Document Type

Article

Publication Date

11-1991

Keywords

Liability without defect, No-defect liability, Across-the-board liability without defect, Product-category liability, Risk-utility balancing, Ultrahazardous activity doctrine, Failure-to-warn, Strict liability in tort

Disciplines

Consumer Protection Law | Litigation | Products Liability | Torts

Abstract

For over one hundred years American courts expanded the rights of plaintiffs in products liability cases. First the courts eliminated the privity requirement, next the necessity of proving fault, and finally, the necessity of proving a production defect. The next logical step in this progression would be to eliminate the need to show any type of defect at all. In this Article, Professors Henderson and Twerski assert that this step cannot and will not be taken. They explore both the possibility of across-the-board liability without defect and the more limited idea of product-category liability without defect. They describe how a system of liability without defect would work, and then they demonstrate why such a system is neither workable nor desirable. The authors examine both the practical and theoretical ramifications of the no-defect liability system that would emerge if courts somehow could clear the implementation hurdle. They also discuss the judicial system's flirtation with such an expansion. Asserting that our judicial system would not tolerate this development in products liability law, Professors Henderson and Twerski conclude that products liability has reached its outermost frontier.

Publication Citation

Published in: New York University Law Review, vol. 66, no. 5 (November 1991).