Welcome to Stanford Law School and to Torts! I'm excited to be working with you this quarter. Instead of using a standard casebook, we are using materials compiled specifically for this course. The vast bulk of the material was edited either by me or by Professor Jonathan Zittrain of Harvard Law School (who also teaches regularly at Stanford during January) as part of Harvard's H2O project. H2O is a Web-based platform for creating, editing, using, and sharing course materials electronically. If you want to read more about it, check out http://cyber.law.harvard.edu/research/h2o# Two advantages of the materials for this course beyond their being tailored to what we're doing: They're available on line and they're free. We'll orient you on some neat technical features later on, but for now, here's what you need to know: The authoritative version of the materials will be on the Stanford Canvas site for this course. The reason for this is that, while H2O is an amazing idea, there have been some technical glitchesin the past that make us want to be sure that we have a version of the course materials that is under Stanford's control. That version is supported in-house at Stanford, but H2O is NOT. So feel free to use, markup, edit, remix, collage, and whatever else you want to do with the H2O version, but understand that SLS cannot respond to problems that arise if you store something in your H2O account. That being said, H2O is a wonderful tool and the last time I taught the class, students really liked using it.

Ogden Nash wrote a poem called “Kind of an Ode to Duty,” that might inspire you:

O Duty,
Why hast thou not the visage of a sweetie or a cutie?
Why glitter thy spectacles so ominously?
Why art thou clad so abominously?
Why art thou so different from Venus
And why do thou and I have so few interests mutually in common between us?
. . . .

Why is it thy unfortunate wont
To try to attract people by calling on them either to leave undone the deeds they like, or to do the deeds they don’t?
. . . .
Thou so ubiquitous,
And I so iniquitous. . . .

As you'll see over the course of the quarter, courts, scholars, practitioners, and students traditionally break negligence cases down into four elements: duty, breach, causation, and damages. “Duty” is the obligation to behave, or refrain from behaving, in a particular way. There's a default duty standard: the “ordinary duty of reasonable care,” is how the Restatement characterizes it. As people (including artificial “people” like corporations and governments) go about their daily activities, they must act reasonably “under all the circumstances.”

The four elements of duty, breach, causation, and damages are not hermetically sealed off from one another: sometimes, the same idea can be expressed under more than one of these elemental headings. For example, in the famous _Palsgraf v. Long Island Railroad Co. _ case, which we will read later in the quarter, the New York Court of Appeals held that the railroad would not have to compensate Mrs. Palsgraf for the following chain of events: Two of the railroad's guards pushed and pulled an unknown-to-history passenger onto a moving train. It wasn't clear whether this help was itself the right thing to do. In any case, the passenger dropped the package he was carrying which (this is the sort of thing that happens in torts cases) happened to contain fireworks. These exploded, causing a shock wave along the platform which caused a set of freight scales to drop on Mrs. P. One might explain the court's decision not to hold the railroad responsible by saying that the railroad should not be liable because it was unforeseeable that what its employees did would result in the kind of injury Mrs. P. suffered; that explanation focuses on whether the railroad's acts were the proximate cause (which is to “proximate” and “cause” sort of what the Holy Roman Empire was to holy, Roman, and empire) of Mrs. P's injuries. The Restatement (Third) uses the phrase “scope of responsibility” to explain this concept. Or one might say that the railroad breached no duty to Mrs. P. because, as to her, its employees did nothing unreasonable.

Government is a major force in everyday life. So it's hardly surprising that people are frequently injured by the actions, or inactions, of governments. When should the tort system provide a remedy for these injuries? In what sense is a government like other tort defendants? In what ways is it different?

The freedom of the government from being sued – a doctrine known as sovereign immunity –“has been enjoyed as a matter of absolute right for centuries. . . . The doctrine, as it developed at common law, had its origins in the feudal system. Describing those origins, Pollock and Maitland [two leading legal historians] noted that no lord could be sued by a vassal in his own court, but each petty lord was subject to suit in the courts of a higher lord. Since the King was at the apex of the feudal pyramid, there was no higher court in which he could be sued. The King's immunity rested primarily on the structure of the feudal system and secondarily on a fiction that the King could do no wrong.” Nevada v. Hall, 440 U.S. 410, 414-15 (1979). As William Blackstone phrased it in his Commentaries on the Laws of England (an extraordinarily influential eighteenth-century treatise), “The king, moreover, is not only incapable of doing wrong, but even thinking wrong; he can never mean to do an improper thing.”

In the United States, both the federal government and every state government has waived its sovereign immunity in some circumstances. (Moreover, because of the structure of our federal system, Congress has abrogated states’ sovereign immunity with respect to some claims arising under or closely related to constitutional protections. If you’re interested in this area, it’s covered extensively in Constitutional Law, Federal Courts, and in Constitutional Litigation.)

In this course, we’ll consider some issues connected to one primary federal waiver of sovereign immunity, The Federal Tort Claims Act.

In pertinent part, 28 U.S.C. § 1346(b)(1) – known as the Federal Tort Claims Act – confers on federal district courts:

“exclusive jurisdiction of civil actions on claims against the United States, for money damages … for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”

Another provision, 28 U.S.C. § 2680, provides a list of exceptions to the FTCA – that is, refusals by the Government to waive its immunity. Here are some of the most significant exceptions:

“(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

(b) Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter. . . .

(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising . . . out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, “investigative or law enforcement officer” means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.

(i) Any claim for damages caused by the fiscal operations of the Treasury or by the regulation of the monetary system.

(j) Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.

(k) Any claim arising in a foreign country. . . .”

Virtually every state also has a variety of waivers of its sovereign immunity as well.

The Restatement (Third) of Torts: Physical and Emotional Harm contains the following overarching provision:

Ҥ 3. Negligence

A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are the foreseeable likelihood that the person's conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.

Similarly, California Civil Code § 1714(a) provides in part that: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”

But what does it mean to exercise “reasonable care”? Think back to our discussion of “reasonable” jurors and “unreasonable use of force” in Scott v. Harris.

We start our study of the second element of negligence-based torts — breach of a duty — with work from two of the most renowned judges in the history of American law: Oliver Wendell Holmes, Jr., and Learned Hand (who, with the exceptions of William Wayne Justice and John Minor Wisdom — two heroic judges in the twentieth-century South — has the best name in the Federal Reporters). How do they define what it means to behave reasonably?

We'll then turn to a couple of different areas where the question of how to judge whether a party has behaved reasonably arise.

In many cases, as we've already discussed, the question of whether the defendant breached a duty requires a totality-of-the-circumstances inquiry. Remember § 3 of the Restatement (Third) of Torts: Physical and Emotional Harms:

A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are the foreseeable likelihood that the person's conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.

But there are cimcumstances where this inquiry is modified to take account of knowledge that is extrinsic to the case in some way. Two of the most common involve “negligence per se” and “res ipsa loquitur.”

Negligence per se
Sometimes statutes or regulations prescribe or proscribe particular conduct. What happens when a defendant breaches one of those legal commands? The Restatement (Third) of Torts: Physical and Emotional Harms provides in § 14 that:

“An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor's conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.”

The Restatement (Second) of Torts provided in § 288B that:

“(1) The unexcused violation of a legislative enactment or an administrative regulation which is adopted by the court as defining the standard of conduct of a reasonable man, is negligence in itself.
(2) The unexcused violation of an enactment or regulation which is not so adopted may be relevant evidence bearing on the issue of negligent conduct.”

Res ipsa loquitur …
…Is Latin for “the thing speaks for itself.” Sometimes the very fact that the accident occurred bespeaks negligence. And sometimes, the defendant's (or defendants') negligence may itself create difficulties for the plaintiff's case.

The materials in this section explore these two concepts.

Much of contemporary tort law involves lawsuits against corporations. Edward Thurlow, an eighteenth-century Lord Chancellor of England, famously asked, “Did you ever expect a corporation to have a conscience, when it has no soul to be damned and no body to be kicked?” Henry Thoreau, in Civil Disobedience took a somewhat different stance: “It is truly enough said that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience.”

So when should a corporation be held liable? There is a major branch of modern torts law — products liability — that answers this question with respect to the goods corporations sell by bypassing the traditional negligence inquiry: corporations are liable to plaintiffs injured by goods they manufacture or sell when those goods are defectively designed or defectively manufactured or the corporation provides inadequate warning about potential dangers. So while it's fair to say that (usually) corporations are held liable only when they are at fault in some important sense (there's yet another category of cases we'll discuss later in the quarter that involve “strict liability,” or liability without fault at all — for “merely in living as and where we live,” as the poet Wallace Stevens wrote in Esthetique du Mal, a poem one of my first-year professors introduced me to), these cases lie outside the negligence doctrine we're now studying. We will discuss products liability later in the quarter.

But what about other sorts of injuries that arise out of doing business where the plaintiff is still required to show negligence by someone? Sometimes it is fair to attribute the negligence to the corporation itself: when, for example, corporate officers or supervisors act negligently in setting corporate policy or they are negligent in hiring or training their employees and this negligent hiring or inadequate training causes the plaintiff's injury. The Restatement (Third) of Agency § 7.03 refers to this as “direct liability.”

But sometimes any fault lies with line-level workers, who may even have violated company policy in doing whatever caused the plaintiff's injuries. Of course, injured plaintiffs can sue those workers. But there are pragmatic reasons — the lack of deep pockets, potential jury sympathy, and so forth — why a plaintiff might prefer to sue the corporation instead (or as well). Here, a different theory of liability — vicarious liability — kicks in. Section 7.03(2) of the Restatement (Third) of Agency explains, among other things, that a principal “is subject to vicarious liability to a third party harmed by an agent's conduct when . . . the agent is an employee who commits a tort while acting within the scope of employment.”

In cases where the employer would rather that the employee not have done the acts that resulted in the plaintiff's injury — and indeed might have rules against doing those acts — this naturally raises the question of when those acts nonetheless subject the employer to liability under the doctrine of respondeat superior, a branch of vicarious liability.

One of my favorite cases from when I taught Civil Procedure was Holmgren v. State Farm Mut. Ins. Co., 976 F.2d 573 (9th Cir. 1992). The underlying facts were pretty simple: Sharon Cannon, who was intoxicated at the time, ran a stop sign, plowed into a car in which Julie Holmgren riding, fled the scene, and collided with three other cars. She later pleaded guilty to several charges, including driving while under the influence of alcohol. Holmgren brought suit against Cannon for her injuries.

State Farm was Cannon's insurer. Knowing how financially vulnerable Holmgren was — she couldn't work and her husband was disabled — State Farm engaged in a bunch of delaying tactics and made a lowball settlement offer. Holmgren turned it down and ultimately, on the second day of trial, State Farm offered a much higher amount, which Holmgren accepted. (Holmgren also sued State Farm for the tort of wrongful refusal to settle an insurance claim.)

During the discovery process, Holmgren's attorneys served a “Request for Admission” on State Farm. This is a procedural device under the Federal Rules of Civil Procedure for getting the other party to admit facts that can be used in a motion for summary judgment or at trial. Request No. 1 asked State Farm to “[p]lease admit that the collision was caused by Sharon Cannon driving through a stop sign.” State Farm simply denied this request, without any explanation.

Ultimately, the district judge sanctioned State Farm for its categorical denial.

On appeal from the award of sanctions, State Farm's counsel offered the following justification for its refusal to admit: “[I]t was uncertain as to what may have been the proximate cause or causes of the accident. The accident may have been the result of Cannon's having been drinking and driving, or her inattentiveness, or her speed. Neither State Farm nor anyone else really knows what ‘caused’ the accident….”

The Ninth Circuit was not persuaded: “State Farm's epistemological doubts speak highly of its philosophical sophistication, but poorly of its respect for [the Rules of Federal Civil Procedure,]” which are intended to forestall this kind of game-playing. Holmgren, 976 F.2d at 580.

But what about the epistemology? Tort law insists on some connection between the defendant's action and the harm the plaintiff suffered. In a case like Holmgren, for example, if Cannon had missed Holmgren's car, Holmgren would have had no claim because Cannon would not have “caused” an injury to Holmgren. Nor could a different passenger — say, one who was injured at the same stop sign by a different driver who turned out to be unidentifiable or judgment-proof — recover from Cannon: Cannon did not “cause” that driver's injuries.

The materials in this section focus on one aspect of the cause inquiry: cause in fact. Section 26 of the Restatement (Third) of Torts: Physical and Emotional Harm provides that

Tortious conduct must be a factual cause of harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. Tortious conduct may also be a factual cause of harm under § 27.

Section 27 in turn provides:

If multiple acts occur, each of which under § 26 alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm.

After causation in fact, we turn to the question in the next section of “proximate cause”: when are there just too many links in the chain between the defendant's action and the plaintiff's injury to justify holding the defendant responsible?

Even if you haven’t read Ray Bradbury’s short story “A Sound of Thunder,” you’ve probably heard about its central point: a time traveler, Eckels, kills a single butterfly during a prehistoric dinosaur hunt and the entire world is changed. But for his having stepped on the butterfly, the world would have been different. Travis, the hunting guide explains the idea this way:

“[S]ay we accidentally kill one mouse here. That means all the future families of this one particular mouse are destroyed, right?"
“Right”
“And all the families of the families of the families of that one mouse! With a stamp of your foot, you annihilate first one, then a dozen, then a thousand, a million, a billion possible mice!”
“So they're dead,” said Eckels. “So what?”
“So what?” Travis snorted quietly. "Well, what about the foxes that'll need those mice to survive? For want of ten mice, a fox dies. For want of ten foxes a lion starves. For want of a lion, all manner of insects, vultures, infinite billions of life forms are thrown into chaos and destruction. Eventually it all boils down to this: fifty-nine million years later, a caveman, one of a dozen on the entire world, goes hunting wild boar or saber-toothed tiger for food. But you, friend, have stepped on all the tigers in that region. By stepping on one single mouse. So the caveman starves. And the caveman, please note, is not just any expendable man, no! He is an entire future nation. From his loins would have sprung ten sons. From their loins one hundred sons, and thus onward to a civilization. Destroy this one man, and you destroy a race, a people, an entire history of life. It is comparable to slaying some of Adam's grandchildren. The stomp of your foot, on one mouse, could start an earthquake, the effects of which could shake our earth and destinies down through Time, to their very foundations. With the death of that one caveman, a billion others yet unborn are throttled in the womb. Perhaps Rome never rises on its seven hills. Perhaps Europe is forever a dark forest, and only Asia waxes healthy and teeming. Step on a mouse and you crush the Pyramids. Step on a mouse and you leave your print, like a Grand Canyon, across Eternity. Queen Elizabeth might never be born, Washington might not cross the Delaware, there might never be a United States at all.”

And without a United States, you probably wouldn’t be studying Torts right now. So you see, everything is connected to everything else. Never ask for whom the bells tolls; it tolls for thee.

When should a defendant be held responsible for the downstream consequences of his actions? But for causation (that is, cause in fact) alone may not be enough. Suppose a driver – Dante – negligently backs into Priscilla’s Porsche in the Trader Joe’s parking lot, rendering the car inoperable. Pretty clearly, Dante is liable for the damage to the Porsche. And Dante might be held responsible for the income Priscilla lost because she couldn’t get to work on time. And if Priscilla had a rare piece of pottery in her trunk, Dante may (or may not) will have to pay for that too, even though most cars in a parking lot are unlikely to be carrying precious cargo. But should Dante be held responsible for the death of Tristan, a patient at Stanford Hospital because it turns out that Priscilla is a preeminent trauma surgeon and due to the delay in her arrival at the hospital because she had to wait for a taxi, Tristan was treated by a less experienced intern, maybe even an intern who made a mistake? The fender bender is a but for cause of the less expert medical care. But is it enough? And what about the loss of consortium that Tristan’s wife Isolde suffers? You can see a potentially endless stream of individuals affected.

Jonathan Zittrain captures the issue succinctly in the introduction to his playlist section : “Perhaps the best way to capture the essence of proximate cause is in a single word: fortuity. Sometimes only the barest fortuity ends up linking the other elements of negligence, and in those cases we stop to consider whether there should be liability.”

In this section of the materials, we address this issue. It’s often referred to as a question of “proximate cause” or “legal cause.” But as the “Special Note on Proximate Cause” in the Restatement (Third) of Torts: Physical and Emotional Harm explains, the term is a bit of a misnomer because the key concept is not actually whether the defendant caused the injury at issue but about whether the defendant should be held responsible. (And “proximate” only adds to the confusion because often the defendant’s link in the causal chain isn’t the closest in space or time – most “proximate” – to the injury, but we hold the defendant liable nonetheless.) Because “[t]ort law does not impose liability on an actor for all harm factually caused by the actor’s tortious conduct,” the new Restatement chooses to use the phrase “Scope of Liability” instead. But you’re likely to see lots of lawyers and judges continuing to use the phrase “proximate cause” or “legal cause.”

The basic rule is set out in Section 29:

An actor's liability is limited to those harms that result from the risks that made the actor’s conduct tortious.

But that basic rule is complicated by at least three forms of fortuity: the unexpected victim; the unexpected harm; and intervening events. We will consider how these influence who is held liable, and for what.

Even the simplest lawsuit involves at least two parties. Up until now, we've been focused largely, but not entirely (remember, for example, Martin v. Herzog and Coleman v. Soccer Ass'n) on what the defendant did. But what about what the plaintiff brings to the table? In these materials we focus on several major defenses that focus on the plaintiff's conduct as a reason to deny, or to limit, her recovery: assumption of risk and contributory and comparative negligence.

In the introduction to his playlist section on Contributory and Comparative Negligence, Professor Jonathan Zittrain writes:

Contributory negligence folds in all the elements of a negligence case against the plaintiff, with the plaintiff as his or her own victim. Traditionally, any amount of negligence by the plaintiff extinguished the case against the defendant. The harshness of that rule led to some countervailing exceptions to flip the “all” of the defense back to “nothing” — exceptions like the last clear chance doctrine, by which the plaintiff’s negligence wouldn’t count against the case if the plaintiff’s poor behavior had made him helpless, and then the defendant, seeing that, acted negligently anyway.

Starting in the 60’s and 70’s, American tort law started to split the difference between all or nothing. The concept of comparative negligence was introduced, and juries might be asked to compare the defendant’s negligence against the plaintiff’s, deducting the plaintiff’s share from any recovery. How to make such comparisons is far from clear, especially in cases with multiple defendants, each playing very different roles.

We saw this debate during the opening days of the quarter, when we read Coleman v. Soccer Association. Now, with several weeks of torts behind you, we'll return to the issue. I hope you'll be pleasantly surprised by how much you've learned.

So far, the cases we've been discussing have focused on the defendant's fault. Did the defendant act in a blameworthy manner — for example, by not using reasonable care or by not meeting the standards of his or her profession? In the arena of ordinary negligence, unless the plaintiff shows a breach of the defendant's duty, there's no liability, even if something goes wrong. Think Hammontree v. Jenner.

But are there occasions where a party can be liable without fault? Yes. At the far end of the spectrum is absolute liability. Insurance companies contract for precisely that kind of liability: if the specified harm happens, they agree to pay. And they may do so even when the claimant is at fault: one of the major reasons people buy homeowner's insurance is so that, even if they forget to turn off the stove when they leave for work, the insurance company will pay for the ensuing fire damage. There are not a lot of true absolute liabilities in tort law. Workers' compensation systems approach absolute liability: if a worker is injured on the job, it does not matter whether the employer was negligent, whether a co-worker was negligent, or whether the employee himself was negligent. As long as the injury occurred “on the job” — a plastic concept as you'll remember from the vicarious liability materials — the employer is bound to pay a statutorily determined amount. The tradeoff at the heart of workers' compensation systems is that in return for this quasi-absolute employer liability (firms are not, for example, required to compensate workers for deliberately self-inflicted injuries), employees are stripped of their right to bring a conventional tort suit and employers' liability is limited by statute to medical expenses and lost wages; there's no compensation for pain and suffering.

In between negligence and absolute liability lies strict liability. Strict liability holds a defendant liable without respect to fault, but leaves open the possibility of a defense — for example, comparative negligence. In the Restatement (Third), the discussion of strict liability appears in sections 20 to 25. Strict liability is generally limited to what the Restatement calls “abnormally dangerous activities” — those activities likely to produce injuries even when they're done with appropriate care. Comment e to section 20 (which appears in your paperback version on page 276) observes that:

Courts frequently state that blasting is a paradigm of an abnormally dangerous activity. It is useful to identify the elements of this paradigm case. First, the defendant chooses to engage in blasting for reasons of its own benefit and is almost certainly aware of the dangers associated with its blasting. Secondly, blasting is likely to cause harm, by way of debris or concussion, even though the defendant adopts all reasonable precautions in the course of conducting the blasting activity. Because blasting remains dangerous even when all reasonable care is exercised, blasting is an activity whose dangerousness is ‘inevitable' or ‘inherent.' The next special feature that distinguishes blasting is that blasting is an activity that causes harm essentially on its own, without meaningful contribution from the conduct of the victim or of any other actors. Typically, the victim is a passive, uninvolved third party, who is connected to the blasting only in the sense that the victim owns property in the neighborhood and suffers harm on account of the blasting.

The materials in this section look at whether a defendant's conduct should subject the defendant to liability without regard to fault. In a subsequent section, we look at the question whether a defendant should be held liable without regard to fault because a product sold or distributed by the defendant injured the plaintiff.

In contemporary society, many of the injuries individuals suffer result from their using consumer products — think of people who suffer adverse drug reactions (Susan Zuchowicz; Judith Sindell); break their jaws when soccer goalposts collapse (James Coleman); or cut their hand on the peanut jar (Richard Welge).

Over the course of the twentieth century, courts evolved distinctive doctrines for dealing with these sorts of injuries. These doctrines are grouped under the heading of “products liability.” They have their most important bite in cases where the ordinary tort rules would prevent the plaintiff from recovering for her injuries — because, for example, she can't show that the defendant she wants to sue (maybe the store where she bought the product — as opposed to the original manufacturer, who may have gone out of business, may not be amenable to suit where she wants to bring her case [by now you may have read cases like Nicastro and Worldwide Volkswagen in your Civil Procedure course], or may otherwise be less desirable) breached any conventional duty of care.

The basic rule, laid out in section 1 of the Restatement (Third) of Torts: Products Liability (1998) is that

One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.

Note that rule this imposes a different responsibility on individuals and corporations “engaged in the business of selling.” So if you sell your used car to your neighbor, the ordinary rules about negligence apply to you. But if you go into the business of selling cars, then you'll be held to a different standard. Note, too, that causation and damages are still required.

Most importantly, the rule turns on whether the product is “defective.” People can be injured by products that operate exactly as they should. For example, when Thomas Jenner plowed into the Hammontrees' bike shop, there's no reason to think the crash had anything to do with his car not operating properly.

The Restatement's definition of product defects appears in section 2 of the Restatement (Third) of Torts: Product Liability.

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:

(a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;

(b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;

© is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

The materials in this section plumb these concepts. We begin with the classic case in which California Supreme Court Justice Roger Traynor laid out the basic concept that became modern products liability law.