THE EASY CASE FOR PRODUCTS LIABILITY LAW: A RESPONSE TO PROFESSORS POLINSKY AND SHAVELL | jgersen | August 24, 2017

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THE EASY CASE FOR PRODUCTS LIABILITY LAW: A RESPONSE TO PROFESSORS POLINSKY AND SHAVELL

by jgersen
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What Is “Products Liability”?

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[T]he phrase “products liability” is used to refer to a discrete tort cause of action (and related defenses) that emerged in the 1960s and 1970s. The canonical sources for this new tort include the California Supreme Court’s 1963 decision in Greenman v. Yuba Power Products, Inc. and section 402A of the Re- statement (Second) of Torts, adopted in 1965. Prior to the mid-1960s, liability for product-related injuries was determined by reference  to other generally applicable causes of action, especially negligence, breach of warranty, and fraud. These other claims remain available in substance (and usually in form) to persons injured by products. However, it was expected and has proved to be the case that the new products liability tort would make redress available to injury victims who could not prevail on any of these other claims and would thus of- ten obviate the need for victims to rely on them. This is because the new  tort’s  liability  standard  was  to  be  defect-based  rather  than conduct-based. There is now a cause of action against a commercial seller who injures a consumer by sending into the stream of commerce a product containing a dangerous defect irrespective, at least to some degree, of how the defect arose. Because the products liability cause of action focuses on the dangerous condition of the product, and not in the first instance on the degree of care exercised by  the  seller,  the phrase “products liability,” used in its narrow sense, is often preceded by the adjective “strict.” However, this label is misleading insofar as it suggests that a seller is subject to liability merely by virtue of sending a product out into the world that happens to cause personal injury or property damage. The product must in addition be defective — sub-standard in one way or another.

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In contrast to the narrow usage just described, the phrase “products liability law” is also used to encompass not just the distinctive defect-based cause of action, but any recognized ground on which a seller might be held liable for injuries caused by its product. One can get a sense of this broader usage by considering the allegations one might expect to find in a present-day complaint alleging injuries caused by a product. In addition to asserting claims of product defect, the complaint may also contain counts for negligence and breach of warranty, as well as fraud, negligent misrepresentation, consumer fraud, civil RICO, and/or medical monitoring. Some of these causes of action are of uncertain scope and validity. Others, such as fraud, have impressive pedigrees and routinely support substantial  judgments. The point is that each type of claim references a distinct legal wrong that might give rise to a manufacturer’s liability for injuries caused by one of its products.

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August 25, 2017

THE EASY CASE FOR PRODUCTS LIABILITY LAW: A RESPONSE TO PROFESSORS POLINSKY AND SHAVELL

THE EASY CASE FOR PRODUCTS LIABILITY LAW: A RESPONSE TO PROFESSORS POLINSKY AND SHAVELL

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Jacob Gersen

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