Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn
![handle is hein.journals/nylr65 and id is 285 raw text is: DOCTRINAL COLLAPSE IN PRODUCTS
LIABILITY: THE EMPTY SHELL OF
FAILURE TO WARN
JAMES A. HENDERSON, JR.*
AARON D. TWERsKI**
Liability for a manufacturer's failure to warn of product-related risks is a well-estab-
lished feature of modern products liability law, Yet many serious doctrinal and con-
ceptual problems underlie these claims. Professors Henderson and -ersfki explore
these problems and argue that failure-to-warn jurisprudence is confused. perhaps irrep-
arably, and that this confusion often results in the imposition of excessive liability on
manufacturers. The authors begin by exposing basic errors resulting from courts' con-
fusion over whether to apply a strict liability or a negligence standard of care in failure-
to-warn cases. Having determined that negligence is the appropriate standard they
then examine more substantial and intractable difflculties in failure-to-warn litigation,
particularly the inability ofjuries to consider the marginal costs and benefits of adding
warnings to those already provided The authors conclude that fairness and efficiency
goals of products liability law would be better served if judges were to take a more
active role in screening out marginal failure-to-warn claims.
INTRODUCTION
Negligence dominates tort. Since courts first recognized the general
duty of care in the mid-nineteenth century,I cases of all types have been
tailored to fit the fault-based formula. Activities as diverse as automobile
driving,2 medical care provision,3 and land management4 are securely en-
* Frank B. Ingersoll Professor of Law, Cornell University. A.B., 1959, Princeton Univer-
sity; LL.B., 1962, LL.M., 1964, Harvard University.
** Professor of Law, Brooklyn Law School A.B., 1962, Beth Medrash Elyon Research
Institute; B.S., 1970, University of Wisconsin-Milwaukee; J.D., 1965, Marquette University.
I The major works detailing the development of early American tort law are L Friedman,
A History of American Tort Law (2d ed. 1985); M. Horowitz, The Transformation of Ameri-
can Law (1977); Gregory, Trespass to Negligence to Absolute Liability, 37 Va. L Rev. 359
(1951); Schwartz, The Character of Early American Tort Law, 36 UCLA L Rev. 641 (1989);
Schwartz, Tort Law and the Economy in Nimeteenth-Century America: A Reinterpretation,
90 Yale LJ. 1717 (1981).
2 Notwithstanding the argument that a large number of automobile accidents are not
fault-based but are rather the product of split-second decisionmaking in a hostile environment,
negligence remains the dominant mode for litigating such cases. See, eg., 3 F. Harper, F.
James & 0. Gray, The Law of Torts §§ 11.4, 12.4 (2d ed. 1986) [hereinafter The Law of
Torts]; R. Keeton & J. O'Connell, Basic Protection for the Traffic Victim 15-22 (1965);
Ehrenzweig, Full-Aid Insurance for the Traffic Victim-A Voluntary Compensation Plan,
43 Calif. L. Rev. 1, 4 (1955); McNiece & Thornton, Automobile Accident Prevention and
Compensation, 27 N.Y.U. L. Rev. 585, 604-05 (1952). The no-fault revolt of the 1970s never
replaced the fault-based system in its entirety in any jurisdiction. More than half the states
have not bought into even modest reform.
3 The case-by-case negligence litigation system continues for medical care cases, although
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Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn
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