Fraudulently Induced Consent to Intentional Torts

This article will first proceed with a brief discussion of the nature of consent, the origin and application of the Restatement rule, and the exceptions to the rule which limit its application. A detailed analysis of the cases will follow

Products Liability--Applicability of Comparative Negligence

Products liability and comparative negligence are two very rapidly developing fields of tort law. In recent years, the vast majority of courts have adopted strict liability for harm caused by defective products. At the same time, the doctrine of comparative negligence has changed almost overnight from a doctrine that had been accepted by only a handful of jurisdictions into what is now the majority approach in this country

Products Liability - An Analysis of Market Share Liability

This Article examines the market share liability theory to determine whether it can achieve the objective of treating both parties fairly. Although courts in the past have relaxed the plaintiff\u27s burden of proof on the element of causation in fact, the question remains whether this relaxation is appropriate in DES cases, and,if so, whether market share liability is the most equitable method of implementing the relaxation. This Article suggests that the market share liability theory contains several serious flaws that render it unsuitable as a means for allowing plaintiffs to recover in DES cases. The Article criticizes the theory for diluting the elements of the alternative liability doctrine to the extent that the market share theory fails to meet the alternative liability theory\u27s primary objective of allocating responsibility according to each defendant\u27s share of the fault. Moreover, the additional objective of market share liability--to implement the modern notions of risk spreading and deterrence that underlie the law of products liability--is not achieved through the market share theory because the theory\u27s requirements were derived from alternative liability, which was designed to accomplish a different objective. The Article further criticizes the theory because it permits courts and juries to resolve cases without adequate evidence

Products Liability--Applicability of Comparative Negligence to Misuse and Assumption of the Risk

A trend is emerging to apply comparative negligence in strict products liability actions. This creates two serious difficulties. First is the question of how to compare the negligence of one party with the strict liability of the other party

New Settlement Statute: Its History and Effect

The statute concerning releases in multiple tortfeasor cases was amended to encourage settlements in two ways. It protects the settling tortfeasor from future liability for contribution, and it protects the settling claimant from having future judgments against non-settling tortfeasors reduced by more than an amount ascertainable at the time of the settlement. This article discusses the operation of the new statute and its relation to the law of contribution, indemnity, and comparative fault in Missouri

Causation in Fact in Omission Cases

This article analyzes the difficulties involved in attributing cause in fact in omission cases, and suggests possible resolutions. Part II discusses the basic concept of causation, and the distinction between acts and omissions. Part III discusses the particular problems that arise in applying causation principles in omission cases. Part IV then analyzes these problems from both corrective justice and economic analysis perspectives. Finally, the article suggests an approach for solving these complex issues

Role of Misuse in Products Liability Litigation

Misuse is puzzling. Sometimes it cuts off liability and sometimes it does not, but courts have failed to clarify exactly what sort of conduct qualifies as the type of misuse that bars recovery. Generally speaking misuse takes two forms, abnormal use and mishandling. Abnormal use comes about when a product is used for an improper purpose; mishandling comes about when a product is used for a proper purpose but in an improper manner. Under this definition defendants can claim that virtually any unusual handling or use of a product constitutes misuse. Yet courts will not always accept this characterization. They frequently explain their results by stating that liability is cut off only if the misuse is unforeseeable. However, they use foreseeability in an artificial sense in such cases, more as a way of stating a conclusion than as an analytical device for determining what conclusion to reach reach. This has created an air of uncertainty with regard to the type of conduct that truly qualifies as misuse. This article will describe how to identify the situations where misuse will bar liability and the situations where it will not. To do this it is necessary to examine the nature of the products liability system and evaluate the role that misuse plays in that system

Product Liability: A Commentary on the Liability of Suppliers of Component Parts and Raw Materials

The liability of suppliers of raw materials and component parts for harm caused by the product into which the materials have been incorporated poses difficult questions. When the raw material or component part is clearly defective, there is no question that the supplier is liable. Thus, where an ingredient in processed food is contaminated or where a truck tire has a flaw that causes a blowout, the supplier of the ingredient or the tire is liable. The difficult questions arise where the components are not inherently defective, but the finished product is defective because it lacks a safety feature or a warning to the ultimate user. Under what circumstances should the supplier of a raw material or component part be liable for failure to provide the safety feature, failure to provide the warning to the consumer, or failure to provide a warning to the assembler of the finished product of the necessity for the safety feature or the consumer warning

Products Liability--Functionally Imposed Strict Liability

Many manufacturers and insurance companies claim that a products liability crisis exists. This is evidenced by soaring products liability insurance rates. They express the fear that as insurance becomes unavailable or prohibitively expensive, useful products will be withheld from the market and some manufacturers may even be forced out of business. Such critics of the tort system are calling for modifications of the common law in order to give greater protection to manufacturers. A more drastic approach, vigorously championed by Professor Jeffrey O\u27Connell, calls for total or partial abolition of the tort system and substitution with various forms of no-fault insurance. In response, the federal government recently created an Interagency Task Force on Product Liability to study products liability and consider possible remedies to any problems that are found

Tort Recovery for Loss of a Chance

Tort lawyers in the United States often think of “loss of a chance” as a theory of “probabilistic causation” that only applies to medical malpractice misdiagnosis cases. The theory is that if a physician negligently fails to diagnose a curable disease, and the patient is harmed by the disease, the physician should be liable for causing the “loss of a chance” of a cure. We shall see that if the chance of a cure is less than 50 percent, the plaintiff cannot prove by a preponderance of evidence that the negligence caused the harm, and would recover no damages under the traditional “all or nothing” rule. Loss of a chance becomes a theory of “probabilistic causation” if we use it to hold the physician liable for the patient\u27s harm but reduce any award by the chance that the harm would have occurred even with proper diagnosis and treatment. If, for example, the chance of a cure was 40 percent, under a “probabilistic causation” rule, the physician would be liable for 40 percent of the patient\u27s harm because the physician deprived the patient of a 40 percent “chance” of avoiding the harm