

Chapter 14 Special Types of Product Litigation: Toxic Substances and Class Actions 242

1 Introduction 242

2 Judicial Administration of Toxic Products Cases 246

3 Causation Problems in Toxic Products Cases 249

A Plaintiff's Behavior as a Contributing Cause to Toxic Products Liability 253

4 Damages Issues in Toxic Products Claims 254

A Potential but Unrealized Disease 254

B Property Damage and Loss of Profits 254

C Punitive Damages 256

Chapter 15 Alternative Approaches to Ensuring Product Safety 258

1 Introduction 258

2 Replacing Products Liability with Contract 258

A Libertarian Abolition of Products Liability 258

B Free Choice of State Law 259

3 Replacing State Products Liability Law with a National Law 261

A Federal Legislation 261

B Uniform State Laws of Product Liability 263

C Federal Common Law 264

4 International Approaches to Products Liability Law 266

5 Replacing Products Liability with Social Insurance 268

Table of Cases 279

Index 289