Agenda for 20th Class Handouts Slides Product Liability Handout Lunch sign up Tomorrow (Thursday) 12:50-1:50 PM, Rm. 106 Levi, Introduction to Legal Reasoning Escola

Assignment for Next Class Review any questions from today’s assignment that we don’t discuss in class Read “Product Liability” packet 2 Blackboard Questions on Product Liability Questions to think about / Short papers Everyone should be prepared to discuss all the questions on the last page of the “Product Liability” handout Mandatory writing Group 5. Qs 1 & 4 Group 6. Qs 1 & 4 Group 7. Qs 2 & 5 Group 8. Qs 3 & 5 Optional writing -- All questions that are not mandatory

Common Law Every case involves facts which are different than previous cases So common law judge must decide whether new facts fall within rules established by prior cases (holdings) Or whether must create new rule E.g. create new exception, as in Thomas v Winchester, which created “imminently dangerous” exception to Winterbottom v Wright Sometimes, even though new case may seem to fall within rules established by prior cases, judge may decide to state holding differently Loop v Litchfield. “inherently dangerous” requirement rather than “imminently dangerous” requirement Cardozo’s emphasis on foreseeable and probable danger in Thomas v Winchester Sometimes common law judges may decide to ignore or severely downplay importance of prior case Devlin v Smith essentially ignores Loop v Litchfield Sometimes judges emphasize facts that were not important in prior opinion Cardozo emphasizes knowledge of defect in Loop v Litchfield In deciding, whether to make an exception, modify holding, or ignore prior case, judges are usually motivated by sense of justice and/or policy

Levi, Introduction to Legal Reasoning Common law is reasoning by example What matters are (a) facts and (b) outcome How prior decision justified its decision is “dictum” Not binding Example Thomas v Winchester Facts: Defendant bottled poison as dandelion and sold it to retailer, who sold it to plaintiff Outcome: Defendant liable Judge in each case must decide if facts are more similar to cases finding liability or not liability Since cases are always at least a little different, judge must articulate what similarities are important and which are not In doing so, judge is not bound by “statement of the rule of law made by the prior judge….. [he] may find irrelevant the existence or absence of facts which prior judges thought important.” 3 stages of legal evolution Formulation of rule or concept Application of fixed rule or concept Breakdown of rule or concept

Levi, Introduction to Legal Reasoning Common law is reasoning by example What matters are (a) facts and (b) outcome How prior decision justified its decision is “dictum” Not binding Example Thomas v Winchester Facts: Defendant bottled poison as dandelion and sold it to retailer, who sold it to plaintiff Outcome: Defendant liable Judge in each case must decide if facts are more similar to cases finding liability or not liability Since cases are always at least a little different, judge must articulate what similarities are important and which are not In doing so, judge is not bound by “statement of the rule of law made by the prior judge….. [he] may find irrelevant the existence or absence of facts which prior judges thought important.” 3 stages of legal evolution Formulation of rule or concept Application of fixed rule or concept Breakdown of rule or concept

Questions 1. On pp. 9-10 of Introduction to Legal Reasoning, Levi discusses Longmeid v. Holliday. That is not a case we read. Is there a case we did read that serves a similar function in the evolution of the law of defective products? How is its function similar? How is it different? 2. On p. 10 of Introduction to Legal Reasoning, Levi asserts that Thomas v. Winchester was the first application of the rule in Longmeid, that there is a distinction between “things in their nature dangerous” (for which there is liability without privity of contract) and “things which become [dangerous] by an unknown latent defect” (where there is liability only for those in privity of contract). Is that how you read Thomas and how we discussed it in class? If not, how is it different, and which is the better interpretation? 3. On p. 5 of Introduction to Legal Reasoning, Levi asserts that “the first stage is the creation of a legal concept… several phrases may be tried out …. The second stage is the period when the concept is more or less fixed …. The third stage is the breakdown of the concept.” What is the “legal concept” that Levi thinks is created in the first stage of the cases about defective products? Why does it “breakdown”? Can you think of one or two other concepts created in the first cases you read on defective products? Describe how they “breakdown.”

Questions 4. Do you think Levi describes the reasoning in the line of the common law cases from Levi v. Langridge to Macpherson well? What aspects of his analysis did you find persuasive? What aspects did you find confusing? What aspects did you find not persuasive? 5. Do you think Levi describes the reasoning in Justice Traynor’s concurrence in Escola? In what ways is his description accurate? In what ways is it inaccurate? 6. Do you agree with Justice Traynor’s reasoning in Escola? What do you think were his strongest arguments? What were his weakest arguments? Can you think of arguments against “absolute liability” for defective products? 7. When persons are injured by defective products and the manufacturer is found liable, the manufacturer must pay damages (money) to compensate the person who has been harmed. Damages include medical expenses and damage to the plaintiff’s other property (e.g. a computer damaged in a car crash). In addition, if the injured person is temporarily or permanently disabled and unable to work, the manufacturer must compensate the injured person for his or her lost wages or lost income. Who is ultimately likely to pay for those lost wages? Can you think of a way in which that might be unfair?

Questions 8. While the cases you have read so far are about defective manufacturing, the law also makes manufacturers liable for defective design of products. For example, GM and Ford have been successfully sued for putting gas tanks in places that are likely to explode in certain types of collisions, rather than between the rear wheels, where explosion is less likely. Suppose a consumer buys a car, and then gets into a crash. Can the consumer prevail by showing that if the car had an optional safety feature, such as extra airbags or automatic braking, the consumer would not have been injured, and therefore that the car was “defective” for not having those safety features?