Can the Open and Obvious Danger Rule Coexist with Strict Tort Product Liability: A Legal and Economic Analysis
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CAN THE OPEN AND OBVIOUS DANGER RULE
COEXIST WITH STRICT TORT PRODUCT LIABILITY?:
A LEGAL AND ECONOMIC ANALYSIS
*JORDAN H. LEIBMAN
**ROBERT SANDY
INTRODUCTION
Latency of danger has always been an important factor in allocating
risk in our society. Indeed, the idea that every person has a duty to
refrain from creating hidden hazards that can endanger others has its
roots in the ancient law of deceit.1 The emphasis on latent dangers as
the principal ground of liability was retained in later negligence law
through the creation of an open and obvious danger rule which denied
recovery to any plaintiff who could not prove injury caused by a latent
hazard. The rule also relieved defendants from any duty to warn of ob
vious dangers.! This rule was frequently applied to product liability
cases when the seller's negligence was alleged. But with the
emergence of strict liability in tort as the dominant theory in product
* Associate Professor of Business Law, Indiana University-Indianapolis.
** Assistant Professor of Economics, Indiana University-Purdue
University at Indianapolis School of Liberal Arts.
See 2 F. HARPER & F. JAMES, THE LAW OF TORTS 1542-46 (1956).
In an earlier day the test of ordinary care was applied only to the manufacturer
of inherently dangerous articles, and these were narrowly defined as in-
cluding only such things as food, drink, poisons and explosives. Against the
dangers of machinery, the maker owed no duty of care, but only the duty to
disclose latent perils known to him. [T]he action against
[him]...proceed[ed]...and (was] founded on the fact, that in selling the article he
practiced fraud and deceit in concealing the defects ..
Id. at 1542-43 quoting Olds Motor Works v. Shaffer, 145 Ky. 616, 625, 140 S.W. 1047, 1052
(1911).
2 See infra notes 32-44 and accompanying text.](ViewImageLocal?handle=hein.journals/ambuslj20&div=27&collection=&method=preview&ext=.png&size=3)
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Can the Open and Obvious Danger Rule Coexist with Strict Tort Product Liability: A Legal and Economic Analysis
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