Principles of products liability / by Michael I. Krauss.
2011
KF1296 .K73 2011 (Map It)
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Details
Author
Title
Principles of products liability / by Michael I. Krauss.
Published
St. Paul, MN : West, [2011]
Copyright
©2011
Call Number
KF1296 .K73 2011
ISBN
9780314180391
0314180397
0314180397
Description
xiii, 292 pages : illustrations ; 24 cm.
System Control No.
(OCoLC)678476524
Bibliography, etc. Note
Includes bibliographical references and index.
Series
Record Appears in
Table of Contents
Preface
v
Introduction
1
pt. ONE
HISTORY AND BASIC STRUCTURE OF PRODUCTS LIABILITY LAW
ch. 1
Julian Felipe's Case
10
ch. 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
ch. 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
ch. 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 Suits
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
pt. TWO
ANALYSIS OF PRODUCTS LIABILITY LAW
ch. 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
ch. 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
ch. 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
ch. 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
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
ch. 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
ch. 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
ch. 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
ch. 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 Difference 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
ch. 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
C.
Additional Compensatory Damages in Case of Alleged Fraud
231
4.
Punitive Damages
232
pt. THREE
SPECIAL SITUATIONS AND PROPOSED ALTERNATIVES TO PRODUCTS LIABILITY LAW
ch. 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
ch. 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