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Full-Text Articles in Torts
Fixing Failure To Warn, Aaron D. Twerski, James A. Henderson Jr.
Fixing Failure To Warn, Aaron D. Twerski, James A. Henderson Jr.
Cornell Law Faculty Publications
Design-defect and failure-to-warn cases share the same structural elements. Just as the defendant cannot defend a case premised on defective design without knowing the specifics of how the plaintiff would redesign the product to make it safer, so with regard to defective warnings the plaintiff cannot challenge the reasonableness of the defendant's marketing or whether better warnings would have saved the plaintiff from injury without knowing the specifics of the proposed warnings. No court would accept as adequate a statement by the plaintiff that she has a general idea for a reasonable alternative design (RAD), and no court should accept …
Closing The American Products Liability Frontier: The Rejection Of Liability Without Defect, James A. Henderson Jr., Aaron Twerski
Closing The American Products Liability Frontier: The Rejection Of Liability Without Defect, James A. Henderson Jr., Aaron Twerski
Cornell Law Faculty Publications
For over one hundred years American courts expanded the rights of plaintiffs in products liability cases. First the courts eliminated the privity requirement, next the necessity of proving fault, and finally, the necessity of proving a production defect. The next logical step in this progression would be to eliminate the need to show any type of defect at all. In this Article, Professors Henderson and Twerski assert that this step cannot and will not be taken. They explore both the possibility of across-the-board liability without defect and the more limited idea of product-category liability without defect. They describe how a …
Doctrinal Collapse In Products Liability: The Empty Shell Of Failure To Warn, James A. Henderson Jr., Aaron Twerski
Doctrinal Collapse In Products Liability: The Empty Shell Of Failure To Warn, James A. Henderson Jr., Aaron Twerski
Cornell Law Faculty Publications
Liability for a manufacturer's failure to warn of product-related risks is a well-established feature of modern products liability law. Yet many serious doctrinal and conceptual problems underlie these claims. Professors Henderson and Twerski explore these problems and argue that failure-to-warn jurisprudence is confused, perhaps irreparably, and that this confusion often results in the imposition of excessive liability on manufacturers. The authors begin by exposing basic errors resulting from courts' confusion over whether to apply a strict liability or a negligence standard of care in failure-to-warn cases. Having determined that negligence is the appropriate standard, they then examine more substantial and …