Owen, Mongomery and Keeton's Case and Statutory Supplement to Product Liability and Safety 2001 : Cases and Materials,9781587781964

Owen, Mongomery and Keeton's Case and Statutory Supplement to Product Liability and Safety 2001 : Cases and Materials

by ;
Edition: 3rd
ISBN13: 9781587781964
ISBN10: 1587781964
Format: Paperback
Pub. Date: 2001-11-01
Publisher(s): West Information Pub Group
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Table of Contents

Preface iii
Acknowledgments v
Table of Cases
xxi
Cases and Notes 1(1)
PART I. Theories of Manufacturer Liability 1(14)
Tortious Misrepresentation
2(1)
Strict Liability for Misrepresentation
2(1)
Warranty
3(1)
Implied Warranty of Merchantability
3(1)
Strict Liability in Tort
4(11)
Development
4(11)
Denny v. Ford Motor Co.
4(11)
PART II. The Concept of Defectiveness 15(80)
Tests of Defectiveness
16(1)
Consumer Expectations
16(1)
Tests of Defectiveness
17(9)
Consumer Expectations
17(1)
Alternative Tests of Defect
18(8)
Potter v. Chicago Pneumatic Tool Company
18(8)
Types of Defect
26(8)
Defective Manufacture
26(1)
Defective Design
26(5)
Defective Marketing: Warnings & Instructions
31(3)
Regulating Defectiveness
34(38)
Direct Agency Regulation
34(4)
The Effect of Regulation on Private Litigation
38(34)
Medtronic Inc. v. Lohr
39(16)
Notes
55(1)
Geier v. American Honda Motor Company
56(15)
Note
71(1)
Limiting Defectiveness: User Choice
72(4)
Obvious Dangers
72(1)
Generic Risks: Product Category Liability
73(2)
Misuse
75(1)
Limiting Defectiveness: Passage of Time
76(19)
Disposal and Destruction
76(1)
State of the Art
76(16)
Freeman v. Hoffman-LaRoche, Inc.
76(8)
Sternhagen v. Dow Company
84(8)
Post-Sale Duties
92(1)
Statutory Repose
92(3)
PART III. CAUSATION 95(4)
Proximate Cause
96(3)
Duty and Foreseeability Limitations on Liability
96(1)
Intervening Causes
97(2)
PART IV. Defenses and Damages 99(4)
Damages
100(3)
Personal Injury and Death
100(1)
Emotional Distress
100(1)
Economic Loss and Property Damage
100(2)
Punitive Damages
102(1)
PART V. Special Types of Defendants, Products, and Transactions 103(6)
Special Types of Defendants
104(3)
Component Part Manufacturers and Assemblers
104(1)
Successor Corporations
105(1)
Allocating Responsibility and Loss: Contribution and Indemnity
105(2)
Special Types of Products and Transactions
107(2)
Miscellaneous ``Products''
107(2)
PART VI. Special Types of Litigation 109(58)
Automotive Litigation
110(1)
Crashworthiness
110(1)
Geier v. American Honda Motor Company
110(1)
Special Issues in Toxic Substance Litigation
111(56)
Judicial Administration
111(36)
Castano v. American Tobacco Co.
111(14)
Notes
125(1)
Texas v. American Tobacco Company
126(8)
Amchem Products, Inc. v. Windsor
134(12)
Notes
146(1)
Class Actions: Management
147(16)
Cimino v. Raymark Industries, Inc.
147(16)
Causation
163(4)
RESTATEMENT (SECOND) OF TORTS (APPROVED BY THE ALL, 1963 AND 1964) SELECTED SECTIONS 167(30)
Liability of Persons Supplying Chattels for the Use of Others
167(30)
Chattel Known to Be Dangerous for Intended Use
168(8)
Negligent Manufacture of Chattel Dangerous Unless Carefully Made
176(5)
Chattel Made Under Dangerous Plan or Design
181(1)
Selling as Own Product Chattel Made by Another
182(2)
Special Liability of Seller of Product for Physical Harm to User or Consumer
184(8)
Misrepresentation by Seller of Chattels to Consumer
192(5)
RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY (APPROVED BY THE ALL, 1997) SELECTED SECTIONS 197(83)
Liability of Commercial Seller or Distributor for Harm Caused by Defective Products
201(39)
Categories of Product Defect
205(18)
Circumstantial Evidence Supporting Inference of Product Defect
223(3)
Noncompliance and Compliance with Product Safety Statutes or Regulations
226(1)
Liability of Commercial Seller or Distributor of Product Components for Harm Caused by Products Into Which Components Are Integrated
227(6)
Liability of Commercial Seller or Distributor for Harm Caused by Defective Prescription Drugs and Medical Devices
233(5)
Liability of Commercial Seller or Distributor for Harm Caused by Defective Food Products
238(1)
Liability of Commercial Seller or Distributor of Defective Used Products
239(1)
Liability of Commercial Product Sellers Not Based on Product Defects at Time of Sale
240(9)
Liability of Commercial Product Seller or Distributor for Harm Caused by Misrepresentation
240(1)
Liability of Commercial Product Seller or Distributor for Harm Caused by Post-Sale Failure to Warn
240(5)
Liability of Commercial Product Seller or Distributor for Harm Caused by Post-Sale Failure to Recall Product
245(4)
Liability of Successors and Apparent Manufacturers
249(10)
Liability of Successor for Harm Caused by Defective Products Sold Commercially by Predecessor
249(7)
Liability of Successor for Harm Caused by Successor's Own Post-Sale Failure to Warn
256(2)
Selling or Distributing as One's Own a Product Manufactured by Another
258(1)
Provisions of General Applicability
259(21)
General Rule Governing Causal Connection Between Product Defect and Harm
259(2)
Increased Harm Due to Product Defect
261(6)
Apportionment of Responsibility Between or Among Plaintiff, Sellers and Distributors of Defective Products, and Others
267(2)
Disclaimers, Limitations, Waivers, and Other Contractual Exculpations as Defenses to Products Liability Claims for Harm to Persons
269(1)
Definition of ``Product''
270(4)
Definition of ``One Who Sells or Otherwise Distributes''
274(3)
Definition of ``Harm to Persons or Property'': Recovery for Economic Loss
277(3)
UNIFORM COMMERCIAL CODE SELECTED SECTIONS 280(3)
ARTICLE 1 GENERAL PROVISIONS 283(10)
Short Title
283(1)
Purposes; Rules of Construction; Variation by Agreement
283(1)
Supplementary General Principles of Law Applicable
284(1)
Construction Against Implicit Repeal
284(1)
Territorial Application of the Act; Parties' Power to Choose Applicable Law
284(2)
Remedies to Be Liberally Administered
286(1)
Waiver or Renunciation of Claim or Right After Breach
286(1)
General Definitions
287(3)
Obligation of Good Faith
290(1)
Time; Reasonable Time; ``Seasonably''
290(1)
Course of Dealing and Usage of Trade
291(2)
ARTICLE 2 SALES 293(45)
Short Title
293(1)
Definitions and Index of Definitions
294(1)
Definitions: ``Merchant''; ``Between Merchants'', ``Financing Agency''
294(1)
Definitions: Transferability; ``Goods''; ``Future'' Goods; ``Lot''; ``Commercial Unit''
295(1)
Definitions: ``Contract''; ``Agreement''; ``Contract for Sale''; ``Sale''; ``Present Sale''; ``Conforming'' to Contract; ``Termination''; ``Cancellation''
296(1)
Formal Requirements; Statute of Frauds
297(2)
Final Written Expression: Parol or Extrinsic Evidence
299(1)
Formation in General
300(1)
Offer and Acceptance in Formation of Contract
301(1)
Additional Terms in Acceptance or Confirmation
301(1)
Course of Performance or Practical Construction
301(1)
Modification, Rescission and Waiver
302(2)
General Obligations of Parties
304(1)
Unconscionable Contract or Clause
304(2)
Allocation or Division of Risks
306(1)
Express Warranties by Affirmation, Promise, Description, Sample
306(2)
Implied Warranty: Merchantability; Usage of Trade
308(3)
Implied Warranty: Fitness for Particular Purpose
311(1)
Exclusion or Modification of Warranties
312(3)
Cumulation and Conflict of Warranties Express or Implied
315(1)
Third Party Beneficiaries of Warranties Express or Implied
316(1)
Manner of Seller's Tender of Delivery
317(1)
Effect of Seller's Tender; Delivery on Condition
318(1)
Cure by Seller of Improper Tender or Delivery; Replacement
318(1)
Preserving Evidence of Goods in Dispute
319(2)
Buyer's Rights on Improper Delivery
321(1)
Manner and Effect of Rightful Rejection
322(1)
Waiver of Buyer's Objections by Failure to Particularize
323(1)
What Constitutes Acceptance of Goods
323(1)
Effect of Acceptance; Notice of Breach; Burden of Establishing Breach After Acceptance; Notice of Claim or Litigation to Person Answerable Over
324(3)
Revocation of Acceptance in Whole or in Part
327(1)
Buyer's Remedies in General; Buyer's Security Interest in Rejected Goods
328(2)
Buyer's Damages for Breach in Regard to Accepted Goods
330(1)
Buyer's Incidental and Consequential Damages
330(2)
Buyer's Right to Specific Performance or Replevin
332(1)
Deduction of Damages From the Price
333(1)
Liquidation or Limitation of Damages; Deposits
333(1)
Contractual Modification or Limitation of Remedy
334(1)
Effect of ``Cancellation'' or ``Rescission'' on Claims for Antecedent Breach
335(1)
Remedies for Fraud
336(1)
Statute of Limitations in Contracts for Sale
336(2)
PRODUCTS LIABILITY STATUTES SELECTED STATES 338(110)
CONSUMER PRODUCT SAFETY ACT SELECTED SECTIONS 448(64)
Congressional findings and declaration of purpose
451(1)
Definitions
452(2)
Consumer Product Safety Commission
454(4)
Establishment; Chairman
454(1)
Term; vacancies
455(1)
Restrictions on Commissioners' outside activities
455(1)
Quorum; seal; Vice Chairman
455(1)
Offices
456(1)
Functions of Chairman
456(1)
Executive Director; officers and employees
456(1)
Civil action against the United States
457(1)
Agenda; establishment and comments
458(1)
Product safety information and research
458(1)
Injury Information Clearinghouse; duties
458(1)
Research, investigation and testing of consumer products
459(1)
Grants and contracts for conduct of functions
459(1)
Availability to public of information
459(1)
2055. Public disclosure of information
459(5)
Disclosure requirements for manufacturers or private labelers; procedures applicable
459(2)
Additional disclosure requirements for manufacturers or private labelers; procedures applicable
461(2)
Communications with manufacturers
463(1)
Definition; coverage
463(1)
Disclosure of information
463(1)
Consumer product safety standards
464(1)
Types of requirements
464(1)
Reliance of Commission upon voluntary standards
465(1)
Contribution of Commission to development cost
465(1)
Banned hazardous products
465(1)
Procedure for consumer product safety rules
466(6)
Commencement of proceeding; publication of prescribed notice of proposed rulemaking; transmittal of notice
466(1)
Voluntary standard; publication as proposed rule; notice of reliance of Commission on standard
467(1)
Publication of proposed rule; preliminary regulatory analysis; contents; transmittal of notice
467(1)
Promulgation of rule; time
468(1)
Expression of risk of injury; consideration of available product data; needs of elderly and handicapped
469(1)
Findings; final regulatory analysis; judicial review of rule
469(2)
Effective date of rule or standard; stockpiling of product
471(1)
Amendment or revocation of rule
471(1)
Petition to initiate rulemaking
472(1)
Judicial review of consumer product safety rules
472(2)
Petition by persons adversely affected, consumers, or consumer organizations
472(1)
Additional data, views, or arguments
472(1)
Jurisdiction; costs and attorneys' fees; substantial evidence to support administrative findings
473(1)
Supreme Court review
473(1)
Availability of other remedies
473(1)
Computation of reasonable fee for attorney
473(1)
Imminent hazards
474(1)
Filing of action
474(1)
Relief; product condemnation and seizure
474(1)
Consumer product safety rule
474(1)
Jurisdiction and venue; process; subpoena
475(1)
Employment of attorneys by Commission
475(1)
Consideration of cost of compliance
475(1)
Product certification and labeling
475(1)
Substantial product hazards
476(4)
Definition
476(1)
Noncompliance with applicable consumer product safety rules; product defects; notice to Commission by manufacturer, distributor, or retailer
477(1)
Public notice of defect or failure to comply; mail notice
477(1)
Repair; replacement; refunds; action plan
477(1)
Reimbursement
478(1)
Hearing
479(1)
Preliminary injunction
479(1)
Consideration of cost of notification
480(1)
Inspection and recordkeeping
480(1)
Imported products
481(2)
Refusal of admission
481(1)
Samples
481(1)
Modification
481(1)
Supervision of modifications
482(1)
Product destruction
482(1)
Payment of expenses occasioned by refusal of admission
482(1)
Importation conditioned upon manufacturer's compliance
482(1)
Product surveillance program
483(1)
Exemption of exports
483(1)
Risk of injury to consumers within United States
483(1)
Statement of exportation: filing period, information; notification of foreign country; petition for minimum filing period: good cause
483(1)
Prohibited acts
484(1)
Civil penalties
485(2)
Amount of penalty
485(1)
Relevant factors in assessment of penalty
486(1)
Compromise of penalty; deductions from penalty
486(1)
``Knowingly'' defined
487(1)
Criminal penalties
487(1)
Injunctive enforcement and seizure
487(1)
Suits for damages
488(1)
Persons injured; costs; amount in controversy
488(1)
Denial and imposition of costs
489(1)
Remedies available
489(1)
Private enforcement
489(1)
Private remedies
489(1)
Liability at common law or under State statute not relieved by compliance
489(1)
Evidence of Commission's inaction inadmissible in actions relating to consumer products
490(1)
Public information
490(1)
State standards
490(1)
State compliance to Federal standards
490(1)
Consumer product safety requirements which impose performance standards more stringent than Federal standards
490(1)
Exemptions
491(1)
Additional functions of Consumer Product Safety Commission
491(5)
Authority to conduct hearings or other inquiries
491(1)
Commission powers; orders
491(2)
Noncompliance with subpoena or Commission order; contempt
493(1)
Disclosure of information
493(1)
Performance and technical data
493(1)
Purchase of consumer products by Commission
493(1)
Contract authority
493(1)
Research, development, and testing facilities
493(1)
Recordkeeping; audit
494(1)
Report to President and Congress
494(1)
Budget estimates and requests; legislative recommendations; testimony; comments on legislation
495(1)
Report on civil penalties
496(1)
Chronic Hazard Advisory Panels
496(2)
Appointment; purposes
496(1)
Composition; membership
496(1)
Chairman and Vice Chairman; election; term
497(1)
Majority vote
497(1)
Administrative support services
497(1)
Compensation
497(1)
Requests for and disclosures of information
497(1)
Information from other Federal departments and agencies
497(1)
Cooperation with States and other Federal agencies
498(1)
Transfers of functions
499(2)
Hazardous substances and poisons
499(1)
Flammable fabrics
499(1)
Household refrigerators
499(1)
Regulation by Commission of consumer products in accordance with other provisions of law
499(1)
Transfer of personnel, property, records, etc.; continued application of orders, rules, etc.
500(1)
Definition of ``function''
501(1)
Limitations on Jurisdiction of Consumer Product Safety Commission
501(2)
Authority to regulate
501(1)
Certain notices of proposed rulemaking; duties of Chronic Hazard Advisory Panel
502(1)
Panel report; incorporation into advance notice and final rule
503(1)
Authorization of appropriations
503(1)
Interim cellulose insulation safety standard
504(4)
Applicability of specification of General Services Administration; authority and effect of interim standard; modifications; criteria; labeling requirements -
504(1)
Scope of judicial review
505(1)
Enforcement; violations; promulgation of final standard; procedures applicable to promulgation; revision of interim standard; procedures applicable to revision
505(2)
Reporting requirements of other Federal departments, agencies, etc. of violations
507(1)
Reporting requirements of Commission to Congressional committees; contents, time of submission, etc.
507(1)
Compliance with certification requirements; implementation; waiver; rules and regulations
508(1)
Authorization of appropriations
508(1)
Congressional veto of consumer product safety rules
508(2)
Transmission to Congress
509(1)
Disapproval by concurrent resolution
509(1)
Presumptions from Congressional action or inaction
509(1)
Continuous session of Congress
509(1)
Information reporting
510(2)
Notification of settlements or judgments
510(1)
Calculation of the 24 month period
510(1)
Information required to be reported
510(1)
Report not deemed an admission of liability
511(1)
Definitions
511(1)
MAGNUSON-MOSS WARRANTY ACT 512(15)
Definitions
513(2)
Rules governing contents of warranties
515(2)
Full and conspicuous disclosure of terms and conditions; additional requirements for contents
515(1)
Availability of terms to consumer; manner and form for presentation and display of information; duration, extension of period for written warranty or service contract
516(1)
Prohibition on conditions for written or implied warranty waiver by Commission
516(1)
Incorporation by reference of detailed substantive warranty Provisions
517(1)
Applicability to consumer products costing more than $5.00
517(1)
Designation of written warranties
517(1)
Full (statement of duration) or limited warranty
517(1)
Applicability of requirements, standards, etc., to representations or statements of customer satisfaction
517(1)
Exemptions by Commission
518(1)
Applicability to consumer products costing more than $10.00 and not designated as full warranties
518(1)
Federal minimum standards for warranties
518(2)
Remedies under written warranty; duration of implied warranty; exclusion or limitation on consequential damages for breach of written or implied warranty; election of refund or replacement
518(1)
Duties and conditions imposed on consumer by warrantor
519(1)
Waiver of standards
519(1)
Remedy without charge
519(1)
Incorporation of standards to products designated with full warranty for purposes of judicial actions
520(1)
Full and limited warranting of a consumer product
520(1)
Service contracts; rules for full, clear and conspicuous disclosure of terms and conditions; addition to or in lieu of written warranty
520(1)
Designation of representatives by warrantor to perform duties under written or implied warranty
520(1)
Implied warranties
521(1)
Restrictions on disclaimers or modifications
521(1)
Limitation on duration
521(1)
Effectiveness of disclaimers, modifications, or limitations
521(1)
Procedures applicable to promulgation of rules by Commission; rulemaking proceeding for warranty and warranty practices involved in sale of used motor vehicles
521(1)
Remedies in consumer disputes
522(3)
Informal dispute settlement procedures; establishment; rules setting forth minimum requirements; effect of compliance by warrantor; review of informal procedures or implementation by Commission; application to existing informal procedures
522(1)
Prohibited acts
523(1)
Injunction proceedings by Attorney General or Commission for deceptive warranty, noncompliance with requirements, or violating prohibitions; procedures; definitions
523(1)
Civil action by consumer for damages, etc.; jurisdiction; recovery of costs and expenses; cognizable claims
524(1)
Class actions; conditions; procedures applicable
524(1)
Warrantors subject to enforcement of remedies
525(1)
Applicability of provisions to other Federal or State laws and requirements
525(1)
Effective dates; time for promulgation of rules by Commission
526(1)
MODEL UNIFORM PRODUCT LIABILITY ACT 527(94)
Short Title
533(1)
Short Title
533(1)
Findings
533(1)
Findings
534(1)
Definitions
535(2)
Definitions
537(6)
Scope of This Act
543(1)
Scope of This Act
543(1)
Basic Standards of Responsibility for Manufacturers
544(3)
Basic Standards of Responsibility for Manufacturers
547(10)
Basic Standards of Responsibility for Product Sellers Other Than Manufacturers
557(1)
Basic Standards of Responsibility for Product Sellers Other Than Manufacturers
558(3)
Unavoidably Dangerous Aspects of Products
561(1)
Unavoidably Dangerous Aspects of Products
562(2)
Relevance of Industry Custom, Safety or Performance Standards, and Practical Technological Feasibility
564(1)
Relevance of Industry Custom, Safety or Performance Standards and Practical Technological Feasibility
565(3)
Relevance of Legislative or Administrative Regulatory Standards and Mandatory Government Contract Specifications
568(1)
Relevance of Legislative or Administrative Regulatory Standards and Mandatory Government Contract Specifications
569(2)
Notice of Possible Claim Required
571(1)
Notice of Possible Claim Required
572(1)
Length of Time Product Sellers Are Subject to Liability
573(2)
Length of Time Product Sellers Are Subject to Liability
575(4)
Comparative Responsibility and Apportionment of Damages
579(2)
Comparative Responsibility and Apportionment of Damages
581(3)
Conduct Affecting Comparative Responsibility
584(2)
Conduct Affecting Comparative Responsibility
586(5)
Multiple Defendants: Contribution and Implied Indemnity
591(1)
Multiple Defendants: Contribution and Implied Indemnity
592(2)
Relationship Between Product Liability and Worker Compensation
594(1)
Relationship Between Product Liability and Worker Compensation
594(3)
Sanctions Against the Bringing of Frivolous Claims and Defenses
597(1)
Sanctions Against the Bringing of Frivolous Claims and Defenses
597(1)
Arbitration
597(2)
Arbitration
599(6)
Expert Testimony
605(1)
Expert Testimony
606(2)
Non-pecuniary Damages
608(1)
Non-pecuniary Damages
609(2)
The Collateral Source Rule
611(1)
The Collateral Source Rule
612(2)
Punitive Damages
614(1)
Punitive Damages
614(3)
Severance Clause
617(1)
Severance Clause
618(1)
Effective Date
618(1)
Effective Date
618(3)
Common Sense Product Liability Legal Reform Act of 1996 621(39)
Product Liability Reform Act of 1997 660(26)
Biomaterials Access Assurance Act of 1998 686(13)
EEC Directive on Liability for Defective Products 699

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