Chapter 5: Torts and Product Liability

Week 5. Chapter content to be written. The description below sets out what the chapter will cover.

Tort law covers civil wrongs that are not breaches of contract: a customer slips in a store, an online review defames a competitor, a defective product injures a buyer. This chapter introduces the three categories of tort liability (intentional, negligent, and strict) and finishes with product liability, one of the largest sources of legal exposure for companies that make or sell goods.

5.1 Planned Sections

Tort Basics. The purpose of tort law, the kinds of damages, tort reform, and how tort law differs from criminal law even when the same act gives rise to both.

Intentional Torts Against Persons. Assault and battery, false imprisonment (including shopkeeper's privilege), intentional infliction of emotional distress, defamation (and the special rules for public figures and online speech, including Section 230), invasion of privacy, fraudulent misrepresentation, and abusive litigation.

Business Torts and Torts Against Property. Wrongful interference with contracts and business relationships, trespass to land and to personal property, conversion, and disparagement of property.

Negligence. Duty of care (including the reasonable person standard and the duties of business owners and professionals), breach, actual and proximate cause, and damages. Defenses: assumption of risk, superseding cause, and contributory and comparative negligence. Special doctrines such as res ipsa loquitur, negligence per se, and Good Samaritan and dram shop statutes.

Strict Liability and Product Liability. Abnormally dangerous activities; product liability based on negligence and misrepresentation; strict product liability under the Restatement; the three types of defects (manufacturing, design, and warning); market-share liability; and defenses such as misuse, comparative negligence, and preemption.

5.2 Featured Case

Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928). Two railroad guards helped a running passenger board a moving train. In the process they knocked loose his package, which (unknown to anyone) contained fireworks. The package exploded when it hit the rails, and the shock allegedly knocked over scales at the far end of the platform, injuring Helen Palsgraf. Writing for the New York Court of Appeals, Judge Cardozo held that the railroad was not liable to her. A duty of care is owed only to those within the foreseeable zone of danger, and nothing about a small package suggested danger to someone standing far away. Judge Andrews's dissent argued instead for a broader, policy-based test of proximate cause.

Why this case: It is the best-known case on duty and proximate cause, and the majority and dissent present two competing ways of drawing the line on liability. Students can debate both.

Discussion question: Which opinion, Cardozo's or Andrews's, gives businesses more predictable rules for managing risk?

5.2.1 Short Case Summaries

• Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57 (1963). A manufacturer is strictly liable in tort when a defective product it put on the market injures someone. This is the foundation of modern strict product liability. (Strict liability and product liability)
• Liebeck v. McDonald's Restaurants (N.M. Dist. Ct. 1994). The "hot coffee" jury verdict, often cited and often misunderstood. It is useful for discussing punitive damages and tort reform. Because this was a trial verdict with no published appellate opinion, it is best used as a case study rather than a case brief. (Tort basics)

5.3 Planned Features

• A negligence analysis worksheet that walks through each element for a sample fact pattern.
• A discussion of a well-known product recall and the legal and ethical decisions behind it.
• Key terms: tort, compensatory damages, punitive damages, defamation, conversion, negligence, duty of care, proximate cause, comparative negligence, strict liability, design defect, failure to warn.