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Principles of Products Liability

by: Krauss, Michael I.

Principles of Products Liability

by: Krauss, Michael I.

ISBN 13:
9780314180391
ISBN 10:
0314180397
Format: Paperback
Copyright: 11/02/2010
Publisher: West Academic

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Summary

Products liability is perhaps the most contested and confused area of American private law. It affects every American who purchases or uses any product. It is the object of late-night talk show jokes and politicians' stump speeches. Yet, like many subjects discussed by politicians and TV stars, products liability is more subtle and multi-layered than they make it appear. This concise hornbook is designed to unpack these subtleties and allow the reader to understand current American products liability doctrine and to intelligently participate in debates about proposed reforms.

Preface	p. v
Introduction	p. 1
History and Basic Structure of Products Liability Law
Julian Felipe's Case	p. 10
From Old to New: A Primer on the Rise of Products Liability	p. 12
Introduction	p. 12
Seminal Early Cases	p. 18
Winterbottom v. Wright	p. 18
Thomas v. Winchester	p. 19
MacPherson v. Buick	p. 19
Eliminating Privity: From Implied Warranty to Strict Liability	p. 21
Implied Warranty and Tort Liability	p. 21
The Road to Strict Liability	p. 23
How "Strict" Is Strict Liability?	p. 26
Threshold Issues for Modern Products Liability	p. 30
What Is the "Sale of a Product?"	p. 30
Safety v. Insurance: Justice Traynor's Reasons for Enacting Strict Liability	p. 34
"Non-Strict" Theories of Products Liability	p. 40
Negligence	p. 40
Salient Characteristics of a Negligence Suit	p. 42
Tortious Misrepresentation	p. 43
Types of Misrepresentation Suites	p. 43
Breach of Warranty	p. 46
Express Warranty	p. 46
Implied Warranty of Merchantability	p. 48
Implied Warranty of Fitness for a Particular Purpose	p. 50
Analysis of Products Liability Law
"Strict" Liability: Who May Sue Whom?	p. 54
Who is Strictly Liable?	p. 54
Component Manufacturers	p. 55
Downstream Sellers	p. 56
Service Providers	p. 57
Owners of Subsidiaries; Successor Corporations	p. 58
Lessors	p. 60
Franchisors and Trademark Licensors	p. 61
Sellers of Used Products	p. 62
Certifiers and Endorsers	p. 64
Workplace Accidents and Products Liability	p. 65
Who Can Sue?	p. 70
The Plaintiff's Case: Strict Liability for Manufacturing Defects	p. 72
Introduction	p. 72
Negligence or Strict Liability?	p. 73
Breakdowns v. Defects v. Negligence	p. 73
Why Must the Defective Product Be "Unreasonably Dangerous?"	p. 76
Special Case: Food and Drink and the "Foreign-Natural" Debate	p. 77
The Plaintiff's Case: Strict Liability for Design Defects	p. 81
Introduction	p. 81
Tests for Design Defect	p. 83
Negligence	p. 83
The Consumer Expectations Test	p. 84
The Risk-Utility Test	p. 87
Two-Pronged Standards	p. 90
The Restatement (Third)'s Design Defect Test	p. 91
Proof of Design Defect	p. 92
Special Case: Automobiles	p. 95
The Plaintiff's Case: Strict Liability for Informational Defects	p. 104
Introduction	p. 104
Negligence or Strict Liability?	p. 107
The Never-Before-Seen, Yet Conceivable Risk	p. 108
The Warned-Of but Allegedly Underemphasized Risk	p. 110
Obvious but Infinitesimal Risks	p. 113
The How, Who and When of Warnings	p. 117
How	p. 117
Who	p. 118
The How, Who and When of Warnings-Continued
When	p. 120
Special Case: Prescription Drugs	p. 121
General Principles	p. 121
The Impact of Mass Marketing of Prescription Drugs	p. 125
National Childhood Vaccine Injury Act ("NCVIA")	p. 126
The Plaintiff's Case: Causation	p. 128
Introduction	p. 128
Cause in Fact (Necessary Condition)	p. 129
Whodunit?	p. 129
Why did it Happen?	p. 131
When did the Defect get Introduced?	p. 136
"Substantial Factor" Cause-in-fact	p. 137
Proximate Causation	p. 138
Introduction	p. 138
Product Danger X, Harm Y	p. 140
Superseding ("Intervening") Causes	p. 142
The Defendant's Case: Affirmative Defenses to Defectiveness Claims	p. 146
Introduction	p. 146
The Injured User (or Her Employer) Chose to Use the Product in a Dangerous Way	p. 146
The Product Was Misused	p. 146
The Product Was Obviously Dangerous	p. 150
The Product Was Inherently Dangerous	p. 151
The Product Was Altered	p. 154
The Product Was "Made to Order"	p. 155
Too Much Time Has Passed to Hold Defendant Liable	p. 157
The Product's Useful Life had Expired	p. 157
The Harm was Intergenerational (Not Caused to the User)	p. 161
The Legislature has said it's too Late to Sue	p. 162
"State of the Art" Defense (The Product was as Safe as it could be)	p. 164
General Comments	p. 164
"State of the Art" and Informational Defects	p. 167
"State of the Art" and Design Defect	p. 169
"State of the Art" and Post-Sale Duties	p. 172
Regulatory Preemption Defense (The Product Was as Safe as the Government Said it had to be)	p. 175
The Problem	p. 175
The Supreme Court's "Solution"	p. 178
The Standards Defense (Our Product was as Safe as Our Competitors' Product)	p. 185
The Defendant's Case: Causation and Other Peoples' Behavior	p. 187
Introduction	p. 187
Contributory Negligence	p. 188
Comparative Negligence	p. 190
General Remarks	p. 190
Complicating Factor: Multiple Defendants	p. 194
Assumption of Risk	p. 197
"Last Clear Chance"	p. 198
The Defendant's Case: Other Affirmative Defenses	p. 200
"I Made It, But Someone Else Designed it."	p. 200
Contracts Specification Defense	p. 201
Government Contractor Defense	p. 203
"It Wouldn't have made a Differences if I had Warned you."	p. 204
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	p. 205
A Third Party Warned the Victim, So the Lack of Warning on the Product was of no Consequence	p. 210
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	p. 211
The Circumstances of the Injury make it Virtually Impossible that a Warning, had it been given, would have been Heeded	p. 211
"We Agreed I wouldn't be Liable for this."	p. 212
"You're Paid to Face these Dangers."	p. 216
Damages	p. 218
Introduction: Additional Facts About Julian Felipe's Case	p. 218
Compensatory Damages for Personal Injury and Death	p. 220
Wage Loss	p. 220
Pain and Suffering	p. 221
Fear of Future Injury and Medical Monitoring	p. 224
Wrongful death	p. 226
Other Compensatory Damages	p. 227
Economic Damage to Tangible Property (Other than to the Product Itself)	p. 227
"Pure" Economic Loss	p. 227
Other Compensatory Damages-Continued
Additional Compensatory Damages in Case of Alleged Fraud	p. 231
Punitive Damages	p. 232
Special Situations and Proposed Alternatives to Products Liability Law
Special Types of Product Litigation: Toxic Substances and Class Actions	p. 242
Introduction	p. 242
Judicial Administration of Toxic Products Cases	p. 246
Causation Problems in Toxic Products Cases	p. 249
Plaintiff's Behavior as a Contributing Cause to Toxic Products Liability	p. 253
Damages Issues in Toxic Products Claims	p. 254
Potential but Unrealized Disease	p. 254
Property Damage and Loss of Profits	p. 254
Punitive Damages	p. 256
Alternative Approaches to Ensuring Product Safety	p. 258
Introduction	p. 258
Replacing Products Liability with Contract	p. 258
Libertarian Abolition of Products Liability	p. 258
Free Choice of State Law	p. 259
Replacing State Products Liability Law with a National Law	p. 261
Federal Legislation	p. 261
Uniform State Laws of Product Liability	p. 263
Federal Common Law	p. 264
International Approaches to Products Liability Law	p. 266
Replacing Products Liability with Social Insurance	p. 268
Table of Cases	p. 279
Index	p. 289
Table of Contents provided by Ingram. All Rights Reserved.

Amazon no longer offers textbook rentals. We do!

Principles of Products Liability

Principles of Products Liability

9780314180391

0314180397

Summary

Table of Contents

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