Torts

25 November

• On Tuesday: compensatory and then punitive damages.
• Exam on the 16th: she will be unavailable 12/6-16. She'll have e-mail.
• So, back with failure to warn, and defective products. What about risks that weren't known at the time the product was tendered?
• Vassallo
  So, in retrospect, there was negligent design. There weren't good warnings.

  The court's discussion of unknown risks is all dicta-- the finding of negligence was made on the known risks. Anyway, the court wants to get rid of the hindsight approach, because most jurisdictions don't do that. But we do want to hold them to the standard of an expert in the field.

  Plus liability for unknown risks has limited deterrent value. That's problematic, though. Remember strict liability? We focus on the consumer and assuring them a safe product. To say that now manufacturers should be exempt, because they didn't know about the risks, we're taking focus away from the plaintiff. Plus, we'd like to incent people to find out about risks. So there are two sides to this coin, but this court is sympathetic to the manufacturer.

  Moving away from hindsight liability puts us back into the area of negligence: liability for absence of warnings about risks that the defendant knew or should have known. So, goodbye strict liability, in this area.

• How did we get here? See note 1 on page 614. Beshada is an important asbestos case. In toxic harm cases, you either have to impose strict liability (and hope that manufacturers will take as much care as possible) or be stuck with endless litigation about the state of knowledge way back when the exposure occurred. So the plaintiff needs hindsight liability, or else it's going to be impossible to say what the defendant knew or should have known 20 years ago.

  Nevertheless, the idea of hindsight liability just seems unfair. People do everything that the state of knowledge demands, but something still goes wrong.

• Vassallo also suggests that there's an ongoing duty to warn. This is why we get product recall notices. So even though you aren't liable for not having known something, when the danger comes to light, you need to warn.
• Defenses: what is a poor defendant to do when all these plaintiff armaments come knocking?
• General Motors Corporation v. Sanchez
  Probably the deceased thought his car was in park, but maybe it was between park and reverse. So he got out. Now, when you get out of a running car, you are advised to make sure it's stable, and also that you're not locking yourself out. So this person, who died as a result, appears to be at least somewhat foolish.

  So. Was there something about the vehicle itself that could have precipitated this incident? Does a plaintiff have a duty to discover risks? And, on the flip side, did the plaintiff breach a duty of ordinary care?

  So basically, can a manufacturer, who is strictly liable for putting a defective product on the market argue that you are negligent for not trying to find out about the defects, or that you are negligent about how you used the product? The answers are no and yes.

  A court is free to ignore R2T, but it can't ignore case law: they either have to overrule it or find some other way to carve it up.

  Anyway, we had R2T § 402. And out of that, we had Keen. We had the rule that an assumed risk was a complete bar to recovery, but failure to discover the risk was not to be held against the plaintiff. And then Keen: failures to discover and avoid a defect are not defenses, so you can't hold the plaintiff responsible on this basis. Basically, plaintiffs can recover all damages unless they've assumed the risk, in which case they recover nothing.

  But then we get R3T, and comparative negligence, so we're not just stuck between two absolute poles. So we acknlowdege that there has been negligence on the part of the plaintiff, but recovery isn't wholly precluded: we'll compare the negligence of the two parties and make our decision.

  But what's with this? The defendant isn't necessarily negligent here-- they're just strictly liable. How do we perform such a comparison? Well, it turns out we talk about "comparative responsibility" in this context as a result. Not only that, but if the plaintiff's negligence in use of the product is a partial defense, we don't have very strict liability.

  In practice, manufacturing defects are generally grounds for strict liability, and it's pretty rare to have a plaintiff who is being very negligent in the use of the product. So this doesn't really come up that often.

  So, does a comparative responsibility approach overrule Keen? Yes and no, it seems. On the one hand there can be discussion of comparative fault. But the plaintiff's failure to discover a defect is not a breach of duty, and it's not a defense, and that means that Keen's holding is preserved. Basically, the plaintiff is not at fault for accepting a product at face value.

• So we don't burden plaintiffs with the duty to seek out potential defects, but their usage of a product that they know to be defective is subject to the rules of comparative responsibility. And in Sanchez, the plaintiff's conduct went well beyond reasonably safe usage of the car. The car was defective, but the plaintiff's award should be reduced because his conduct was in some way causative of the harm.
• What about defects that don't cause the injury (the plaintiff did this), but the defect aggravated the injory (it should have been minor)? Back with comparative negligence.