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Toward a Test for Strict Liability in Torts (with Jon Hirschoff), 81 Yale Law Journal 1055 (1972)

Abstract

The fifteen years since Fleming James addressed the question of whether manufacturers should be liable without negligence have seen a remarkable expansion in the scope of strict liability in the law of torts, yet the very courts which have been the leaders in this trend have been consistently troubled by the question of how far strict liability should extend within the areas in which it is being applied. While strict liability of the manufacturer for product defects, for example, has been announced in jurisdiction after jurisdiction, in many jurisdictions this has simply led to a morass of questions regarding the definition of "defect" and how liability for a defect relates to (a) adequacy of warnings, (b) unexpected or improper use, (c) assumption of risk, and even (d) contributory negligence. Nor is this at all surprising. Strict liability has never meant that the party held strictly liable is to be a general insurer for the victim no matter how or where the victim comes to grief. General insurance was not the rule in classical instances of strict liability, such as ultrahazardous activities, or in legislatively mandated instances, such as workmen's compensation, and it is not the rule in the recent instances of application such as products liability. The questions which the courts now find themselves asking (and being asked) in the new areas of application, such as products liability, involve the same basic issue as did equally difficult questions faced in traditional areas of strict liability, which were couched in words such as "natural or unnatural use" and "arising out of and in the course of employment." The issue is just where strict liability should stop.

Date of Authorship for this Version

1972

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