Law Commons^™

The Application Of Product Liability Principles To Publishers Of Violent Or Sexually Explicit Material, Richard C. Ausness

Law Faculty Scholarly Articles

There have been a number of tragic incidents during the past few years in which mentally unstable teenagers have carried guns into school and shot teachers and fellow students. These schoolyard killings have generated an intense debate about the problem of violence in our society. Some social commentators have attributed teenage violence to the widespread availability of firearms, while others blame parental neglect, lack of discipline in the schools, or the declining influence of religion and morality in contemporary culture. However, another source of concern is the popular media, which stands accused of purveying sex and violence on a massive …

“Waive” Goodbye To Tort Liability: A Proposal To Remove Paternalism From Product Sales Transactions, Richard C. Ausness

Law Faculty Scholarly Articles

This Article argues that waivers of tort liability should be permitted in connection with product sales. Currently, sellers cannot limit their liability under tort law for personal injuries caused by defective products even though such waivers are allowed, albeit reluctantly, under principles of negligence and warranty law. Existing principles of products liability law should be modified, either by legislation or by court action, to allow at least limited use of these waivers.

When Warnings Alone Won’T Do: A Reply To Professor Phillips, Richard C. Ausness

Law Faculty Scholarly Articles

In his paper, Professor Phillips contends that questions about the adequacy of a product's design should be resolved by the use of a risk-utility test and that the existence of an adequate warning should merely be one factor for the jury to take into account. This is essentially the position espoused by the Restatement (Third) of Torts: Products Liability (hereinafter Third Restatement), section 2, comment l. On the other hand, Professor PhiIlips is very critical of subsections 6(c) and 6(d). These provisions establish liability for the sellers of prescription drugs and medical devices. Section 6(c), which is concerned …

Toward Justice In Tobacco Policymaking: A Critique Of Hanson And Logue And An Alternative Approach To The Costs Of Cigarettes, Richard C. Ausness, Paul A. Lebel

Law Faculty Scholarly Articles

Much of tobacco policymaking has been driven by economic and political forces. Professors LeBel and Ausness offer an alternative approach to tobacco policymaking that places justice concerns at the center of the analysis. Their article presents a detailed critique of a significant recent work by Professors Hanson and Logue advocating extensive tobacco industry liability on economic efficiency grounds. Asserting that a “fresh start” is necessary, LeBel and Ausness identify the interests at play in the tobacco policy arena. Instead of an ambiguous "interest balancing" approach, they construct a policy model that grounds those interests in justice considerations, demonstrating how claims …

Replacing Strict Liability With A Contract-Based Products Liability Regime, Richard C. Ausness

Law Faculty Scholarly Articles

When strict products liability first appeared on the scene some thirty-five years ago, it was heralded as a boon to consumers whose claims to compensation had hitherto been frustrated by the law of sales. Warranty law, it was said, worked fairly well in purely "commercial" transactions, but tort law did a better job in cases where ordinary consumers suffered personal injuries or property damage from defective products. To be sure, defenders of warranty law pointed out that the newly-drafted Uniform Commercial Code (the "Code" or "U.C.C.") was much more consumer friendly than the old Uniform Sales Act. Nevertheless, the proponents …

Toward The Proper Role For Mass Tort Class Actions, Mary J. Davis

Law Faculty Scholarly Articles

This Article seeks to advance the use of mass tort class actions and proposes that they are not only appropriate, but desirable, when evaluated against the backdrop of substantive tort law policies. Moreover, the substantive goals of tort law as applied in the mass tort context support the conclusion that the individualized case-by-case adjudication standard, as applied through our adversary system as it is presently constituted, fails to further the search for fairness as well as truth in the mass tort context, and therefore, does not achieve the fairness or justice that we seek through our judicial process.

The guiding …

Paying For The Health Costs Of Smoking: Loss Shifting And Loss Bearers, Richard C. Ausness

Law Faculty Scholarly Articles

Cigarette smoking is known to cause cancer, heart disease, and respiratory problems. These health costs are enormous, amounting to more than $50 billion per year. Although some of these costs are borne by smokers, many of them are externalized to nonsmokers. Recently, a number of states have sued tobacco companies in or- der to recover the costs of treating smoking-related diseases through their Medicaid programs. At the present time, the parties have agreed to a settlement that obligates the tobacco companies to pay billions of dollars to the states over the next twenty-five years. In other words, some of the …

Product Category Liability: A Critical Analysis, Richard C. Ausness

Law Faculty Scholarly Articles

Professor Wertheimer has proposed that courts be allowed to hold producers strictly liable for product-related injuries, even though their products are not otherwise defective, as long as the overall risks associated with such products outweigh their benefits. However, this would subject the sellers of inherently dangerous products, such as cigarettes, to potentially devastating liability since their products cannot be made less dangerous. There are better ways to control the consumption of hazardous products if society wishes to do so.

Part I of this article discusses the scope and purpose of the defect requirement in section 402A and in the proposed …

Mass Tort Litigation: Congress's Silent, But Deadly, Reform Effort, Mary J. Davis

Law Faculty Scholarly Articles

This article explores the ways in which The Common Sense Product Liability and Legal

Reform Act (“Act”) treats mass tort litigation issues. The Act does so both directly and indirectly. The direct methods of reform are mostly industry-specific and, thus, almost inconsequential in contrast to the indirect treatment. The indirect, almost clandestine, methods of reform are the most insidious and provide the most cause for concern as Congress once again attempts to "reform" products liability by reintroducing the Act in 1997. Given the President's early indication that a reform measure could meet with his approval, but that this one in …

An Insurance-Based Compensation System For Product-Related Injuries, Richard C. Ausness

Law Faculty Scholarly Articles

In recent years, an increasing number of commentators have begun to express doubts about the effectiveness of the tort system. According to these critics, tort law does not deter accidents, nor does it spread accident costs efficiently. Worst of all, the tort system is extremely expensive to operate. Some of this criticism has spilled over into the products liability area. Products liability law has been condemned as expensive, ineffective, and regressive; in addition, it has been blamed for higher product prices, foreign competition, problems within the liability insurance industry, corporate bankruptcies, lack of product development, and the removal of useful …

The Supreme Court And Our Culture Of Irresponsibility, Mary J. Davis

Law Faculty Scholarly Articles

This article chronicles the Supreme Court's expansion of the “culture of irresponsibility,” where institutional defendants are freed from tort liability with no check on the abuse of such immunity. Professor Davis describes the Court's progression toward immunity in products liability decisions of the past decade including East River Steamship, Boyle, Cipollone, and Lohr. Noting the effect of the Court's decisions in promoting institutional irresponsibility, Professor Davis encourages the Court to use its “cultural influence” and reconsider its broad extension of immunity which has spread to situations and institutional defendants the Court never imagined.

Learned Intermediaries And Sophisticated Users: Encouraging The Use Of Intermediaries To Transmit Product Safety Information, Richard C. Ausness

Law Faculty Scholarly Articles

The general rule, under both negligence principles and strict products liability, is that a producer or supplier is required to warn users or consumers of its products. In most cases, this duty can be satisfied by placing a warning label on the product itself or by providing safety information in an owner's manual or in other literature attached to or enclosed with the product. However, there are some situations where it is difficult or impracticable to provide a direct warning to the ultimate user or consumer. In such cases, producers and suppliers should be able to satisfy their duty to …

The Case For A "Strong" Regulatory Compliance Defense, Richard C. Ausness

Law Faculty Scholarly Articles

Federal administrative agencies have established safety standards or licensing procedures for airplanes, motor vehicles, pesticides, drugs, medical devices, and a variety of other products. At the same time, product sellers are subject to tort liability even though their products comply with applicable federal safety standards. Product sellers maintain that compliance with federal safety standards ought to protect them from liability under state tort law and have relied upon several legal principles to support this claim. The first, and most successful, theory is federal preemption. Under this concept, Congress may expressly or impliedly assert the primacy of federal law under the …

They Came From "Beyond The Pale": Security Interests In Tort Claims, Harold R. Weinberg

Law Faculty Scholarly Articles

"[B]eyond the pale" is how the drafters of Article Nine of the Uniform Commercial Code regarded tort claims. They considered tort claims to be noncommercial assets inappropriate for inclusion as collateral within the scope of a commercial financing statute. Tort claims may not be out-of-bounds much longer. The Article Nine Study Committee of the Permanent Editorial Board for the Uniform Commercial Code recommends expansion of the Article's scope to encompass security interests in claims arising out of tort. This recommendation is significant. Tort causes of action comprise an ever-expanding universe of civil wrongs for which courts afford redress. The owners …

Tort Liability For Asbestos Removal Costs, Richard C. Ausness

Law Faculty Scholarly Articles

During the past twenty years, Congress and the general public have become increasingly aware of the health hazards caused by exposure to toxic substances. Consequently, Congress has enacted statutes, such as CERCLA, requiring parties who are responsible for toxic waste to clean up the toxic waste sites and to reduce the level of toxic chemicals in the environment. Asbestos is one toxic substance that government has targeted in particular. The federal government and many states have enacted laws requiring asbestos-containing materials to be segregated or removed from schools and public buildings.

Even when government regulations do not mandate specific abatement …

Individual And Institutional Responsibility: A Vision For Comparative Fault In Products Liability, Mary J. Davis

Law Faculty Scholarly Articles

Since the adoption of strict products liability over the last thirty years, two problems of scope have received the most attention: how to define product defectiveness to which the liability attaches, and how to limit the potentially limitless liability through defenses. Much like the industries of the nineteenth century, product liability defendants of the twentieth century turned to the plaintiff's conduct as a main line of defense. Blaming the victim has historically been a powerful tool for tort defendants to evade responsibility for their conduct. This Article proposes that the defenses based on victim fault that have evolved in our …

Design Defect Liability: In Search Of A Standard Of Responsibility, Mary J. Davis

Law Faculty Scholarly Articles

Responsibility for the consequences of our own actions and occasionally for the actions of others seems to have been largely forgotten as a foundation for governing conduct. This Article advocates re-emphasizing responsibility in one important area, that of manufacturer liability for product design. To that end, the author proposes the highest standard of conduct by which to judge product manufacturers' design decisions. The standard proposed in this Article is higher than merely reasonable, prudent conduct and is not the allegedly "strict" liability frequently imposed. The standard this Article proposes reflects an emphasis on responsible conduct in light of the special …

Federal Preemption Of State Products Liability Doctrines, Richard C. Ausness

Law Faculty Scholarly Articles

Federal agencies now regulate the manufacture, design, and labeling of hundreds of consumer products. For example, the Consumer Product Safety Commission promulgates "consumer product safety standards" for a number of consumer products. Likewise, the National Traffic and Motor Vehicle Safety Act of 1966 authorizes the National Highway Transportation Safety Administration to develop safety standards for automobiles and other motor vehicles. Additionally, the Food and Drug Administration (FDA) exercises extensive control over prescription drugs, biologics, medical devices, and over-the-counter drugs. The FDA also regulates food labeling.6 Finally, Congress has established statutory labeling requirements for cigarettes, smokeless tobacco products, and alcoholic beverages. …

The Impact Of The Cipollone Case On Federal Preemption Law, Richard C. Ausness

Law Faculty Scholarly Articles

The United States Supreme Court handed down an opinion in the Cipollone case on June 24, 1992. Justice Stevens, writing for the majority, concluded that the Federal Cigarette Labeling and Advertising Act preempted all tort claims against cigarette manufacturers based on failure to provide adequate warnings about the health risks of smoking. However, the Court also held that claims based on breach of express warranty, misrepresentation, and conspiracy were not preempted by the Act. Thus, although Cipollone represents a clear victory for tobacco companies, it also leaves the door open for future litigation. The first part of this Article will …

Compensation For Smoking-Related Injuries: An Alternative To Strict Liability In Tort, Richard C. Ausness

Law Faculty Scholarly Articles

The Surgeon General has described cigarette smoking as the "single most important preventable environmental factor contributing to illness, disability and death in the United States." Each year, smoking-related diseases claim more than 350,000 lives. Smoking-related illnesses also impose a huge economic burden on society. Estimates of health care costs range from $12 billion to $22 billion per year, and productivity losses due to illness and death are even greater.

Arguably, cigarette companies and their customers ought to bear the health costs of smoking. At the present time, however, the tobacco industry has largely escaped responsibility for these costs. Instead, smoking-related …

Unavoidably Unsafe Products And Strict Products Liability: What Liability Rule Should Be Applied To The Sellers Of Pharmaceutical Products?, Richard C. Ausness

Law Faculty Scholarly Articles

Injuries from adverse drug reactions have increased dramatically in recent years. This increase is largely attributable to the changing nature of pharmaceutical products. First of all, more pharmaceutical products are currently available to physicians than ever in history. Presently, there are more than ten thousand prescription drugs on the market, and each year four hundred to five hundred new ones are introduced. Second, modern drugs often are more potent than their older counterparts, thus increasing the likelihood of adverse reactions.

It should come as no surprise that this rise in the number of drug-related injuries has led to a comparable …

Automobile Accident Litigation In Kentucky, Office Of Continuing Legal Education At The University Of Kentucky College Of Law, Robert D. Monfort

Continuing Legal Education Materials

A practitioner's handbook that walks attorneys through the litigation processes arising from automobile accidents and related issues.

Cigarette Company Liability: Preemption, Public Policy And Alternative Compensation Systems, Richard C. Ausness

Law Faculty Scholarly Articles

This Article speculates that some courts may have used the preemption doctrine to mask their misgivings about the ability of tort litigation to provide fair compensation to injured consumers without bankrupting the tobacco industry. Consequently, the author suggests that it may be necessary to streamline the litigation process for mass torts or perhaps even to replace it with an alternative compensation system for the purpose of adjudicating smoking-related claims.

With this in mind, Part I briefly examines the health risks of smoking and the nature of the common law duty to warn. It also reviews a number of recent cigarette …

Strict Liability For Chattel Leasing, Richard C. Ausness

Law Faculty Scholarly Articles

Leasing has become an increasingly popular substitute for outright purchases as a means of acquiring products for use. Few courts and commentators, however, have addressed the question of whether the principles of strict products liability which apply to sellers also apply to lessors. In this Article, Professor Ausness reviews the historical basis for imposing strict liability in tort on sellers and applies these rationales to five basic kinds of lease transactions. He concludes that strict liability should not apply when a product defect arises after the leased product is placed in the hands of the lessee (as contrasted with the …

Surrogate Immunity: The Government Contract Defense And Products Liability, Richard C. Ausness

Law Faculty Scholarly Articles

The government contract defense is an affirmative defense that shields a manufacturer from liability if the product causing injury complied strictly with design specifications set forth in a government procurement contract. The defense was first used by public works contractors to bar claims against them for damage to land and other property. However, in recent years, product manufacturers have invoked the government contract defense to avoid liability to third parties for defectively designed products supplied to the government.

Despite widespread judicial acceptance of the government contract defense in products liability litigation, a number of issues are still being hotly debated. …

Apportionment In Kentucky After Comparative Negligence, John M. Rogers

Law Faculty Scholarly Articles

Adoption of comparative negligence gives juries the task of allocating fault between a plaintiff and a defendant when both were negligent and both caused the plaintiff's injury. A logical corollary must be that juries are theoretically and practically able to make such an allocation. If so, it follows that juries are able to make such an allocation among multiple defendants, each of whom was found to be both negligent and a cause of the plaintiff's injury. The judicial adoption of comparative negligence in Kentucky therefore requires a reexamination of the rules applicable to multiple tortfeasors. Cases decided since the adoption …

Retribution And Deterrence: The Role Of Punitive Damages In Products Liability Litigation, Richard C. Ausness

Law Faculty Scholarly Articles

Punitive damages constitute an award to an injured party above what is necessary to compensate for actual loss. This Article considers whether punitive damages are an effective means of promoting the goals of products liability law. Section I traces the use of punitive damages in products liability litigation from the early 1960's to the present time. Section II examines the traditional rationales for punitive damages and considers whether they are appropriate in the products liability context. Finally, Section III evaluates some of the measures that commentators have proposed to adapt more fully the concept of punitive damages to products liability …

A Comparative Negligence Checklist To Avoid Future Unnecessary Litigation, John M. Rogers, Randy Donald Shaw

Law Faculty Scholarly Articles

Systems of comparative negligence, whereby the negligence of a plaintiff serves to reduce rather than to preclude tort recovery in negligence, have been adopted in thirty-nine states. The common law rule that contributory negligence is an absolute bar to recover is still the law in Kentucky, although modified by the doctrine of “last clear chance.” Kentucky may soon join the trend toward comparative negligence, however. In the last legislative session, bills to adopt comparative negligence were introduced in both the House of Representatives and the Senate. A hearing on this subject was held by the Interim Judiciary and Civil Procedure …

Kentucky Tort Law: Defamation And The Right Of Privacy, Richard C. Ausness

Law Faculty Scholarly Articles

This book review examines Kentucky Tort Law: Defamation and the Right of Privacy by David A. Elder, which was published in 1983.

A Comparative Negligence Checklist To Avoid Future Unnecessary Litigation, John M. Rogers, Randy Donald Shaw

Law Faculty Scholarly Articles

Systems of comparative negligence, whereby the negligence of a plaintiff serves to reduce rather than to preclude tort recovery in negligence, have been adopted in thirty-nine states. The common law rule that contributory negligence is an absolute bar to recovery is still the law in Kentucky, although modified by the doctrine of "last clear chance." Kentucky may soon join the trend toward comparative negligence, however. In the last legislative session, bills to adopt comparative negligence were introduced in both the House of Representatives and the Senate. A hearing on this subject was held by the Interim Judiciary and Civil Procedure …