CHAPTER 7
Business Torts and Product Liability
Chapter Goals
In this edition, instructors can expand their coverage to include an overview of torts, focusing on torts in a
business context and including both torts against persons and against property. Relative to the bulk of the
topics in this text, tort law is accessible and inherently interesting to students. After the overview, the
subject turns to product liability law (including warranties). The key to success with this material is an
effort to relate the cases to the students’ lives. Close attention should be given to the cases. By
supplementing the cases with the students’ anecdotes, hypotheticals and scholarly sources, a rich,
multifaceted “product” can emerge. Here the belief is that the instructor would be particularly open to the
students’ comments. Indeed, those comments should be aggressively pursued so that their potential for
complete class involvement can be realized.
Another specific hope is that the instructor will discuss the important philosophical and economic issues
that are addressed in Parts Three and Four. The competing considerations present an unusually fertile
opportunity for debate. The issues involved are of importance to the students both as consumers and as
future business persons.
Chapter Learning Objectives
After completing this chapter, students will be able to:
1. Compare and contrast the three fundamental kinds of torts: intentional, negligent, and strict liability.
2. Describe selected intentional torts against persons including battery, assault, fraud, invasion of
privacy, intentional infliction of emotional distress, and defamation.
3. Describe selected intentional torts against property such as trespass and nuisance.
4. Identify selected intentional tort defenses.
5. Discuss the impact of product liability on business practice.
6. Identify the requirements of a successful negligence claim.
7. Differentiate between types of negligence claims emerging from defective products.
8. Analyze whether negligence defenses may be successfully asserted in a negligence claim.
9. Compare and contrast claims based on express warranties and implied warranties.
10. Identify the elements of the strict liability cause of action.
11. Identify the defenses available in strict liability cases.
12. Evaluate arguments for and against tort reform.
Chapter Outline
Practicing Ethics: Trampled to Death
Jdimytai Damour was was working at Long Island, New York, Walmart for one week through a temporary
agency. Damour was trampled to death by the unruly crowd of an estimated 2,000 who gathered outside
the Walmart doors awaiting the store’s early opening on Black Friday, 2008 The crowd, some of whom
had been waiting for many hours, pushed against the double glass doors. Damour, and six to 10 other
Walmart employees pushed back from the inside, but at 4:55 a.m., the doors bowed in and the shoppers
surged through crushing Damour to his death and injuring others. Damour had no experience with crowd
control and reportedly had not been trained for that purpose. Crowd control barriers were not used and
security personnel reportedly were inside the store rather than being outside to monitor and manage the
crowd. Police had been on the scene for 30 minutes at 3 a.m., but left as the crowd of 400 at the time was
orderly. Walmart argued that it had taken appropriate and sufficient safety measures, but authorities
subsequently questioned those measures and compared them unfavorably with other retailers’
approaches.
Part One—Torts: An Introduction
The discussion starts by distinguishing between torts and crimes and recognizing that the same behavior
may be both a tort and a crime. The concepts of compensatory and punitive damages are also
introduced.
I. Tort Categories
Fundamentally, torts are of three kinds: (1) intentional, (2) negligent, and (3) strict liability. Intentional torts
involve voluntary acts that harm a protected interest. Negligence involves situations in which harm is
caused accidentally. Strict liability is, in essence, a no-fault concept where an individual or organization is
responsible for harm without proof of carelessness.
II. Tort Law
A. Selected Intentional Torts against Persons
Battery
Intentionally touching another in a harmful or offensive way without legal justification or the consent
of that person is a battery. Merely touching another’s clothing or touching an occupied car may
constitute a battery. Post-text writing Update: On August 25, 2011 a Georgia jury acquitted the
professor of battery charges. See www.insidehighered.com/news/2011/08/25/
jury_rejects_charges_against_professor_in_case_of_student_laptop
Assault
Intentionally causing another to reasonably believe that he or she is about to be the victim of a
battery is an assault. The battery need not occur and the victim need not be frightened, but an
assault nonetheless transpires if the victim reasonably anticipated a substantially imminent battery.
False Imprisonment
False imprisonment occurs when someone is intentionally confined against his or her will; that is,
his or her freedom of movement is restricted.
Nine Hours on Grounded Plane: False Imprisonment?
Catherine Ray and her husband were flying from Oakland, California, to Dallas, Texas when their
American Airlines plane was rerouted to Austin, Texas, because of bad weather in Dallas. The
weather problems had closed the Dallas airport. After an hour on the ground, a bus took some
passengers to the terminal, but Ray and her husband chose not to deplane because, according to
Ray’s testimony, the pilot said the flight would likely resume in about an hour and anyone who left
the plane “would be on their own.” Another bus arrived and, according to Ray, passengers were
told that bus offered their last chance for departure. The Rays decided to remain on the plane.
Lightning in Austin delayed ground crew work, but at about 9 pm, the plane was taken to a gate
where Ray and all other passengers deplaned. Ray and her husband decided to spend the night in
the terminal. They flew from Austin the following morning. Ray subsequently filed a civil action for
false imprisonment, among other claims.
Fraud
Intentional misrepresentations of facts, sometimes identified by the formal title of deceit, can lead to
tort claims. The general test for fraud:
A material fact was misrepresented
The misrepresentation was intentional
The injured party justifiably relied on the misrepresentation
Injury resulted
Father of the Child
Peters told Dier that he was the father of her baby. Dier paid child support. Through paternity tests,
however, he learned he was not the father
Defamation
Uttering an untruth about another may constitute a tort. Slander is the spoken form of the tort of
defamation. Libel is defamation in print or some other tangible form such as a picture, movie, or
video. The basic test for establishing defamation includes:
A false statement
Harm to the victim’s reputation
Publication of the statement
Any living person or any organization can be the victim of defamation, although public figures, such
as politicians or actors face the additional burden of proving malice if they are to be successful in a
defamation claim. Libel or slander about a company’s products or property often is treated as the
tort of injurious falsehood.
Some statements, however, are so inherently damaging that actual injury need not be shown.
Those statements are labeled slander per se and include allegations of serious sexual misconduct,
commission of a serious crime, professional incompetence, or having a loathsome disease.
Truth acts as a complete defense to a defamation claim. Furthermore, many statements are
protected because of the circumstances in which they are made. These protections can be either
absolute or qualified privileges. An absolute privilege to defame includes, for example, remarks by
government officials in the course of their duties or by participants in a trial. A qualified privilege to
defame protects, most notably, former employers providing references for a job applicant.
An Angry Dad
A father who represented his daughter, a former Applebee’s employee, in her sexual harassment
claim against Applebee’s responded online to claims of an Applebee’s franchise owner regarding
treatment of employees.
Source: Mary Pat Gallagher, “Applebee’s Restaurateur… Over Internet Post Charging
Harassment,” Corporate Counsel, May 20, 2009.
Invasion of Privacy
Courts recognize a right of recovery in tort law when people become victims of some kind of
unconscionable exposures of their private lives. Invasion of privacy takes four forms:
Misappropriation of a person’s name or likeness: When an individual’s name or image is
wrongfully used without permission for commercial purposes (called a misappropriation) that
person probably has a cause of action for invasion of privacy.
Intrusion: An intentional invasion of a person’s solitude is labeled an intrusion if it would be
highly offensive to a reasonable person. Physical intrusions such as opening an employee’s
mail or more subtle strategies such as an electronic probe of an employee’s bank account
are examples of tortious intrusion.
Public disclosure of private facts: Certain elements of one’s life, such as debt payment
practices or sexual preferences, are, with rare exceptions, no one else’s business. In these
cases, the truth may not constitute a complete defense.
False light: When claims are published about another that have the effects of casting the
victim in a false light in the public mind, a tort claim may emerge. The courts have struggled
to differentiate defamation and false light claims.
Intentional Infliction of Emotional Distress
Employment terminations (firings), drug tests, and sexual harassment cases have become
particularly fertile grounds for emotional distress claims, although it should be understood that the
courts have demanded compelling evidence of outrageous conduct causing severe emotional pain.
See Abdul-Malik v. Airtran Airways, 678 S.E.2d 555 (2009); cert den. Mahmoud Abdul-Malik v.
Airtran Airways, Inc., 2009 Ga. LEXIS 711 (Ga. S. Ct.).
B. Selected Intentional Torts against Property
Four prominent tort claims arising from wrongs to property include:
Trespass to real property
Trespass to personal property
Conversion
Injurious falsehood or trade libel
Nuisance
Legal Briefcase: Michela Gallagher v. H.V. Pierhomes, LLC et al. 957 A.2d 628 (Md. Ct. of Spec.
App., 2008)
C. Selected Intentional Tort Defenses
Consent
If one gives consent to the use of one’s picture in an advertising campaign and subsequently feels
that his or her public image has been harmed, then it would be difficult to pursue a tort. If one gives
permission under mistake, fraud, or duress, then the consent will not be meaningful.
Mistake
False imprisonment does not occur unless the detention was unreasonable. However, a mistake
can be a good defense, particularly in instances in which events happen rapidly.
Necessity
In what one would broadly label emergency situations, one may intentionally commit a tort and yet
be excused.
Self-defense
The Katko case that follows looks at the self-defense theme.
Legal Briefcase: Katko v. Briney, 183 N.W.2d 657 (Ia. S.Ct. 1971)
Part Two—Product Liability
I. Introduction
Product liability lawsuits deal with cases where buyers, users, and in some cases bystanders who are
injured or killed by defective products. Those harmed may have causes of action in torts (negligence or
strict liability) or contracts (breach of warranty). If so, the manufacturers, distributors and sellers of that
product must then defend themselves., [For a product liability overview, see
http://topics.law.cornell.edu/wex/Products_liability]
Product Liability and Business Practice
When Blitz USA, manufacturer of the familiar red plastic gasoline cans, filed for bankruptcy and
shut its Oklahoma factory, The Wall Street Journal described Blitz and its employees as the
“latest victims” of trial lawyers after spending millions on product liability lawsuits, which, in turn,
increased its product liability insurance costs. Plaintiffs in these lawsuits sought damages for
serious burn injuries and deaths suffered when Blitz gas cans exploded after gasoline vapors
outside the can were ignited. The claims alleged that these “flashback” explosions could have
been prevented had “flame arrester” shields been installed in the cans. [For a general database
on defective products, see http://consumerlawpage.com/resource/defect.shtml]
Justice for Consumers and for Toyota
Product liability law can sometimes be devastating to a company or industry. Toyota’s massive
product liability dispute has blemished the company’s quality image while also apparently
threatening the safety of many Toyota customers. Toyota has faced allegations of causing
hundreds of injuries and deaths. The plaintiffs attribute the problem to defects in the electronic
throttle control, but a federal study released in 2011, concluded that the likely culprits were
mechanical defects in the accelerator system and floor mats that trapped the accelerator pedal.
Toyota reportedly discussed the override system with the federal government in 2007 but did not
begin installations until 2010. one case, a $10 million settlement was reached following the
deaths of four in a California accident.
In October 2013, an Oklahoma jury found Toyota’s electronic throttle system led to injury and
death in a car crash. At this writing, Toyota is seeking to negotiate a settlement of hundreds of
personal injury and wrongful death actions.
II. Negligence
The three major product liability causes of action are negligence, breach of warranty, and strict liability.
Negligence is a breach of the duty of due care. A negligent act is the failure to do what a reasonable
person would do or doing what a reasonable person would not do. In designing, manufacturing, testing,
repairing, and warning of potential dangers, those in the chain of production and distribution must meet
the standard of the reasonably prudent person. Failure to do so constitutes negligence.
Historically, consumers dealt face-to-face with producers and could bring breach of contract claims if
injured by a defective product. In a famous 1916 decision (MacPherson v. Buick Motor Co), the New York
high court ruled that a consumer could bring a negligence claim against the manufacturer of a defective
automobile even though the consumer did not purchase the car directly from that manufacturer. That view
has since been broadly adopted, thus permitting victims of negligence to bring actions against all careless
parties in the chain of production and distribution.
Donald Trump Owes a Duty?
A compulsive gambler asks a Trump casino to evict him if he ever entered to gamble. He later gambled at
the casino, suffering substantial losses that apparently led him to rob banks to cover his losses. While in
prison, he filed suit against the Trump casino claiming it was negligent in failing to keep him from
gambling there.
Source: Mark Merrill v. Trump Indiana, Inc., 320 F.3d 729 (7th Cir. 2003).
A. Negligence Test
To establish a successful negligence claim, the plaintiff must meet each of the following requirements:
Duty: The plaintiff must establish that the defendant owed a duty of due care to the plaintiff. In
general, the standard applied is that of the fictitious reasonable man or woman. That
reasonable person acts prudently, sensibly, and responsibly.
Breach of duty: The plaintiff must demonstrate that the defendant breached the duty of due
care by engaging in conduct that did not conform to the reasonable person standard. Breach of
the duty of due care may result from either the commission of a careless act or the omission of
a reasonable, prudent act.
Causation:
oActual cause: Did the the defendant’s breach of the duty of due care in fact cause the
harm in question? Commonly “the but for” test is applied to determine cause in fact.
oProximate cause: The plaintiff must establish that the defendant’s actions were the
proximate cause of the injury. As a matter of policy, is the defendant’s conduct sufficiently
connected to the plaintiff’s injury as to justify imposing liability?
Injury: The plaintiff must have sustained injury, and, due to problems of proof, that injury often
must be physical injury. [For a tort law library, see http://www.findlaw.com/01topics/22tort]
Legal Briefcase: Hoyt v. Gutterz Bowl & Lounge, 829 N.W.2d 772 (Ia. S.Ct. 2013)
B. Classes of Negligence Claims
Negligence claims emerging from defective products fall into the following three categories of analysis:
(1) manufacturing defects, (2) design defects, and (3) inadequate warnings.
Manufacturing Defects
McDonald’s sells a billion cups of coffee each year. Stella Liebeck ordered coffee at an
Albuquerque, New Mexico, McDonald’s drive-through. The dashboard of the car was slanted so
that the coffee could not be set on it. Liebeck, therefore, placed the coffee between her legs, and
while trying to get the top off the container, she spilled the coffee on her lap, resulting in
third-degree burns. She was hospitalized. Liebeck sued, accusing McDonald’s of gross negligence
for selling coffee that was “unreasonably dangerous” and “defectively manufactured.”
http://www.lectlaw.com/files/cur78.htm
http://www.nolo.com/legal-encyclopedia/accident-law/]
McDonald’s “Exploding” Chicken Sandwich
Frank Sutton bought a McDonald’s fried chicken sandwich. When he bit into the sandwich, Sutton
said, “the grease from the inside of the chicken sandwich spread out all over my bottom lip, my top
lip, down onto my chin.” His wife dabbed his face with ice as blisters formed on his lips. Sutton
reported the incident to a pair of McDonald’s employees, one of whom reportedly said, “This is
what happens to the sandwiches when they aren’t drained completely.” Sutton’s lips continued to
bother him. Sutton thereafter sued McDonald’s and the local franchise owner, Roth, for negligence,
among other claims.
Res Ipsa
Many courts have adopted the doctrine of res ipsa loquitur (the thing speaks for itself), which in
some cases permits the court to infer the defendant’s negligence even though that negligence
cannot be proved. A showing of res ipsa loquitur requires that:
The injury was caused by an instrumentality under the control of the defendant
The accident ordinarily would not happen absent the defendant’s negligence
There is no evidence of other causes for the accident
Design Defects
Manufacturers must think about designing products to anticipate and avoid consumer injury.
Two principal lines of analysis have emerged in these cases:
The risk/utility test holds that a product is negligently designed if the benefits of a
product’s design are outweighed by the risks that accompany that design.
The consumer expectations test imposes on the manufacturer a duty to design its
products so that they are safe not only for their intended use but also for any reasonably
foreseeable use.
In 1997 members of the American Law Institute, a group of legal experts, approved the
Restatement of the Law Third, Torts: Products Liability, which does not constitute law but
represents those experts’ best judgment about what the law should be. Plaintiffs would need to
show that some better design was available and was not incorporated in the product in
question.
Legal Briefcase: Marilyn Merrill v. Navegar Inc., 28 P.3d 116 (Cal. S.Ct. 2001)
Warnings
A product may be considered defective because of inadequate warnings when reasonable
warnings would have reduced or avoided the foreseeable risks and the failure to warn resulted in a
product that was not reasonably safe.
Legal Briefcase: White v. Victor Automotive Products 2010 Mich. App. LEXIS 914
(unpublished)
C. Negligence Defenses: Introduction
Even if the plaintiff has established all of the necessary ingredients in a negligence claim, the
defendant may still prevail by asserting a good defense. The two most prominent legal defenses in
these cases are:
Comparative or contributory negligence
Assumption of the risk
A trampoline at the Beta Theta Pi fraternity house at the University of Denver led to a broken neck and
paralysis when a 20-year-old fraternity member, Oscar Whitlock, unsuccessfully attempted a flip at 10
pm in the dark. At trial the jury found the university 72 percent at fault, with the remainder of the blame
lying with the plaintiff/student.
D. Negligence Defenses: Rules
Comparative Negligence
Most states have adopted comparative negligence as a defense. Though the formula varies from
state to state, typically the plaintiff’s recovery is reduced by a percentage equal to equal to the
percentage of the plaintiff’s fault in the case. In many states, however, when the plaintiff is more
than 50 percent at fault, she or he will be barred from any recovery.
Contributory Negligence
Rather than employing the comparative negligence doctrine, a few states continue to follow the
historic rule that any contribution by the plaintiff to his or her own harm constitutes a complete bar
to recovery.
Assumption of Risk
A plaintiff who willingly enters a dangerous situation and is injured, in many states, will be barred
from recovery. Increasingly, states that have adopted the comparative negligence doctrine do not
treat assumption of the risk as a complete bar to recovery, but rather as a factor in negligence
balancing.
Do Cheerleaders Assume the Risk of Injury?
Gabriella Ballou, then-9th grader and experienced cheerleader, allegedly improperly performed the
“prep cradle twist” causing her head to miss the safety mat and strike the floor. An expert witness
testified that the stunt was inadequately supervised, among other problems.
Source: Ballou v. Ravena-Coeymans-Selkirk School District, 72 A.D.3d 1323 (S.Ct. App. Div. 3d
Jud. Dept. 2010).
III. Warranties
A warranty is simply a contractually based guarantee. If the product does not conform to the standards of
the warranty, the contract is violated (breached) and the wronged party is entitled to recovery. [For the
UCC, in total, see http://www.law.cornell.edu/ucc]
A. Express Warranties
An express warranty exists if a seller of goods states a fact or makes a promise regarding the
character or quality of the goods. Express warranties by the seller by the seller are created as follows:
Any affirmation of fact, or promise made by the seller to the buyer which relates to the goods
and becomes part of the basis of the bargain creates an express warranty that the goods shall
conform to the affirmation or promise.
Any description of the goods which is made part of the basis of the bargain creates an express
warranty that the goods shall conform to the description.
Any sample or model which is made part of the basis of the bargain creates an express
warranty that the whole of the goods shall conform to the sample or model.
Puffing
Perhaps the area of greatest confusion in determining the existence and coverage of an express
warranty is distinguishing a seller’s promise from a mere expression of opinion. The latter, often
referred to as sales talk or puffing, does not create an express warranty. An expression of opinion
coming from an expert may well create an express warranty because the buyer should reasonably
be able to rely on the expert’s affirmations. That would particularly be the case if the buyer is not
knowledgeable about the product.
B. Implied Warranties
When a seller enters a contract for the sale of goods an implied warranty arises by operation of law.
Two types of implied warranties are provided:
UCC 2-314. Implied Warranty: Merchantability; Usage of Trade: (1) Unless excluded or
modified (Section 2–316), a warranty that the goods shall be merchantable if the seller is a
merchant with respect to goods of that kind.
UCC 2-315. Implied Warranty: Fitness for Particular Purpose: when the seller at the time of
contracting has reason to know any particular purpose for which the goods are required and that
the buyer is relying on the seller’s skill or judgment select or furnish suitable goods, there is
unless excluded or modified under the next section an implied warranty that the goods shall be
fit for such purpose.
C. Disclaimers
Express warranties may be disclaimed (excluded) or modified only with great difficulty. When a buyer,
before entering a contract, inspects the goods (or a sample thereof) or declines to inspect, no implied
warranty exists with regard to defects that should have been apparent on inspection.
D. Magnuson-Moss Warranty Act
The federal Magnuson–Moss Warranty Act extended and claried UCC warranty rules. The
act, administered by the FTC, applies only to consumer products and only to written warranties. The
effect of the Magnuson–Moss Act has not been entirely consistent with Congress’ hopes. In practice
many sellers have either offered limited warranties or eliminated them entirely.
In many states, implied warranty law has been incorporated within broader product liability actions
reflecting an emerging preference for treating personal injury and property damages as torts rather
than contract-based (warranty) claims.
Legal Briefcase: Hodges v. Johnson 199 P.3d 1251 (Kansas S.Ct. 2009)
Skoal and Copenhagen and Death?
Bobby Hill of Canton, North Carolina, began chewing tobacco at age 13. He died in 2003 at age 42.
U.S. Smokeless Tobacco Co., makers of Skoal and Copenhagen, agreed in 2010 to pay Hill’s family
$5 million to settle the relatives’ wrongful death claim.
Source: Associated Press, “First Lawsuit Won on Chewing Tobacco,” Des Moines Register, December
8, 2010, p. 7A.
IV. Strict Liability
A. Strict Liability: Overview
Negligence and warranty claims are helpful to the harmed consumer. However, rapid changes in the
nature of commercial practice, as well as an increasing societal concern for consumer protection, led
the legal community to gradually embrace yet another cause of action. Strict liability in tort offers the
prospect of holding all of those in the chain of distribution liable for damages from a defective product,
rather than imposing the entire burden on the injured consumer.
Legal Briefcase: Calles v. Scripto-Tokai, 832 N.E.2d 409 (Ill. S. Ct. 2007)
B. Strict Liability: Coverage
All of those engaged in the preparation and distribution of a defective product may be liable for any
harm caused by the defect, regardless of proof of actual fault. Furthermore, the courts have extended
strict liability coverage to reach injured bystanders. Coverage generally extends to both personal
injuries and property damage, but in some states the latter is excluded. Some states limit strict liability
recovery to new goods, and some have limited liability to a designated period (for example, 15 years)
after the manufacture or sale of the product.
Furthermore, the Restatement of the law Third, Torts recommends applying strict liability claims to
manufacturing defects but not to design and warning defect cases. The courts may choose, to stick
with the current expansive use of the strict liability doctrine.
C. Strict Liability: Defenses
Assumption of risk and product misuse are both good defenses if factually supported, in many states
can act as a complete bar to strict liability recovery. Some courts, however, hold those in the chain of
distribution liable for foreseeable misuse. Because strict liability is a no-fault theory, contributory
negligence ordinarily is not a recognized defense.
“Video Games and The Basketball Diaries”
Michael Carneal, a 14-year-old high school freshman in Paducah, Kentucky, brought a .22-caliber
pistol and five shotguns to Heath High School on December 1, 1997, where he shot and killed three
students and wounded a number of others. Carneal regularly played violent video games, viewed
violent Internet sites and also watched violent movies including The Basketball Diaries, in which a high
school student dreams of killing his teacher and other students. The parents of the dead children sued
several video game, movie production, and Internet content providers raising negligence and strict
liability claims.
Part Three—Product Liability and Public Policy
Giant tort awards involving products such as asbestos and breast implants have bankrupted businesses.
When one hears about a $28 billion punitive damage award in 2002 for a 64-year-old smoker suffering
from lung cancer, one may wonder if the justice system has lost its bearings. What public doesn’t
understand is that those giant awards are almost always dramatically reduced. Furthermore, awards in
big class action cases often come in the form of product coupons or gifts to charity. The threat of tort
litigation significantly affects business decision making and, in some instances, actually prevents products
from reaching the market.
For Tort Reform
Consultants Towers Watson estimated that 2010 tort costs (not limited to product liability) for the
United States totaled. $$264.6 billion: a sum amounting to a “tort tax” of $857 per year for every
American. As a result, critics say, American businesses must struggle with rising costs,
innovation is reduced, and new jobs are less plentiful. Critics are particularly frustrated that
much of the money goes to lawyers rather than to the injured plaintiffs. [For further criticism of
tort claims and our legal system generally, see http://overlawyered.com or
www.legalreformnow.com.
Against Tort Reform
Can people rely on the market and managerial ethics to protect themselves from dangerous
products? Lawsuits consuming less than 2 percent of spending, constitute a modest part of the
cost of doing business; and studies show that insurance costs do not decline appreciably when
damages are capped. Furthermore, only about 3 percent of tort cases ever make it to trial; those
cases that are settled before judgment often involve reasonable sums of money and punitive
damages are awarded in only about 3.3 percent of tort cases won by plaintiffs. Even ardent
defenders of tort practice often agree, however that the system needs to be improved so that
lawyers do not gobble up so much of the money themselves and so that the system produces a
more consistent, predictable form of justice.
Kids Need to Swing?
U.S. playground safety standards, widely adopted in the 1990s, called for new safety surfaces
to cushion falls with the result that the swings became very costly. A swing set once costing
$800 now costs $4,000. Thus, government rules and the threat of lawsuits have made
playgrounds safer while reshaping childhood fun and virtually eliminating the challenge of
overcoming the terror of big swings and slides.
A. Big Case: Lead Paint?
Should paint manufacturers be responsible for the harm caused by paint applied decades back by
willing consumers before anyone fully understood the long-term hazards? Even if one can establish
responsibility, how does one apportion damages when one cannot identify the specific producers of
the paint in question? Or should one expect paint manufacturers to share the damages burden
according to the percentage each holds in the market (a product liability claim labeled market share
liability)?
Fast Food = “Fat” Lawsuits?
Fortune magazine’s February 2003 issue asked “Is Fat the Next Tobacco?” Fortune and many other
publications suggested that fast-food companies might soon be buried in lawsuits like those attacking
the tobacco industry. Although the prospect of blaming McDonald’s, Wendy’s, and others for obese
people’s health problems caused dismay, those lawsuits, for the most part, have not materialized.
Furthermore, at least 24 states have passed “cheeseburger bills” providing some protection for
fast-food companies facing obesity lawsuits. However, in vetoing the Minnesota state legislature’s
Personal Responsibility in Food Consumption Act, Minnesota governor Mark Dayton observed that
although he supported the bill’s intent, he believed the bill would create too broad an exemption from
liability for food manufacturers and sellers.
I. Too Much Law?
Clearly, legal intervention often is necessary to achieve justice. At the same time, that
intervention sometimes can be inefficient and unproductive. [For the American Tort Reform
Association, see http://www.atra.org]