February 8, 2008
Calnan on Products Liability
Under this approach, courts would categorize products liability cases according to the type of use the plaintiff-consumer made of the product at the time he was injured. The categorization would have both substantive and procedural effects. Criminal or intentionally destructive uses would bar recovery altogether. Reckless or idiosyncratic uses would create a presumption of no-liability. Common ancillary uses would require expert evidence of defectiveness. Intended uses would create a presumption of liability, and intended uses of products violating statutes or regulations would result in absolute liability. By adapting liability schemes to consumer behavior, this five-tiered approach promises not just to clarify the law, but to better serve the Restatement Third`s objectives of efficiency and fairness.
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