Reflections on Section 402A of the Restatement (Second) of Torts: A Mirror Crack’d

Section 402A of the Restatement (Second) of Torts forever changed the means by which an individual would be held liable for placing defective products into the stream of commerce. Strict liability, which had previously been restricted to cases involving dangerous activities and wild animals, became a new cause of action in almost all product cases. As a result, this section of the Restatement has been a catalyst to a multitude of litigation. More causes of action have been brought alleging strict liability for injuries caused by a defective product than in any other area of tort law. Now that almost twenty-five years have passed since the adoption of this rule, much of the early uncertainty associated with it has abated. For the most part, the concept and its elements have been clearly established and universally accepted, making this a good time to look back, consider what the drafters of this section intended, and reflect on the judicial changes that have occurred as a result of its enactment. The apparent intent of the drafters has in some respects been altered, and the section has been extended to include events and individuals not mentioned in the original text. This reflection on the section illustrates that the original Section 402A is not necessarily the law that is in effect today

A Continuing Whimsical Search for the True Meaning of the Term “Product” in Products Liability Litigation

More than a decade has elapsed since an initial attempt was made to discern the true meaning of the term product in products liability litigation. At the time, a brief history of events leading up to the adoption of Section 402A of the Restatement (Second) of Torts was outlined, and it was emphasized that what had at first seemed so simple subsequently proved to be somewhat complex. An examination of cases involving the sales/service transaction, as well as those involving real estate, blood, electricity, component parts, water, computer software, and ideas, sometimes held that what was involved was a product. This would at first glance appear to be contrary to the meaning of the term. What became clear, however, is that courts had generally rejected a primary dictionary definition of product, and instead adopted a policy-based technique to determine whether the transaction before them deserved Section 402A protection. They did not start with the issue of whether a product was involved, but rather determined whether the transaction was one which should come under the umbrella of strict products liability. This process led to some unusual results. Subject matter that no one would have ever considered as such was deemed to be a product. As such, the search for the meaning of the term product in products liability litigation continues. At times whimsical, and at others sublime, the cases continue their path of exploration, but review of these cases, particularly products liability cases involving food, may lead to a logical guideline for the policy-based determination method to follow

Vicarious Liability of an Employer for an Assault by His Servant: A Survey of Texas Cases Reexamining the “Rule of Force”

The doctrine of respondeat superior has long been entrenched in Anglo-American jurisprudence. It is under this doctrine that principles, masters, and employers have been held liable for the wrongs of individuals working under them and acting within the scope of their employment. This doctrine has been applied to all injury producing acts of the employee, whether negligent or intentional. Presently, there is considerable conflict in Texas concerning an employer’s liability for the intentional torts of his employee. Analysis of several Texas cases regarding the doctrine of respondeat superior points out that Texas courts have applied two conflicting tests in determining the liability of an employer for an assault committed by his employee. It was thought that the Texas Supreme Court had finally settled the issue with the determination of Texas & P. Ry. v. Hagenloh, in which the court established a “rule of force.” However, the majority of post-Hagenloh cases, including the only supreme court decision in the field, have merely paid Hagenloh lip service and instead followed the scope of employment test established in Houston Transit Co. v. Felder. In Felder, the court held that a plaintiff could recover damages only by showing that the aggressor was acting within the scope of his employment by the defendant. The post-Hagenloh cases have diluted the efficacy of the “rule of force” test established in Hagenloh, and it appears that Texas courts will continue the trend of the most recent cases and follow the older scope of employment test

Fattening Foods: Under Products Liability Litigation is the Big Mac Defective?

Excessive consumption of fast food may produce negative results, but it does not render fast food products, like the McDonald’s Big Mac, defective. While no product is technologically perfect, and any product can cause injury, American jurisprudence has always held purveyors of defective food liable. The question is whether fattening foods, such as the Big Mac, are defective under a strict products liability theory. The cornerstone of this cause of action requires a product to be defective, which may stem from: (1) mis-manufacturing, where the product enters the stream of commerce in an unintended condition; (2) mis-marketing, where the risks are not obvious or commonly known, and the product’s warnings or instructions are inadequate; or (3) mis-designing, where the ingredients, qualities, or features of the product have been consciously intended by the manufacturer, but are allegedly unsafe—the risks of the product outweigh its benefits. The most likely question is whether fast food products should be considered mis-designed. The burden to prove that a product is mis-designed involves presenting feasible alternatives for the product. It is true that a leaner version of the Big Mac will be healthier, technologically feasible, cost efficient, and just as marketable and useful as the current version; but will it be safer? Just as tobacco can be harmful, but is not considered unsafe, excessive consumption of fast food may produce negative results, but also should not be considered unsafe. Fast food, however fattening, cannot be considered defective under products liability law

An Essay on the Tort of Negligent Infliction of Emotional Distress in Texas: Stop Saying It Does Not Exist

The injury of emotional distress is an interesting tort, which has long perplexed the Anglo-American system of jurisprudence. While, originally, allegations of this kind did not constitute a cause of action, today, there is no question that an injured plaintiff may recover for the infliction of emotional distress. The majority and minority positions differ now only on what must be alleged and proved. Texas was the first jurisdiction in the United States to allow recovery for mental anguish. However, in 1993 in the case of Boyles v. Kerr, the Texas Supreme Court appeared to depart from the majority view when it decided that negligent infliction of emotional distress alone was not compensable. As a result, some practitioners, and indeed some courts, state that the tort is no longer recognized. This is, in fact, not true. As a review of the Texas case history of emotional distress claims shows, the tort of negligently inflicted emotional distress is alive and well in Texas. This review makes clear that the Texas Supreme Court never intended to completely eradicate negligent infliction of emotional distress as a cause of action. Rather, to recover for this injury, plaintiffs must only show that they have endured the breach of some other duty owed to them. Whether we think of this in terms of a parasitic recovery in the area of substantive law, or in terms of a requirement in pleading with regard to procedure, the result is the same

A New Look at an Old Conundrum: The Determinative Test for the Hybrid Sales/Service Transaction Under Section 402A of the Restatement (Second) of Torts

Historically, the concept of strict tort liability was confined to two areas: injuries resulting from dangerous activities, and harm inflicted by wild and/or dangerous animals. However, in 1963, the California Supreme Court held in Greenman v. Yuba Power Products that the theory of strict liability in tort also included products. Then, in 1965, The Restatement (Second) of Torts adopted Section 402A and endorsed the theory of Greenman that strict liability was available as a distinct cause of action in litigation involving injuries caused by defective products. Though there was some initial confusion associated with the application of some of the provisions of Section 402A, much of that is now settled. Yet, there are a few questions that still require explanation or refinement, including one issue of particular importance concerning hybrid transactions, transactions which involve furnishing a product while also performing some kind of service. These transactions make it difficult to determine the true essence or thrust of a transaction regarding whether it is a sale or service, and make it difficult to determine the applicability of Section 402A to the transaction. Further complicating this matter is that there are two tests, one from the area of torts, the other from the sphere of contracts, which can each be applied to determine whether strict liability is applicable, and the two tests often produce different results. In order to resolve this issue and select the most appropriate test for determining strict liability, it is necessary to review the history and application of both standards. Armed with the information and insight revealed by such a review, it becomes clear that the “gravamen” test from the sphere of contracts is best suited to determine Section 402A applicability. This test is not only more direct and logical, but it also achieves more equitable results

Observations on the Evolution of Minorities in the Law: From Law School to Practice

The St. Mary’s University School of Law has a rich history in promoting the representation of minorities in its faculty and student body. Moreover, its history in this area was a tradition long before the country found its social conscience, and before the American government, prodded by the civil rights movement, urged institutions of higher learning to engage in affirmative action. St. Mary’s and Hispanics led the way in this national movement. This year, as St. Mary’s University School of Law celebrates its seventy-fifth year, it is a perfect time to reflect upon the evolution of minorities in the Law School’s past, present, and future

Distinguishing The Concept of Strict Liability For Ultra-Hazardous Activities From Strict Products Liability Under Section 402A Of The Restatement (Second) Of Torts: Two Parallel Lines Of Reasoning That Should Never Meet

Strict liability for ultra-hazardous activities is entirely different from strict products liability. Since strict liability has been applied to so-called dangerous or ultra-hazardous activities, the application has been limited to instances where the defendant has, for his own purpose, created an abnormal risk of harm to those surrounding him, and therefore should pay for any resulting injury. Section 520 of the Restatement (Second) of Torts explains how one weighs the risk of harm emanating from ultra-hazardous activities against the appropriateness to its surroundings. This is not, however, how one determines the applicability of strict liability in the area of defective products under Section 402A of the Restatement (Second) of Torts. Section 402A has well-established standards for the concept of defectiveness, particularly when the defect was discovered through examining mismanufactured, misdesigned, and mismarketed products. The best standard to determine whether the product is mismanufactured is the reasonable expectations test. The risk-benefit analysis test, on the other hand, has emerged as the prevailing standard for determining misdesigned and mismarked products. Strict liability for ultra-hazardous activities is concerned with the appropriateness of the defendant’s activities to the locale, while strict products liability requires the defendant to introduce a defective product into the stream of commerce that is unreasonably dangerous to the user or consumer. These are two lines of reasoning that are distinct, separate, and independent of each other, and should never meet

The Recycling, Dismantling, and Destruction of Goods as a Foreseeable Use Under Section 402A of the Restatement (Second) of Torts

The past thirty years have witnessed the significant expansion and transformation of products liability law. While much of the initial confusion regarding the application and interpretation of Section 402A of the Restatement (Second) of Torts has been settled, some problems remain. One of these problem areas involves the allocation of liability for injuries resulting from the destruction, dismantling, and recycling of products whose useful lives have come to an end. In this situation, the law has evolved to provide a rule that imposes no liability upon the manufacturer. The courts have reasoned that individuals engaged in reclamation procedures are not users as required by the Restatement and additionally that such processes are not foreseeable product uses. This position, however, is incorrect, and following explanation of the court’s misapplication of the rule in Johnson v. Murph Metals, Inc., an alternate position to that of the existing law can be suggested and justified. The underlying rationale of this alternative position is based upon a number of relevant factors and insights, including recognition that all products have a useful life and eventually reach a point where they should no longer be used. The only logical conclusions of these factors are that reclamation procedures are foreseeable and that manufacturers are in the best position to assume liability for injuries caused by these procedures

The Useful Life Defense: Embracing the Idea That All Products Eventually Grow Old and Die

To date, no jurisdiction has adopted the useful life defense as part of its common law. Perhaps the time has come to reconsider this position and accept the logical consequences of such a defensive concept. At some point, natural deterioration, rather than a defect in design, manufacturing, or marketing, is the cause of a plaintiff’s injury. Combining the useful life defense with the reasonable expectation theory removes the burden of uniformly determining when a given product is legally dead. The reasonable expectations doctrine places the responsibility for determining the useful life of a product where it belongs—in the hands of the trier of fact. Nothing could be fairer from the manufacturer’s perspective than a premise that limits liability to a period of time during which a product is viable, useful, and fit for its intended purpose. Section 402A of the Restatement (Second) of Torts provides a cause of action for injured plaintiffs that is arguably inequitable to defendant manufacturers. Courts must begin to consider that, like all things tangible, products eventually grow old and die, and that once this process has taken place, a manufacturer should not be held responsible for resulting injuries. Courts universally hold, when a product is dismantled or recycled, it is not being used in the manner intended. This unintended use becomes unforeseeable, and any resulting injury is not the responsibility of the manufacturer. Continuing to indefinitely hold a manufacturer liable for injuries arising from the use of a product, unreasonably extends the precepts that originally support section 402A of the Restatement (Second) of Torts. Courts must recognize and accept that all products eventually lose their usefulness and become dead as bases for liability