DOCSLIB.ORG

No Defect? No Problem. Proving a Product Liability Claim Through Circumstantial Evidence: Differentiating the RESTATEMENT (THIRD) of TORTS § 3 from Res Ipsa Loquitor

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
No Defect? No Problem. Proving a Product Liability Claim Through Circumstantial Evidence: Differentiating the RESTATEMENT (THIRD) of TORTS § 3 from Res Ipsa Loquitor Illinois Association of Defense Trial Counsel Springfield, Illinois | www.iadtc.org | 800-232-0169 IDC Quarterly | Volume 24, Number 4 (24.4.41) Product Liability Brian J. Benoit and Davis J. Kim Goldberg Segalla LLP, Chicago No Defect? No Problem. Proving a Product Liability Claim Through Circumstantial Evidence: Differentiating the RESTATEMENT (THIRD) OF TORTS § 3 from Res Ipsa Loquitor When and how can a plaintiff be divorced of the burden to show a specific product defect? Illinois and a majority of jurisdictions have long held that evidence of a defective product may be proven through circumstantial evidence. Doyle v. White Metal Rolling & Stamping Corp., 249 Ill. App. 3d 370 (1st Dist. 1993). Consistent with Illinois law, the RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 3, “Circumstantial Evidence Supporting Inference of Product Defect” (1998) (Restatement Third), states: It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff: (a) was of a kind that ordinarily occurs as a result of product defect; and (b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution. Notably, the comments to Restatement Third § 3 trace the “historical antecedents to the law of negligence” and cite specifically to RESTATEMENT (SECOND) OF TORTS, § 328D (1965), which pertains to res ipsa loquitor. There are fundamental differences between product liability proven through circumstantial evidence and the theory of res ipsa loquitor. Understanding the differences between the two will help the practitioner investigate and defend a case where the plaintiff is relying on circumstantial evidence to prove a defect in a product liability case. Illinois law provides that: [A] plaintiff may create an inference that a product was defective by direct or circumstantial evidence that: (1) there was no abnormal use of the product; (2) that there was no reasonable secondary cause of the injury; and (3) that the product failed to perform in the manner reasonably to be expected in light of its nature and intended function. Page 1 of 4 Doyle, 249 Ill. App. 3d at 377. This language tracks the language of the Restatement Third § 3. By contrast, the United States Court of Appeals Seventh Circuit, interpreting Illinois law, specifically rejected the notion that res ipsa loquitor is applicable in products cases. Welge v. Planters Lifesavers Co., 17 F.3d 209 (7th Cir. 1994). Res ipsa loquitor is grounded on the presumption that because the instrumentality that created the incident was in the defendant’s control at the time of the incident, the incident would not have occurred but for some fault on the part of the defendant. RESTATEMENT (SECOND) OF TORTS, § 328D (1965). Product liability cases differ in that the focus is not on the fault of the manufacturer, but on the condition of the product itself at the time the product leaves the manufacturer. While there have not been any Illinois cases demonstrating the specific elements required to prove a strict liability claim absent a specific defect, the recent Connecticut case of White v. Mazda Motor of Am., 139 Conn. App. 39 (2012) provides unique insight into some of the issues to be addressed when defending a strict product liability case based on circumstantial evidence. In White, the plaintiff filed a product liability action against a vehicle manufacturer and dealership, alleging that he was injured when his vehicle caught fire one month after he purchased it. The plaintiff specifically alleged that his injuries were caused by a defective and unreasonably dangerous condition with the vehicle. In support of its claim, the plaintiff cited a laundry list of various alleged defects within the vehicle that may have caused the fire. White, 139 Conn. App. at 43. Under cross examination, the plaintiff’s expert admitted that “he was ‘not offering an opinion that the [vehicle] was defective . .’” Id. at 42. The defendants filed a motion for summary judgment arguing that the plaintiff failed to produce any evidence to establish that the vehicle was defectively designed or manufactured. The trial court agreed and granted the defendant’s motion. On appeal, the plaintiff focused on the sufficiency of its expert’s opinions and argued that he could prove his case through circumstantial evidence, i.e., the malfunction theory. The Appellate Court of Connecticut affirmed, citing the need for expert testimony in product liability cases despite the existence of the malfunction theory. The appellate court did not consider the malfunction theory in their ruling, which upheld the trial court’s decision. Id. at 50-51. Justice West authored a dissenting opinion, stating that the plaintiff had asserted the malfunction theory in the trial court and that he could have defeated summary judgment based on the existence of circumstantial evidence. Id. at 510. Justice West pointed out that the plaintiff may prove a product liability case in the absence of direct evidence of a defect when it is shown that: (1) the incident that caused the plaintiff’s harm was of a kind that ordinarily does not occur in the absence of a product defect, and (2) any defect most likely existed at the time the product left the manufacturer’s or seller’s control and was not the result of other reasonably possible causes not attributable to the manufacturer or seller. White, 139 Conn. App. at 57 (West, J. dissenting). The dissenting opinion further noted that these two elements could be established through “various forms of circumstantial evidence,” which include: (1) the history and use of the particular product, (2) the manner in which the product malfunctioned, (3) similar malfunctions in similar products that may negate the possibility of other causes, (4) the age of the product in relation to its life expectancy, and (5) the most likely causes of the malfunction. Page 2 of 4 Id. White subsequently appealed to the Connecticut Supreme Court, which has heard oral argument. Connecticut Network (Oct. 29, 2013), http://ct-n.com/ctnplayer.asp?odID=9559. During oral argument, there was substantial discussion on whether the plaintiff’s expert ruled out all potential alternative causes. Id. These potential causes, as discussed by the justices, could have ranged from a rock puncturing the fuel tank to a bird taking refuge in the engine compartment. Id. The plaintiff’s counsel argued that there was no testimony regarding alternative causes and, as a result, the “lack of alternative causes” factor had been met by the plaintiff. Id. The justices, however, took the lack of testimony by the plaintiff’s experts regarding alternative causes to suggest that potential alternative causes were not eliminated by the plaintiff’s expert. Id. Similar to res ipsa loquitor cases, the justices’ questions appeared to place the burden of eliminating potential alternative causes on the plaintiff. Id. It is clear that the impending decision in White will have a significant impact on product liability cases in Connecticut and perhaps throughout the country. Thus, the relevant inquiry becomes to what extent must an expert conclusively rule out alternative causes in order to raise the malfunction theory of liability? A logical follow-up question is whether expert testimony is necessary to rule out alternative causes. A few cases stand for the proposition that no expert testimony is required in a malfunction theory case. Those cases are uncommon and typically involve an incident in which there were direct witnesses to the accident. For example, in Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 217–218 (1997), the court held that the plaintiffs, who alleged that they sustained injuries as a result of excessive vibration from power tools used during their employment, did not need expert testimony to prove a design defect because “a jury may, under appropriate circumstances, infer a defect from the evidence . .” Potter, 241 Conn. at 218. The defense must take an active role in evaluating potential alternative causes. The defense can establish its own alternative causation scenarios with which to confront the plaintiffs’ experts or cast doubt on the elimination of alternative causes. To do so may require expert consultation by the defense at the outset, but will preserve the defense’s ability to evaluate any evidence of alternative theories while it still exists. Evidence in product liability cases can be fluid and should be preserved as soon as possible. At first glance, the malfunction theory seems to provide the plaintiffs with an “out” when a specific defect cannot be identified. The recent case law suggests that the malfunction theory carries with it the additional burden on the plaintiff to rule out other potential explanations for the incident. Therefore, it is the defense attorney’s job to ensure that the plaintiff’s analysis in excluding all other causes is grounded in fact. About the Authors Brian J. Benoit is a partner in the Chicago office of Goldberg Segalla LLP. His nationwide practice focuses on the defense of product manufacturers, specializing in catastrophic losses involving fires and explosions. Mr. Benoit has authored articles and presented nationwide on investigating fire losses, evidentiary challenges, and deposing expert witnesses. Davis J. Kim, associate, is a member of Goldberg Segalla’s Products Liability and Global Insurance Services Practice Groups. He defends manufacturers, commercial property owners, property managers, general contractors, subcontractors, motor carriers, and real estate professionals in personal injury and property damage actions. In addition, he handles insurance coverage matters and business and com-mercial litigation, and has significant appellate experience. While receiving his J.D. at the University of Maryland School of Law, Mr. Davis served as President of the International Law Society and participated in the Philip C.
Load more

Recommended publications
  • Case 2:12-Cv-01114-JD Document 17 Filed 10/19/12 Page 1 of 9
    Case 2:12-cv-01114-JD Document 17 Filed 10/19/12 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA _____________________________________ DAVID S. TATUM, : CIVIL ACTION : NO. 12-1114 : Plaintiff, : v. : : TAKEDA PHARMACEUTICALS : NORTH AMERICA, INC., TAKEDA PHARMACEUTICALS AMERICA, INC., : TAKEDA PHARMACEUTICALS : INTERNATIONAL, INC., TAKEDA : PHARMACEUTICALS COMPANY : LIMITED, TAKEDA PHARMACEUTICALS, LLC, TAKEDA : AMERICA HOLDINGS, INC., TAKEDA : GLOBAL RESEARCH & : DEVELOPMENT CENTER, INC., : TAKEDA SAN DIEGO, INC., TAP : PHARMACEUTICALS PRODUCTS, INC., ABBOTT LABORATORIES, INC., : DOES 1 THROUGH 100 INCLUSIVE, : : Defendants. : _____________________________________ DuBois, J. October 18, 2012 M E M O R A N D U M I. INTRODUCTION This is a product liability action in which plaintiff David S. Tatum alleges that the PREVACID designed, manufactured, and marketed by defendants weakened his bones, ultimately leading to hip fractures. The defendants filed a motion to dismiss many of the claims in Tatum’s First Amended Complaint. For the reasons that follow, the Court grants in part and denies in part defendants’ motion. II. BACKGROUND1 Tatum was prescribed PREVACID, a pharmaceutical drug designed, manufactured, and 1 As required on a motion to dismiss, the Court takes all plausible factual allegations contained in plaintiff’s First Amended Complaint to be true. Case 2:12-cv-01114-JD Document 17 Filed 10/19/12 Page 2 of 9 marketed by defendants. (Am. Compl. 3, 7.) After taking PREVACID, Tatum began feeling pain in his left hip, and he was later diagnosed with Stage III Avascular Necrosis. (Id. at 7.) Tatum’s bones became weakened or brittle, causing multiple fractures.
    [Show full text]
  • July 25, 2019 NACDL OPPOSES AFFIRMATVE CONSENT
    July 25, 2019 NACDL OPPOSES AFFIRMATVE CONSENT RESOLUTION ABA RESOLUTION 114 NACDL opposes ABA Resolution 114. Resolution 114 urges legislatures to adopt affirmative consent requirements that re-define consent as: the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances . The word “assent” generally refers to an express agreement. In addition the resolution dictates that consent must be “expressed by words or actions.” The resolution calls for a new definition of consent in sexual assault cases that would require expressed affirmative consent to every sexual act during the course of a sexual encounter. 1. Burden-Shifting in Violation of Due Process and Presumption of Innocence: NACDL opposes ABA Resolution 114 because it shifts the burden of proof by requiring an accused person to prove affirmative consent to each sexual act rather than requiring the prosecution to prove lack of consent. The resolution assumes guilt in the absence of any evidence regarding consent. This radical change in the law would violate the Due Process Clause of the Fifth and Fourteenth Amendments and the Presumption of Innocence. It offends fundamental and well-established notions of justice. Specifically, Resolution 114 urges legislatures to re-define consent as “the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances .
    [Show full text]
  • The Constitutionality of Strict Liability in Sex Offender Registration Laws
    THE CONSTITUTIONALITY OF STRICT LIABILITY IN SEX OFFENDER REGISTRATION LAWS ∗ CATHERINE L. CARPENTER INTRODUCTION ............................................................................................... 296 I. STATUTORY RAPE ............................................................................... 309 A. The Basics.................................................................................... 309 B. But the Victim Lied and Why it Is Irrelevant: Examining Strict Liability in Statutory Rape........................................................... 315 C. The Impact of Lawrence v. Texas on Strict Liability................... 321 II. A PRIMER ON SEX OFFENDER REGISTRATION LAWS AND THE STRICT LIABILITY OFFENDER.............................................................. 324 A. A Historical Perspective.............................................................. 324 B. Classification Schemes ................................................................ 328 C. Registration Requirements .......................................................... 331 D. Community Notification Under Megan’s Law............................. 336 III. CHALLENGING THE INCLUSION OF STRICT LIABILITY STATUTORY RAPE IN SEX OFFENDER REGISTRATION.............................................. 338 A. General Principles of Constitutionality Affecting Sex Offender Registration Laws........................................................................ 323 1. The Mendoza-Martinez Factors............................................. 338 2. Regulation or
    [Show full text]
  • Occum Inciment Et Fugia Nobitas Ditate Quam Neurolaw
    from SEPTEMBER/OCTOBER 2012 Volume 24, Issue 5 A publication of the American Society of Trial Consultants Foundation Occum inciment et fugia nobitas ditate quam Neurolaw: Trial Tips for Today and Game Changing Questions for the Future By Alison Bennett HE FUTURE OF LAW is standing on the courthouse steps. cannot predict the point in time at which the intersection of Neurolaw – the combination of neuroscience research technology and law will merge to create credible courtroom Tand the law – is worthy of attention for a number of evidence, we can look to neurolaw research today for research reasons. Neuroscientists are conducting ground-breaking findings that confirm current trial practice techniques and research with a machine called a functional MRI, or fMRI, offer new insights into jury decision making and the art of which is similar to traditional MRI technology but focuses on persuasion. brain activity, not just structure. Some would argue the use of neuroscientific evidence based on fMRI research is a premature Current Criminal Trial Applications adoption of a novel technology, but neurolaw evidence is already In the United States, neuroscientific evidence has been influencing jury trials in the United States and abroad. Billions admitted in over one hundred criminal trials now, has been of dollars are being pored into interdisciplinary neuroscience cited in at least one U. S. Supreme Court case, and is being research each year in the United States and abroad. While we admitted as evidence in other countries as well. In many cases, September/October 2012 - Volume 24, Issue 5 thejuryexpert.com 1 neuroscientific evidence was offered to mitigate sentencing “John grasped the object” and “Pablo kicked the ball.” by presenting neuroimaging highlighting brain damage that The scans revealed activity in the motor cortex, which could have diminished the perpetrator’s capacity and ability coordinates the body’s movements, indicating imagining to make rational decisions.
    [Show full text]
  • Torts - Trespass to Land - Liability for Consequential Injuries Charley J
    Louisiana Law Review Volume 21 | Number 4 June 1961 Torts - Trespass To land - Liability for Consequential Injuries Charley J. S. Schrader Jr. Repository Citation Charley J. S. Schrader Jr., Torts - Trespass To land - Liability for Consequential Injuries, 21 La. L. Rev. (1961) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol21/iss4/23 This Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. 862 LOUISIANA LAW REVIEW [Vol. XXI is nonetheless held liable for the results of his negligence. 18 It would seem that this general rule that the defendant takes his victim as he finds him would be equally applicable in the instant type of case. The general rule, also relied upon to some extent by the court in the instant case, that a defendant is not liable for physical injury resulting from a plaintiff's fear for a third person, has had its usual application in situations where the plaintiff is not within the zone of danger.' 9 Seemingly, the reason for this rule is to enable the courts to deal with case where difficulties of proof militate against establishing the possibility of recovery. It would seem, however, that in a situation where the plaintiff is within the zone of danger and consequently could recover if he feared for himself, the mere fact that he feared for another should not preclude recovery.
    [Show full text]
  • A Law and Norms Critique of the Constitutional Law of Defamation
    PASSAPORTISBOOK 10/21/2004 7:39 PM NOTE A LAW AND NORMS CRITIQUE OF THE CONSTITUTIONAL LAW OF DEFAMATION Michael Passaportis* INTRODUCTION................................................................................. 1986 I. COLLECTIVE ACTION PROBLEMS AND RATIONAL CHOICE THEORY....................................................................................... 1988 II. BEHAVIORAL ECONOMICS AND NORMS .................................. 1990 III. ESTEEM, GOSSIP, AND FALSE GOSSIP ...................................... 1994 A. The Negative Externality of False Gossip ......................... 1995 B. Punishment of False Negative Gossip ............................... 2001 IV. THE LAW OF DEFAMATION AND ITS CONSTITUTIONALIZATION ........................................................ 2004 A. Defamation at Common Law............................................. 2005 B. The Constitutional Law of Defamation............................. 2008 V. THE CONSTITUTIONAL LAW OF DEFAMATION AND NORMS . 2013 A. The Problem of Under-Produced Political Speech.......... 2013 B. The Actual Malice Rule and Normative Behavior ........... 2019 VI. THE COMMON LAW VERSUS SULLIVAN FROM A LAW AND ECONOMICS PERSPECTIVE......................................................... 2022 A. The Economics of Strict Liability ...................................... 2022 B. Strict Liability and Defamation.......................................... 2027 C. Was the Common Law of Defamation Efficient? ............ 2032 CONCLUSION....................................................................................
    [Show full text]
  • Is There Really No Liability Without Fault?: a Critique of Goldberg & Zipursky
    IS THERE REALLY NO LIABILITY WITHOUT FAULT?: A CRITIQUE OF GOLDBERG & ZIPURSKY Gregory C. Keating* INTRODUCTION In their influential writings over the past twenty years and most recently in their article “The Strict Liability in Fault and the Fault in Strict Liability,” Professors Goldberg and Zipursky embrace the thesis that torts are conduct-based wrongs.1 A conduct-based wrong is one where an agent violates the right of another by failing to conform her conduct to the standard required by the law.2 As a description of negligence liability, the characterization of torts as conduct-based wrongs is both correct and illuminating. Negligence involves a failure to conduct oneself as a reasonable person would. It is fault in the deed, not fault in the doer. At least since Vaughan v. Menlove,3 it has been clear that a blameless injurer can conduct himself negligently and so be held liable.4 Someone who fails to conform to the standard of conduct expected of the average reasonable person and physically harms someone else through such failure is prima * William T. Dalessi Professor of Law and Philosophy, USC Gould School of Law. I am grateful to John Goldberg and Ben Zipursky both for providing a stimulating paper and for feedback on this Article. Daniel Gherardi provided valuable research assistance. 1. John C.P. Goldberg & Benjamin C. Zipursky, The Strict Liability in Fault and the Fault in Strict Liability, 85 FORDHAM L. REV. 743, 745 (2016) (“[F]ault-based liability is . liability predicated on some sort of wrongdoing. [L]iability rests on the defendant having been ‘at fault,’ i.e., having failed to act as required.”).
    [Show full text]
  • Nuisance – Elements
    Nuisance – Elements Nuisance is the cause of action you use when someone is interfering with your right to enjoy your property; but trespass is not applicable Private Nuisance: Elements: 1) Plaintiff has the right to possess or ownership of land; 2) The defendant undertakes an action that interferes with the use or enjoyment of that land; 3) In a manner that is substantial and in a manner a reasonable person would not tolerate (subjective test) Public Nuisance: - This occurs when the interference is with public property, not specifically with anyone’s private property (e.g., a street or a park) - Such an action can typically only be brought by a governmental authority because no person has standing to bring an action for public nuisance. Of course, if the private person suffered specific economic harm, she may be able to sue for negligence, etc. Nuisance - Other Factors - The nuisance must have arisen from an act that’s actionable as an intentional, negligent or strict liability tort! - The actions that give rise to the nuisance must be “unreasonable” under the circumstances. Thus: A “balancing test” must be performed between the harm that the nuisance causes and the benefits of the activities that create the nuisance, taking into account: o The economic and social importance of the activity o The burden on the defendant and on society of forcing the activity to cease o Whether there is a more appropriate place to conduct the activity - All the rules regarding causation and damages apply, as with negligence and strict liability - The defenses of assumption of risk and contributory negligence apply; as with any other tort.
    [Show full text]
  • Supreme Court of the United States
    no reactions indicative of deception. Htr. 44. Smith also testified that he was aware Davenport suffered a stroke sometime prior to 2006, did not have any record associated with the polygraph, and was now unavailable to answer questions about his conduct of the exam. Htr. 184-85. Smith also obtained two affidavits from Britt; one was executed on October 26,2005, the other in November 2005. Htr. 44-52; DX 5058; DX 5059. The October affidavit stated, in at least one paragraph, that Britt transported Stoeckley from Charleston to Raleigh; the November affidavit states that he transported her from Greenville to Raleigh. DX 5058 f 15; DX 5059 ^ 15; see also Htr. 40 (“Sometimes he said Charleston. Sometimes he said Greenville.”). The October affidavit also mentions what Britt felt was unethical behavior - Judge Dupree accepting cakes made by jurors - during the MacDonald trial. DX 5058 U 28. In February 2006, Britt executed an addendum to his affidavit, which included more detail than his previous affidavits. Htr. 199; GX 2089.34 Specifically, Britt stated that he and Holden transported Stoeckley to the courthouse on August 15,1979, for her interviews with the parties. GX 2089. He also stated that the defense interview of Stoeckley concluded around noon, and he then escorted her to the U.S. Attorney’s office. Britt again asserted that he was present during Stoeckley’s interview with the Government, and quoted Blackburn as telling her: “If you go downstairs and testify that you were at Dr. Jeffrey MacDonald’s house on the night of the murders, I will indict you as an accessory to murder.” Id.
    [Show full text]
  • The Expansion of Fraud, Negligence, and Strict Tort Liability
    Michigan Law Review Volume 64 Issue 7 1966 Products Liability--The Expansion of Fraud, Negligence, and Strict Tort Liability John A. Sebert Jr. University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Consumer Protection Law Commons, and the Torts Commons Recommended Citation John A. Sebert Jr., Products Liability--The Expansion of Fraud, Negligence, and Strict Tort Liability, 64 MICH. L. REV. 1350 (1966). Available at: https://repository.law.umich.edu/mlr/vol64/iss7/10 This Comment is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. COMMENTS Products Liability-The Expansion of Fraud, Negligence, and Strict Tort Liability The advances in recent years in the field of products liability have probably outshone, in both number a~d significance, the prog­ ress during the same period in most other areas of the law. These rapid developments in the law of consumer protection have been marked by a consistent tendency to expand the liability· of manu­ facturers, retailers, and other members of the distributive chain for physical and economic harm caused by defective merchandise made available to the public. Some of the most notable progress has been made in the law of tort liability. A number of courts have adopted the principle that a manufacturer, retailer, or other seller1 of goods is answerable in tort to any user of his product who suffers injuries attributable to a defect in the merchandise, despite the seller's exer­ cise of reasonable care in dealing with the product and irrespective of the fact that no contractual relationship has ever existed between the seller and the victim.2 This doctrine of strict tort liability, orig­ inally enunciated by the California Supreme Court in Greenman v.
    [Show full text]
  • Neurolaw Or Frankenlaw? the Thought Police Have Arrived Brain
    Volume 16, Issue 1 Summer 2011 Neurolaw or Frankenlaw? Brain-Friendly The Thought Police Have Arrived Case Stories By Larry Dossey, MD Part Two Reprinted with the author’s permission “This technology . opens up for the first time the possibility of punishing By Eric Oliver people for their thoughts rather than their actions.” —Henry T. Greely, bioethicist, Stanford Law School Without the aid of trained emotions the intellect is powerless against the animal organism.” Wonder Woman, the fabulous comic book heroine, wields a formidable - C. S. Lewis weapon called the Lasso of Truth. This magical lariat makes it impossible for anyone caught in it to lie. FIRST THINGS FIRST American psychologist William Moulton Marston created Wonder After the August, 1974 resig- Woman in 1941. He hit a nerve; Wonder Woman has been the most popular nation of Richard Nixon, an apoc- Continued on pg. 32 ryphal story began making the media rounds. It seems one of the major outlets had run a simple poll, asking respondents who they had voted for in the previous presi- dential race: McGovern or Nixon. have a most productive and practical contribution According to the results, Nixon had to share with you from my friend and consulting lost to “President” McGovern by a colleague, Amy Pardieck, from Perceptual Litigation. No stranger to these pages, Katherine James, landslide! Whether it is true or not, of ACT of Communication, makes the case that ac- the story rings of verisimilitude. Hi All – tors and directors have known for decades what tri- What the pollsters didn’t measure, Welcome to the second issue of the new al attorneys interested in bridging the gap between and which would have been much Mental Edge.
    [Show full text]
  • Comparative Negligence and Strict Tort Liability Marcus L
    Louisiana Law Review Volume 40 | Number 2 Symposium: Comparative Negligence in Louisiana Winter 1980 Comparative Negligence and Strict Tort Liability Marcus L. Plant Repository Citation Marcus L. Plant, Comparative Negligence and Strict Tort Liability, 40 La. L. Rev. (1980) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol40/iss2/8 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. COMPARATIVE NEGLIGENCE AND STRICT TORT LIABILITY Marcus L. Plant* Strict liability1 in tort occupies a prominent place in Louisiana jurisprudence. Chief Judge Hunter of the United States District Court for the Western District of Louisiana has recently written: "The Louisiana Civil Code is replete with instances of liability based on breach of duty where there is neither negligence nor intentional misconduct by the party liable."2 Such liability has been applied in cases in which defendant has engaged in blasting,3 crop spraying,4 and pile driving.' In a 1971 case, the defendant, having stored poisonous gas, conceded initial liability for the escape of the gas despite the absence of any negligence on its part.' In that same year the Louisiana Supreme Court adopted a strict tort liability approach with respect to manufacturers of defective products Recently, there has been further expansion of the areas of human conduct that are to be governed by the principles of strict tort liability. In 1974 article 2321 of the Louisiana Civil Code, relating to the liability of the owner of an animal, was construed to impose liability on the owner "in the nature of strict liability."8 In 1975 there were similar interpretations of article 2318, relating to parents' liability for *Professor of Law, University of Michigan.
    [Show full text]