RUTGERS LAW SCHOOL

Torts Assignments -- Fall Semester, 2014

Professor Howard Latin

 

Page references are to Richard Epstein and Catherine Sharkey,
 Cases and Materials on Torts, 10th Edition.

(T) = top of the page, (M) = middle of the page, (B) = bottom of the page

 

I am leaving last year's assignments on this web page to serve as a general syllabus describing most topics we are
likely to cover this semester.  I vary the materials each year to some degree to reflect recent judicial cases, current
events, and student interests, but there are many core Torts issues that must be addressed every year.  The 2012
assignments are below the rows of asterisks, and the current 2014 assignments will be posted each week immediately
below this comment.

I have added a short general essay on how entering law students can learn to read judicial opinions, which was written
by Orin S. Kerr, a helpful American law professor.  This essay is intended to lay out the most basic basics of legal study
and probably would not be useful for anyone with any kind of appreciable legal background, but perhaps it can fill in
some blanks for new students.  I suggest you download it and read the first few pages to see if it is worthwhile for you.
It is not a mandatory assignment.  You can download the essay here:   

 

Weekly Course Assignments:
 

Tuesday, August 26, 2014, and Thursday, August 28th:  An Introduction to the Negligence Liability Theory

Pp. 129-133(T), 129-133(T), 129-133(T), 129-133(T), 129-133(T).  

The Repetition Is Entirely Deliberate -- You Should Always Reread the Assigned Cases Carefully.

Pp. 139(T)-141(B), 139(T)-141(B), 139(T)-141(B).  Do these cases reflect different principles or
essentially the same legal treatment?

Pp. 125(T)-126(B)  This is a short excerpt from Justice Holmes' famous book, The Common Law,
on "fault," foresight, and tort liability.

Pp. 87(B)-93.  These pages present a very brief summary of the Historical Forms of Action.

Pp. 103-110(T), 103-110(T), 103-110(T).  What are the specific legal grounds on which each
of the five Judges based his decision in this famous case?  These are called the "holding" of the
judicial opinion, but the judges did not agree on what the holding should be, or why. Cases in which
judges disagree are more likely to appear in legal casebooks than cases in which there is unanimity
in the applicable judicial principles. So expect frequent judicial disagreements and resulting mistakes,
ambiguity, and confusion.

 

Tuesday, September 2d, and Thursday, September 4th: Intentional Torts

Prima Facie Cases:  Pp. 14(M)-16(M), 4(T)-8(M), 55(B)-58(M), 59, 68(B)-70(T)  A "prima facie
case" describes all of the legal elements necessary for the plaintiff to win any particular cause of
action as long as the defendant introduces no effective defenses. For each intentional tort, such
as battery, assault, intentional destruction of property, intentional infliction of emotional distress,
etc., there is a specific set of applicable elements -- issues the plaintiff must address and establish
to prevail on each intentional tort complaint.

Consider the assigned cases as a set, although the specific intentional torts differ in details. What
INTENT must be intended for the law to impose intentional tort liability?  In other words, what
must the defendant intend before the application of this liability theory would be appropriate?

The Torts of Trespass and Conversion  11(M)-(13(B), 602(M)-603, 605 (Note 2-Holmes Quote).

Defenses: Identify the defenses raised in Mohr and Vosburg, also the defenses on pp. 21(M)-24(T),
24(B)-25(T), 32(M)-36(T), 40(B)-43(M), 44(M)-47(M). Try to determine and explain the legal
limits placed on each defense.

 

Tuesday, September 9th, and Thursday, September 11th: Conflicting Liability Theories and the Vincent Case

Pp. 44(M)-50(M), 44(M)-50(M), 44(M)-50(M), 44(M)-50(M). Do you believe the Vincent case was correctly decided, and
why or why not?  Please make up a WRITTEN list of specific arguments supporting your view on how the case should
have been decided.  Our discussion of the Vincent judgment involves a comparison of potential intentional tort analysis,
negligence analysis, and strict liability analysis.  You need to decide which liability approach the court adopted and which
approach you believe would have been the best one choice, and why.  In addition to the substantive comparison of Tort
liability theories, we will emphasize the pedagogical issues of how to frame effective legal arguments, how to turn arguments
around to see if they really hold water, and how to balance multiple arguments that may cut for or against a particular position.
Vincent is a great case for teaching legal analytical and argumentation skills every student should try hard to acquire.

As one example of an academic assessment of Vincent, here are two paragraphs from an article by Richard Epstein, the editor
of your casebook. In the 1970s, Epstein was a proponent of strict liability based on causation, not fault:

 

Tuesday, September 16th, and Thursday, September 18th:  Negligence and Reasonable Care

Compare Vincent with Blyth, pp. 169(M)-171(M).  What does Judge Alderson mean when he says: "I am of the opinion that there was
no evidence to be left to the jury?"

Pp. 171(M)-180(M), 181(B)-183(T), 190(M)-193(M).  Why are these cases presented in the casebook, and what principle is each case
meant to demonstrate?  We are going to move through this material very rapidly because you have already had a basic introduction
to the negligence liability theory.  How do these cases fit in, or conflict, with negligence?

Pp. 147(B)-150, 154(M)-158, 28(M)-30, 161(B)-165(M), 166(M)-167, 168(M)-169(M).  These cases deal with the "Reasonably
Prudent Person" standard, which indicates what types of people we should look at to decide if a party's behavior has shown "reasonable
care."  Please be prepared to discuss all of the special standards (children, insane people, dodderers, alcoholics, rich people, etc.) this
coming week.

 

Tuesday, September 23d, and Thursday, September 25th:  Expert Testimony and Legal Custom

In some mysterious way, the Quintal and Lucy Webb cases disappeared from my web site during the past 18 months.  With assistance
from one of the students in this class, I was able to find the cases and to edit them down by a reasonable amount. However, Justice
Peters' opinion relies heavily on the doctrine of Res Ipsa Loquitor, which we have not yet covered.  As a result, I'm changing the
sequence of materials to address Res Ipsa before the two assigned negligence cases.  This means we will not get to Legal Custom
until the following week. I hope to finish the discussion of Res Ipsa on Tuesday, and I also hope there will be peace on earth.

Res Ipsa Loquitur:  PP 271(B) - 274(M), 274(B) - 275(B), 280-283, 289 - 293 (M).

We will devote all of Thursday to the Quintal and Lucy Webb cases. If the Quintal decision had been a law school exam question, Justice
Peters' opinion would have received a C+ grade at best, while Justice Traynor's concurring opinion would have received an A or A-.  Why
is Justice Traynor's legal analysis clearly superior to the Peters plurality opinion analysis?  Answering this question should provide you
with valuable insights into effective exam-taking technique.  What is the role of the judge in requiring or restricting expert testimony on
appropriate issues?



Tuesday, September 30th, and Thursday, October 2d: Legal Custom, Medical Practice Custom, and Medical Malpractice "Reform" Proposals

For Tuesday, read the material on Legal Custom: Pp. 194(M)-200(B) and the Pike1898 medical malpractice decision. To the extent we have any
time left over, we will discuss Medical
Informed Consent:  Pp: 219(B)-232(B)
.

On Thursday, we will finish whatever Tuesday assignments have not yet been completed, and then we will devote the remainder of the class session
to the controversial issue of
Medical Malpractice "Reform."  A couple of years ago, I put together a short file of articles on the debate over health
care policies and the role of medical malpractice law in our society.  If you are interested in this subject, you should also read the Leonhardt article
(assessment & critique of health care positions).  The only really new issues this year involve the implementation and impacts of "Obamacare."

Students who need to, or want to, review the 9/25 class on the Quintal and Lucy Webb cases can find the videotape online at:

                                                                      http://lawevents.rutgers.edu/vp/hl14/

I suggest you use a pair of headphones to listen to this lecture, because the volume and clarity of the recording seem to be better with them.
However, they aren't absolutely essential.

 

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***************************The following assignments are from 2012*******************************
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Tuesday, August 21, 2012:  Introduction to Negligence Liability Theory

Pp. 129-133(T), 129-133(T), 129-133(T), 129-133(T), 129-133(T).  

The Repetition Is Entirely Deliberate -- You Should Always Reread the Assigned Cases Carefully.

Pp. 139(T)-141(B), 139(T)-141(B), 139(T)-141(B).  Do these cases reflect different principles or
essentially the same legal treatment?

Pp. 125(T)-126(B)  A short excerpt from Justice Holmes' famous book on "fault," foresight, and tort liability.

 

Thursday, August 23, 2012:  Introduction to Strict Liability Theory

Pp. 87(B)-94.  Very short summary of the Historical Forms of Action.

Pp. 103-110(T), 103-110(T), 103-110(T).  What are the specific legal grounds on which each
of the five Judges based his decision in this famous case?  These are called the "holding" of the
judicial opinion, but the judges did not agree on what the holding should be, or why. Cases in which
judges disagree are more likely to appear in legal casebooks than cases in which there is unanimity
in the applicable judicial principles. So expect frequent judicial disagreements and resulting mistakes,
ambiguity, and confusion.

 

Tuesday, August 28th, and Thursday, August 30th:  Intentional Torts

Prima Facie Cases:  Pp. 14(M)-16(M), 4(T)-8(M), 55(B)-58(M), 59, 68(B)-70(T)
Trespass and Conversion  11(M)-(13(B), 602(M)-603, 605(N2-Holmes Quote)

What INTENT must be intended for the law to impose intentional tort liability?  In other words, what must the
defendant intend before the application of this liability theory would be appropriate?  Consider the assigned
cases as a set or group and compare them to test your understanding of what must be intended in an Intentional
Tort case.

Defenses: Mohr, Vosburg, pp. 21(M)-24(T), 24(B)-25(T), 32(M)-36(T), 40(B)-43(M), 44(M)-47(M)

Identify the defenses at issue in these cases, and try to determine the limits placed on each defense.

 

Tuesday, September 4th, and Thursday, September 8th: Necessity & Legal Policies

Pp. 44(M)-50(M), 44(M)-50(M), 44(M)-50(M), 44(M)-50(M). Do you believe the Vincent case was correctly decided, and
why or why not?  Please make up a WRITTEN list of specific arguments supporting your view on how the case should have been
decided.  Be sure you turn these arguments around and see if they apply equally to the other party's circumstances. Our analysis
of the Vincent judgment involves a comparison of a potential intentional tort analysis, negligence analysis, and strict liability
analysis.  Which of these legal approaches was adopted by the majority opinion in the Vincent case?  In addition to the
substantive comparison of Tort liability theories, we will emphasize the pedagogical issues of how to frame effective legal
arguments, how to turn arguments around to see if they really hold water, and how to balance multiple arguments that may cut
for or against a particular position.  Vincent is a great case for teaching legal skills every student should acquire and practice.

As one example of an academic assessment of Vincent, here are two paragraphs from an article by Richard Epstein, the editor
of your casebook, and in the 1970s a proponent of strict liability based on causation, not fault:


Is the argument in the second paragraph an effective one for resolving the Vincent case?  What happens when you turn this
argument around by switching the parties?


Tuesday, September 11th, and Thursday, September 13th:  Reasonable Care

Compare Vincent with Blyth, pp. 169(M)-171(M).  What does Judge Alderson mean when he says: "I am of the opinion that there was
no evidence to be left to the jury?"

Pp. 171(M)-180(M), 181(B)-183(T), 190(M)-193(M).  Why are these cases presented in the casebook, and what principle is each case
meant to demonstrate?  We are going to go through this material very rapidly because you have already had a basic introduction to the
negligence liability theory.  How do these cases fit in, or conflict, with negligence?

Pp. 147(B)-150, 154(M)-158, 28(M)-30, 161(B)-165(M), 166(M)-167, 168(M)-169(M).  These cases deal with the "Reasonably
Prudent Person" standard, which indicates what types of people we should look at to decide if a party's behavior has shown "reasonable
care."  I would like to finish these cases on Thursday, but there is a good chance that we will need part of the following Tuesday. Please
be prepared to discuss all of the special standards (children, insane people, dodderers, alcoholics, rich people, etc.) this coming week.

 

    Tuesday, September 18th, and Thursday, September 20th:  Judge, Jury and Expert Evidence

Pp. 169-170 (Blyth), 190-192(M) (Andrews), 262-265(M). These cases illustrate the role of the judge in evaluating the sufficiency of the
evidence in negligence cases in light of judicially-imposed standards for reasonable care.

Download the Quintal and Lucy Webb cases.  If the Quintal decision had been a law school exam question, Justice Peters' opinion
would have received a C+ grade at best, while Justice Traynor's concurring opinion would have received an A or A-.  Why is Justice
Traynor's legal analysis clearly superior to the Peters plurality opinion analysis?  Answering this question should provide valuable insight
into effective exam-taking technique.  What is the role of the judge in requiring or restricting expert testimony on appropriate issues?

For Thursday, read this material on Legal Custom: Pp. 194(M)-200(B).

 

Tuesday, September 25th, and Thursday, September 27th:  Medical Custom and Malpractice

Medical Practice:  Download the Pike1898 opinion and read pp. 206(M)-211(T), 212(M)-219(M).

 

Medical Informed Consent:  Pp: 219(B)-232(B). 

Medical Malpractice "Reform": 

I have put together a short file of recent articles and a Health Care Reform Overview zip file containing a number of essays, mostly from the
New England Journal of Medicine, describing competing visions and proposals on recent national health care debates.  If you are interested
in this subject, you should also read the Leonhardt article (assessment & critique of health care positions). 

The file Medical Policy Disputes contains a group of longer articles on health care system problems and malpractice effects distributed to
interested students in the 2008 class.  Click on the zip'd medical folder for a list of these numbered files, which deliberately reflect a wide range
of views about medical system problems and possible solutions. I think the short piece by Dr. Liang is probably the most balanced, but I doubt
that his middle-of-the-road recommendations could be adopted in practice.  The essay by Dr. Nehmer, an evening student at Rutgers Law
School a few years ago, was written as an independent study paper.  This material is optional and sadly inconclusive because people, including
experts, tend to see what they want to see or expect to see and believe whatever is consistent with their pre-existing perceptions.  It has proven
very difficult to change peoples' beliefs about the American medical system and the effects of malpractice litigation, as the previous several years
of legislative debates have amply demonstrated.

Let me make clear that this fairly large collection of materials about law and medical treatment policies is optional and inconclusive, despite the
efforts reflected in each essay. Students who are seriously interested in health care reform and medical malpractice should read most of these
materials AFTER their exams are over.  The first set of materials is from 2010 and 2011, the second set of materials is from 2009 and 2010,
and the last set of materials is from 2008 and 2009.  However, all of these discussions are still relevant to medical malpractice reform issues. 

 

Tuesday, October 2d, and Thursday, October 4th: Negligence Per Se and Res Ipsa Loquitur

We will go through the "neglience per se" material very rapidly, but it is an important means to determine "reasonable care."  Pp. 238(M)-
240(M), 247-252(T), 320-325(T).

Res Ipsa Loquitur involves reasoning by logical inference usually based on circumstantial evidence. Pp. 272(M)-275, 280-283, 285(B)-
286(T), 289-294(M), 298-299(T).

 

Tuesday, October 9th, and Thursday, October 11th:  Cause-In-Fact

Cause-In-Fact Introduction:  A showing of Cause-In-Fact is a requirement for every Torts case under every liability theory.  A
defendant may be found legally culpable (negligent, intentional, or subject to strict liability), but this actor will not be found liable unless
the culpable actions were a Substantial Contributing Cause of plaintiff's injuries. The term "substantial contributing cause" means that the
defendant's actions must have played a major role in bringing about the injury, but it does not have to be the only cause or even the
greatest cause of the plaintiff's damages.

In evaluating cause-in-fact issues, ask the following rule-of-thumb questions.  The difference between the answers to these questions
is the amount of harm that was "caused" by the defendant's wrongful behavior.

    What did the plaintiff have after the defendant's culpable actions?

    What would the plaintiff have had if the defendant had not behaved in a culpable manner?

Read pp. 380(B)-381(T), 382(T)-382(M), 382(B)-386(M), 422-426(T)

Shifting the burden of proof on causation:  387(T)-388(T), 402-404(T), 407-409(M), 410-421(M)

 

Tuesday, October 16th, and Thursday, October 18th:  Admissibility of Expert Testimony on Causation

This material on scientific and expert evidence is an introduction to one of the most important issues to emerge in civil litigation areas during the
past quarter-century.  The handout includes three federal cases on the admissibility of scientific evidence and three New Jersey cases on this issue.
We will pay especially close attention to the conflicting judicial treatments in the Joiner and Rubanick decisions, which both deal with PCB toxic
causation problems but in very different ways. There is also a short essay that discusses the federal treatment of scientific and technical evidence,
as imposed by the Daubert decision and its progeny.  We will try to finish these six cases on Thursday, but they are likely to require an hour or
two on the following Tuesday.  This is very important material that needs to be studied extremely carefully.

 

Tuesday, October 23d, and Thursday, October 25th:  Proximate Cause

Cause-in-Fact deals with how an accident or injury has come about.  Proximate Causation deals with how extensive or limited the defendant's
liability should be, if at all, for the consequences of the culpable act.  Proximate Causation
does not address how an injury is caused (in fact), but
whether the defendant should be held legally responsible for that injury.  There are two incompatible proximate cause tests that have been adopted
by different states (each state can have only one PC doctrine), and you must learn to deal with the resulting ambiguity as many thousands of other
law students have also had to do.  Some courts have used the term "proximate causation" to encompass both types of causation analysis, which is
a mistake.  The term "legal causation" encompasses both types of causation -- the events leading up to an injury, and the consequences the
defendant is, or is not, liable for after the culpable act.  The Palsgraf decision is among the most famous in American legal history.

Read pp: 446-448(M), 450(B)-451, 462(M)-466(M), 475-484, 466(B)-470(M), 472(M)-474.  Devote particular attention to the Cardozo
majority opinion and the Andrews dissenting opinion in Palsgraf, and to the Friendly excerpt in the Kinsman case.

"Superceding" or "Intervening" Cause: This doctrine applies when a culpable defendant would have been the proximate cause of the plaintiff's
injury, but the acts of a third-party or of the plaintiff may "break the chain of proximate causation" in an unforseeable way.  Read pp: 449-
450(T), 452(T)-453(T), 453(B), 455(M)-456(B), 457(M)-457(B), 460-462(M), 487(M)-493(M).

Proximate cause is a difficult subject and may require three class-days, but the remaining time in the course is limited and we will see how much
material we can cover this coming week.  Just consider that every lawyer and law student in the United States has had to learn to understand the
various proximate cause treatments.

 

Tuesday, October 30th:  Comparative Apportionment

Pp. 302(B)-303(B), 307(M)-312(M), 325(T)-327(T), 333(M)-335(T), 338(M)-340(B), 342(T)-345(T).  This material rather superficially
deals with the doctrines of Contributory Negligence, and Assumption of Risk,  We have already seen many contributory negligence cases and
will devote only a few minutes to the ones in this assignment. Assumption of Risk is a confusing doctrine because the courts have used the phrase
in three different ways: (1) the defendant owes no duty of care to the plaintiff in the specific accident context, as in the flopper case; (2) the
defendant does owe a duty of care to the plaintiff but the plaintiff recognized the risk created by the defendant and voluntarily exposed himself/
herself to that risk (Lamson); or (3) the risk was allocated to one of the parties by a contractual agreement, as argued unsuccessfully in the
Polemis and Carroll Towing cases.  The Meistrich case is the leading decision that held type (2) assumption of risk should be folded into the
contributory negligence doctrine by requiring that plaintiff's exposure to the risk be not only "knowing" and "voluntary" but also "unreasonable."

Pp:   357(M)-363(M), 388(M)-391(M), 393(M)-400(T).  Comparative Negligence (between plaintiff and defendants) and Equitable
Indemnification (between defendants but not plaintiff) involve apportionment of damages between the parties based on "fault" or the "degree
of causation" when both the parties have engaged in culpable behavior. These apportionment doctrines have replaced the previous contributory
negligence bar to plaintiff's recovery in all but a few states. A "pure" comparative negligence doctrine, such as in the Li case, involves a full range
of apportionment in which the plaintiff could recover 10 percent of his/her damages even after being found responsible for 90 percent of the
culpable harm.  In many states, especially those that adopted comparative negligence by statute, plaintiff can only recover damages if the
defendants are at least equally as responsible for the harm--the 50 percent floor.  New Jersey has adopted this treatment by statute. 

Equitable Indemnification or some other form of apportionment among culpable defendants has been adopted in most jurisdictions that have
adopted Comparative Negligence -- if it is feasible to apportion in one context, why not the other?  This is a lot of material for one day, but
these doctrines have become dominant treatments in most states and they are not too difficult to understand. We will try to get through the
apportionment cases and treatments in one day so we can have more time to devote to other issues, especially Strict Products Liability.
 

Thursday, November 1st:  Introduction to Strict Products Liability

The material on vicarious liability is assigned, but we will not have time to go over it in class: pp. 691-693(B), 695(B)-696(M), 701(B)-
707(M).

The materials assigned in this paragraph may be read anytime during the last four weeks of the semester, but will not be discussed in class.
These cases include some areas of traditional strict liability that offer only a little insight into the evolution of strict products liability law.
[Landlord/Tenant Relationships: 568(M)-574(M); Psychiatric Relationships: 578(M)-584(B); Historical Strict Liability: 606(M)-611, 615(B)
-618, 626-632(B), 637(T)-642(M); Private Nuisance 646(T)-650(T), 653(M)-654(B), 657(B)-659, 669(B)-675(T); Public Nuisance 681(B)
-684(M), 686-690(M).] 

Early Products Liability Cases:  Pp. 716(B)-719(M), 720-724(M), 727(B)-731(M). The first case describes the important historical doctrine
of privity, and the next two landmark decisions show the early development of products liability law. Please make up a written list of the policy
arguments used by Justice Traynor in his famous concurring opinion in Escola, and compare his arguments against Judge Cardozo's reasoning in
the even more famous and influential MacPherson case. Note that Justice Traynor wrote the first strict liability opinion, Greenman, almost 20
years after his Escola concurring opinion.

Consider the legal evolution from privity to product warranties: Express Warranties pp. 726 (Baxter), 749(M)(Houter); Implied Waranties pp.
726(B)-727(B)(McCabe) , 733(M)-735(M), and then to the first SPL decision, Greenman, at pp. 735(M)-736.


Tuesday, November 13th:  The Restatements and Manufacturing or Construction Defects

Pp. 737-742: The Restatement Second of Torts, Section 402A (1966), and the Third Restatement (1998) are among the foundations of
modern products liability law.  Section 402A was the most influential source in the development of strict products liability.  Even courts that
rejected provisions from this ALI document felt the need to discuss them and explain why Section 402A treatments were deemed unsuitable.
Please read these 402(A) provisions and the related comments very carefully, and contrast the doctrines and underlying ideologies of the
Second and Third Restatements.

Then we will discuss the doctrines of manufacturing or construction defects (synonyms), the strictest type of "strict products liability."
Read pp. 756(M)-759(M) and the cases in the handout materials that must be downloaded for this type of liability.

 

Thursday, November 15th:  Introduction to "Strict" Design Defect Products Liability

These cases will begin our discussion of the more complicated design defect treatments.  The materials may be downloaded here.
The Cepeda and Barker opinions provide the broadest overviews of core issues in design defect doctrines:
 
Intended or Foreseeable Uses:  Volkswagon, Cepeda, Barker
Consumer Expectations Test (CET):  Linegar, Potter, Barker, Restatement 2d Comments g, h & i
Risk-Utility Balancing (RUB) Test:  Cepeda, Barker, Potter
Imputation of Product Risks: Cepeda, Barker, Restatement 3d definition of design defects in Epstein on p.742 (T).
Reasonable Alternative Design (RAD) and State of the Art Defense: O'Brien, Potter, Restatement 3d on pp. 742 & 777.

These difficult and controversial issues have induced state courts to adopt at least 5 diverse treatments of design defect doctrines, with
overlapping features in some case contexts and markedly different treatments in others.  I suggest that you read these cases, especially
Barker and Cepeda, several times.  Most of these cases except Cepeda are included in the design defect materials presented in the
Epstein Casebook in highly-edited form.  However, I do not find the editing effective in light of the difficulty of the material, and many other
fragments of cases are also included in this casebook section that I believe confuse rather than clarify the issues.  I strongly urge you to read
the assigned cases and materials presented in the handout and also in the list of topics above; if you absolutely cannot find the time to do that
during this week, you can look at the edited versions in Epstein's book.  Yet, these abbreviated versions really are not clear enough for you
to understand the central design defect doctrines in most instances.

 

Tuesday, November 20th:  Design Defect and Risk-Utility Balancing:

Imputation of Product Risks: Cepeda, Barker, Restatement 3d definition of design defects in Epstein on p.742 (T).
Reasonable Alternative Design (RAD) and the State of the Art Defense: O'Brien, Potter, Restatement 3d on pp. 742 & 777.

Read Professor Latin's article on SUV designs over the Thanksgiving Holiday.  It is unclear as yet whether we'll have time to discuss
this essay in class, but it does provide a good example of design defect and crashworthiness analysis in the automotive field.

 

Tuesday, November 27th, and Thursday, November 29th:  Warning Defect Doctrines

We will try to devote no more than 30 minutes to the SUV design defect article distributed in class last Tuesday.

The difficult issues raised by products liability for warning defects involve many cases where the manufacturer does know, or should
know, the potential deficiencies of the product at issue, and yet fails to provide legally adequate warnings, instructions, or directions.
However, there are numerous disputed or ambiguous doctrines; for example, should sellers have to warn of "open and obvious" risks
and should they recognize that many product users will have limited literacy and cognitive skills when using the English language. 

The other, completely different, warning defect context arises when the producer claims it did not know, and could not have known,
of the product risk that assertedly caused the plaintiff's injury. Therefore, the seller could not have given a better warning.  This is the
major issue in the Beshada and Feldman cases from the handout.  In addition to the materials to be downloaded, read the Restatement
of Torts Second, comment j, and the short Restatement Third provision on warning defects, which are both found in the Epstein casebook.

The warning materials can be downloaded here.  The relevant material for the first class is the handout content up to the first few pages of
the Beshada case, which summarizes NJ warning defect law at that time when the product risks are known or knowable. The Thursday
discussion will focus on unknown or unforeseeable product risks.

 

Tuesday, December 4th:  Comparative Apportionment and the New Jersey Products Liability Statute

Please download  the short file on comparative negligence in a strict product liability context. Also, please read Comment N of the
Restatement Second.  We will spend only about 30 minutes dealing with this subject.

The remainder of the class will focus on the New Jersey Products Liability Act of 1987 and how it reshaped the common law SPL
doctrines, especially Design Defect, that were created by the New Jersey Supreme Court.  Read over the few substantive pages
(with numbered provisions) very carefully while trying to identify the legal changes made by the statute.  The handout contains the
statutory provisions and also two judicial cases decided after the statute took effect.