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60 Marq. L. Rev. 297 (1976-1977)
From Defect to Cause to Comparative Fault - Rethinking Some Product Liability Concepts

handle is hein.journals/marqlr60 and id is 307 raw text is: FROM DEFECT TO CAUSE TO COMPARATIVE FAULT-RETHINKING SOME PRODUCT LIABILITY CONCEPTS AARON D. TWERSKI* INTRODUCTION More than a decade has passed since the onset of the prod- ucts liability revolution.' In this period of time literally thou- sands of judicial opinions have sought to identify and clarify the ramifications of the shift from the doctrine of negligence to that of strict liability as the judicial standard to govern actions arising from injuries caused by defective and dangerous prod- ucts.2 At first blush it would appear that there is general agree- * B.S., University of Wisconsin; J.D., Marquette University; Teaching Fellow, Harvard Law School, 1966-67; Professor of Law and Associate Dean, Hofstra Univer- sity. This paper was prepared during a period in which the author was involved in a study sponsored by the National Science Foundation, entitled PRODUCT LIABILITY: A STUDY OF THE INTERACTION OF LAW AND TECHNOLOGY, Grant Number GI-34857, and was presented, along with others, at a symposium entitled Crisis in Accident Loss Repara- tions-What Can Be Done About It?, held at Oconomowoc, Wisconsin, October 12- 13, 1976, and sponsored by the Graduate School of Business and the Law School of the University of Wisconsin. Although this paper developed apart from the National Science Foundation study, the contributions of Professor William Donaher of the Du- quesne Law School and Professors Alvin Weinstein and Henry Piehler of Carnegie- Mellon University-co-members of that NSF study team-to my overall thinking are gratefully acknowledged. 1. The onset of the products liability era can be variously marked by Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 1161 A.2d 69 (1960) or Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1963). See, Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 YALE L.J. 1099 (1960). The adoption by the American Law Institute of RESTATEMENT (SECOND) OF TORTS § 402A (1965) triggered a revolution in American tort law establishing strict liability. In 1972 Professor Dix Noel had noted that some 36 jurisdictions had expressed their general approval of the strict liability doctrine. Noel, Defective Products: A bnor- mal Use, Contributory Negligence, and Assumption of the Risk, 25 VAND. L. REV. 93 n. 4 (1972). See PROD. LIAB. REP. (CCH) § 4050 for a listing of the states accepting strict liability doctrines. The most recent adoptions of strict liability doctrine have been by the Alabama and Florida courts. See Atkins v. American Motors Corp., 295 Ala. -, 335 So. 2d 134 (1976); West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976). 2. The volume of litigation can be somewhat gauged by the number of reported products liability decisions. The PRODUCTS LIABILrrY REPORTER published by Commerce Clearing House has reported approximately 144,000 decisions since 1970 alone. The National Commission on Product Safety estimated that in 1969 approximately 300,000 products suits were filed. NATIONAL COMMISSION ON PRODUCT SAFETY FINAL REPORT OF THE NATIONAL COMMISSION ON PRODUCT SAFETY (June, 1970).

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