Economics

The Toyota Recall and the Failures of Product Liability Law

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Writing at Forbes, University of Chicago law professor Richard Epstein argues that the Toyota recall scandal offers a good opportunity to consider just how far product liability law has strayed from cases (like that of Toyota) where a product fails during the course of ordinary use:

As an old-style libertarian, I have long argued for a narrow definition of product defect that stresses the traps that products may create for people who use them in a normal and proper fashion. The mainstream business skeptics, led by the late John Wade, dismissed that definition as hopelessly narrow. By the late-1960s they persuaded courts to adopt a "risk/utility" analysis that empowers a jury to decide whether "the foreseeable risks of harm could have been reduced or avoided by some alternative design that renders a product not reasonably safe."

This broad definition sweeps within its confines the modern "crashworthiness" case that lets a jury hold a manufacturer liable when a drunk driver wraps his car around a telephone pole while driving 80 miles per hour. After all, that side panel could have been thicker or the gas tank relocated. Note that in theory every single car of the same make or model could be treated defective once a single jury decides that a certain design feature is not up to snuff.

But now ask this question. Does every automobile manufacturer recall each model car that some jury deems defective under this exotic risk/utility analysis? Not on your life. This broad standard allows runaway juries to conclude that every car on the road suffers from dozens of design defects. Try to cure them all simultaneously and the jury-rigged vehicle would be an overweight tank that could not move, let alone get decent gas mileage. Modern product liability law is an expensive litigation game operated by and for the benefit of lawyers. Rarely does anyone pay the slightest attention to how these cases come out in choosing their next car.

Read the whole thing here.

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  1. Rarely does anyone pay the slightest attention to how these cases come out in choosing their next car.

    Tell that to those poor souls that tried to trade-in or sell their Ford Pintos.

    1. Compare the exploding Pinto sales with that of the rusting Chevy Vega. Also compare the longevity of the model’s production runs.

      If you can find info that shows that the Pinto had a lower trade-in value than a comparable Vega, let me know.

      1. Both the Pinto and the Vega were run thru the muck in the press. I don’t think that just because the Vega’s rep was hurt by news stories, means that the Pinto’s rep and therefore resale price could not have been also independently hurt by news stories.
        I had a Vega in the early ’70s and my father had a couple as well. Neither of us had a minutes problem with them. Amazing how that aluminum engine would perform if you followed the maintenance schedule in the owner’s manual. Like no shit, an aluminum motor is more susceptible to damage from heat than a cast iron motor. Still neither the Pinto or Vega was as bad as a LeCar, aka Renault 5.

        1. I bey you didn’t have the early aluminum cylinders.
          They were sorta OK once GM steel-sleeved the cylinders.They were fine when owners used the Monza engine mounts and swapped in small block V8s

          1. Chevy stayed with the all-aluminum block till the very end. Standard production Vegas never had sleaved engines.

            Youre’re correct that they were excellent with small block Chevy emgines in them. They also had a great frontend that was in demand by street rod builders for years.

            1. You are correct on the aluminum cylinders.While checking that I was shocked to see the Cosworth Vega cost nearly as much as a ‘vette!

              1. Yeah, kind of blows the whole concept of an economy compact car, doesn’t it?

                Frankly for that kind of money there were a buch of better cars around at the time. Still, I believe Cosworth Vegas still commanded high prices into the 90s.

        2. I haven’t read it since high school, but John Delorean’s account of the development of that engine is pretty interesting. If I recall correctly, the original lacked cylinder sleeves as are common in aluminum blocks.

    2. Pintos were good cars for their time.That’s why Ford sold so many of them. They provided the most durable,efficient, and cheapest fleet vehicles the Feds ever bought.Pintos excelled in SCCA racing.You can still see them there.

      1. My father bought a Pinto Station Wagon in 1983, and the little vehicle got us by for most of 1984. It was a reasonable good car, easy to maintain – unfortunately, ours drank oil like nobody’s business!

      2. They were scary cars to drive, were underpowered, and the engines wore out at about 120K.

        Their sole virtue was that they were really cheap to buy and drive, especially after the used prices plummeted after the exploding gas tank scare.

        Frankly, the gas tanks were one of the least worrisome things about them.

        But, if your choices were riding a bicycle or motorcycle, or driving a car, the Pinto was a good bargain.

  2. I am in the market for a used pickup and I am hoping that Toyota’s loss will be my gain. I haven’t gotten serious about looking yet, but until Toyota’s latest troubles, I did not figure on even looking at a Tundra.

    1. I have a 2008 Tundra. Nice truck.

    2. At least in my area (Atlanta) it’s very hard to find a used Toyota truck with < 100K miles on it (and those generally run fine). People tend to keep them for a long time, with good reason.

  3. Tell that to those poor souls that tried to trade-in or sell their Ford Pintos.

    I used to own a Pinto — I was nearly broke, and the price had been beaten down so much by the bad publicity that it was way cheaper than comparable cars.

    It was still a piece of shite, but an affordable piece of shite.

    1. A friend of mine bought a Pinto at auction for $200,put 60k on it over 3 years and sold it at the same auction for $600.

  4. Two doctrines that went by the wayside paved the way for the product liability scam:

    (1) Assumption of the risk – if the risk of using the product in the way you did was apparent to a reasonable person, you can’t recover if you are injured.

    (2) Contributory negligence – if you acted negligently in causing the harm you suffered, you can’t recover.

    But personal responsibility is so overrrated, when there are pockets to be picked.

    1. Trial lawyers spend more on politicians than the entire health care industry. It turns out lawyers are better than corporations at gaming the finance restrictions.

      1. It is because corporations are large and small in number. In contrast, plaintiffs lawyers are small firms and many in number. When you have a thousand dollar contribution limit, you need large numbers of cash flush people not a few big entities. Lawyers are perfect for that system. there are millions of them and each of them ready and willing to give their $1000 share to be bundled up to the right candidate.

      2. The plaintiffs’ bar seemingly has had no trouble in making its voice heard in Washington. And at the state capitals. What was the point of that McCain-Feingold thingee again?

        1. Jeez ProLib, do I have to explain everything to you?

          McCain Feingold was all about incumbent protection.

          1. Sounds like a scam to me.

    2. And don’t forget proximate cause. In the bad old days of the common law, the proximate cause of you dying was you getting drunk, driving 90 and wrapping yourself around a telephone poll. In our more enlightened era, the whole thing is GM’s fault for not anticipating that you would do this and building their car accordingly to save your sorry ass.

      The irony is that liberals, who at least claim to want to help the poor, have done more to fuck the poor, by eliminating cheap but riskier products, through strict liability than just about anyone over the last forty years. All so Beavis and Butthead can recover for their injuries.

      1. The irony is that liberals, who at least claim to want to help the poor, have done more to fuck the poor, by eliminating cheap but riskier products, through strict liability than just about anyone over the last forty years. All so Beavis and Butthead can recover for their injuries.

        Remember when they tried lawsuits against gun manufacturers because of what criminals were doing with guns?

    3. It’s been a while since I thought much about products liability (other than trying to mitigate exposure to it contractually), but isn’t the problem with discussing comparative/contributory negligence and PL that the latter is strict liability?

      As for assumption of risk, the only place that seems to apply anymore is when you sign up to jump off a cliff or something else obviously hazardous.

      1. Products liability was a very late developing area of the law. Before the landmark products liability cases, you just had an ordinary negligent claim. You had to prove that the manufacturer did something negligent that was the proximate cause of your injuries.

        That made it very hard to win these cases against product manufacturers. You could win if you could prove that the product had been negligently manufactured. But that was hard because you would also have to prove that you were using the product properly and the defect was latent rather than patent. You could also win for negligent design, but it is pretty rare for a product to be truly of negligent design. If it was and was killing its customers, it wouldn’t be on the market too long or make it to market at all.

        So, they came up with the concept of “strict liability” which basically said that the manufacturer was responsible for any harm their product did as long as it was the result of foreseeable use. Before strict liability, if I got my foot cut off by a lawnmower that didn’t have a foot guard, I would not be able to collect because the product functioned as it was designed, the risk of putting my foot under it was obvious, and it was my own fault for sticking it there. But under strict liability, I could recover on the theory that it was foreseeable that people would stick their feet under the mower and therefore the manufacturer should have to pay for failing to design their product to deal with that eventuality.

        1. Good summary. I recall from the torts course I took in law school that courts gradually expanded the scope of liability because the corporations had “deep pockets” and were a source of funds to compensate injured persons. It seemed that mattered as much, or more, than whether the plaitiff was actually resposible for what happened.

          1. The way I heard it, the courts decided it was better to have a strict liability standard, so that the manufacturer would price its products with the cost of safety/lawsuits built in.

          2. In other words, the cost of a product liability lawsuit would be “redistributed” to the rest of society. The courts had no illusions that corporations had “deep pockets” and there would be no societal effect of increasing product liability claims.

      2. Admirably summarized, John.

        1. Thank you. I got an A+ in torts back in the day.

        2. And, not a single spelling error. I smell plagiarism.

          1. Ziss iss just zee sharing of authentic experience, capitalist troll pig!

          2. What does your Turnitin analysis say?

  5. “It was still a piece of shite,” but at least it wasn’t a Renault LeCar. Now that was a piece of shite!

  6. This is nothing more than vulgar libertarian propoganda. This dude needs to be branded with the scarlet letter “V” across his forehead.

  7. “This broad definition sweeps within its confines the modern “crashworthiness” case that lets a jury hold a manufacturer liable when a drunk driver wraps his car around a telephone pole while driving 80 miles per hour.”

    Let’s all pretend that product liability cases are all about drunks getting a windfall from pious manufacturers. We’ll let Ayn Rand write the recap for the 11 O’Clock news.

    Say what you will about this bullshit article, but the threat of a class action suit has more coercive effect than mere “bad publicity” for the simple fact that the class action suit brings bad publicity AND damages.

    And really, let’s say the guy is drunk, and the car is designed to blow up on impact. Does the drunkenness of the plaintiff make the car any less dangerous?

    1. Lets think about the costs to society of manufacturers having to gold plate every product out of fear of law suit. The fact is that sometimes the cheaper and more risky product is all someone can afford. They are deprived of that option unilaterally by the courts.

      Maybe every lawnmower should have a foot guard. Maybe every ladder should have a big warning on it about not putting it against power lines. But, I think I as a consumer ought to be able to make that decision, not some jury in Alabama.

      1. I get your point, but it isn’t long before a mower with a foot guard is made for the lower price point. Innovation isn’t just about inventing the foot guard, but making it available to everyone. Besides, there are a number of used mowers on the market that are in the price range of the poor. There is no entitlement to brand new products, and the courts don’t order older products recalled and destroyed.

        But the thing that gets under my skin is that Epstein just assumes that the lawnmower is fine, and that the drunken stooge is always at fault. Well, sometimes the design is just f*cking dangerous and yet it makes it to market. It’s not a result of evil, more like oversight. But it happens. You can’t possibly test a product better than 300 million people. I understand that. But to say that you aren’t responsible for your bad design as part of an “incentive to produce more” policy doesn’t fly with me.

        1. If the design is bad, sue under negligence.

          1. The same negligence you said was untenable above?

          2. If the design is bad, sue under negligence.

            Or, just don’t buy it!

            1. Puleeeze. I slapchopped my shamwow and now my nuts don’t hold their weight in liquid.

        2. That’s not what Epstein is saying. He IS saying that obvious defects should be a recoverable action. You are ranting against a point he never made.

          1. No, I’m not. If the flaw were “obvious” it would not make it to market. Sometimes the design flaw isn’t apparent until millions of people use the product. But the consumers aren’t the ones who put the design flaw in there.

          2. He IS saying that obvious defects should be a recoverable action.

            But if the defect is truly obvious, then a reasonable user would be aware of it, and would be using it with knowledge of the defect, wouldn’t they? So why should they be entitled to recover?

            1. Good point! I have no counter for it…

              1. That’s why RC Dean gets hired and I don’t get decent billables!

                1. RC Dean is the shiznit…that is all…

    2. Re: Lamar,

      but the threat of a class action suit has more coercive effect than mere “bad publicity” for the simple fact that the class action suit brings bad publicity AND damages.

      There are two problems with this:

      1) You assume that sans liability cases, manufacturers would sell unsuspecting (and incredibly stupid) customers defective products.
      2) You are assuming no competition.

      Cases of product defects are actually pretty rare, precisely because manufacturers want repeat customers. They want to MAXIMIZE their utility and that cannot be done by selling overtly dangerous products.

      The other issue is that people already weight quality over cost, and decide against or forgo safety concerns that may call for a much more expensive product than what the product is going to be used for.

      For instance, if I am going to use a vehicle only for commuting to a from work, during day hours, at speeds of no more than 50 miles per hour, I would probably not buy an expensive Volvo/Sherman Tank monstrosity. I would most likely get by with an egg shell on wheels type of vehicle.

      What product liability laws create is a limitation of our choices, and so the choice I mention above would probably not be possible (like buying an egg shell on wheels) because some legislator and some jury already decided I “deserve” a “safer” vehicle, notwithstanding my needs or desires. That is not only an affront to liberty, it makes for creating more expensive products that become less and less affordable for the working poor.

      1. “1) You assume that sans liability cases, manufacturers would sell unsuspecting (and incredibly stupid) customers defective products.”

        Yes, that’s my assumption and I don’t apologize for it. Are most corporations out to kill people? No. But I won’t buy into the idea that loss of reputation is a sufficient disincentive. Corporations have perpetual interests, the men who run them don’t.

        “2) You are assuming no competition.”

        That’s not really it.

        1. Re: Lamar,

          Yes, that’s my assumption and I don’t apologize for it.

          I did not say you needed to apologize for it. I am implying it is a fallacious assumption.

          Are most corporations out to kill people? No. But I won’t buy into the idea that loss of reputation is a sufficient disincentive.

          Really? You think that? Gee, I would hate doing business with you – I would need to bring a 100 page contract just to buy anything you sell! If you don’t think that reputation per se is enough, then: what can YOU bring to the table?

          Really, would you say to a client: I am *so* afraid of liability issues, that my products reflect it? Would that bring confidence to your customer?

          Corporations have perpetual interests, the men who run them don’t.

          That’s absurd. Corporations ARE the people that run them.

          That’s not really it [that I am assuming no competition]

          But that is the only way your assertions make sense: By assuming other manufacturers will NOT take your business the very moment you screw it up. Assuming the existence of only monopolies CAN explain the exsitence of a disdain for reputation and good business practices. But if the former is not the case, then you cannot argue that reputation alone is NOT an incentive.

          1. You are assuming that the competition has a flawless reputation such that a consumer will simply go to the awesome reputation company when their normal company gets a black mark. There is competition, but reputation is only a partial factor.

            1. Re: Lamar,

              You are assuming that the competition has a flawless reputation such that a consumer will simply go to the awesome reputation company when their normal company gets a black mark.

              You don’t think people do exactly that? Don’t you think people listen to the experiences others have with a certain product, or read consumer journals, or see the consumer reviews on TV?

              Besides this, it is not like the competition will passively stay put waiting for their main competitors to screw up – they will build on reputation precisely to take market share from the competition (in order to maximize their utility).

              This is the very reason why big corporations hate the free market, and seek to use (what else) government and regulations to stifle the competition. Liability laws are actually hindrances to competition, not helpers of.

              1. “You don’t think [that] people … listen to the experiences others have with a certain product, or read consumer journals, or see the consumer reviews on TV?”

                Of course they do. Its all part of the calculus.

                1. Re: Lamar,

                  Of course they do. Its all part of the calculus.

                  I don’t know what you meant by that second sentence, but if you accept that people DO actively seek to find about competing manufacturers and competing products, then one does NOT have to “assume” flawless reputations – a reputation is nothing more than the opinion people formulate on another person or company based on their acts and the general opinion of others. It is something one cannot control since it is someone else’s perception, but one can strive to improve it. If people can *know* about your products and quality, then it woulsd be to your advantage that what they FIND OUT is positive. Don’t you agree?

                  Also, you seemed to simply dismiss my question: Would you sell something by emphasizing your fear of liability laws? Do you think that is a better idea than improving your reputation among your customers?

                  Because if, as you said, reputation is no incentive, then there would be NO POINT in developing one. A manufacturer or seller would simply rely on the people’s perception of YOU FEAR of lawsuits. Do you think that alone would attract customers?

                  1. All I’m saying is that (1) business reputation is relative, not absolute, (2) reputation is buy one of many factors people use in making a decision to buy, and (3) I believe the threat of reputational harm, goodwill, etc. is not enough. For some companies it would be, for others it isn’t. The more we discuss this, the more abstract we get. Part of risk taking is the risk that your product will harm people and you will be sunk. Entrepreneurs know this, it’s just part of the bundle of risk they deal with everyday.

                    Would you sell something by emphasizing your fear of liability laws?

                    This is just a roundabout way of asking whether I would emphasize the safety of my goods. Of course I would emphasize safety, as do all car manufacturers.

                    And I didn’t say that reputation is “no” incentive. I said it is “insufficient”. We can argue about it for days, but I haven’t found it to be true in my experience. I’m sure there is a lawyer in a similar position with different experiences that might come out the other way. I don’t.

                    1. Re: Lamar,

                      All I’m saying is that (1) business reputation is relative, not absolute, (2) reputation is bu[t] one of many factors people use in making a decision to buy, and (3) I believe the threat of reputational harm, goodwill, etc. is not enough.

                      No one said it was absolute, as I reiterated above. What I gather from such comment is that you would expect only an absolute determinant of a manufacturer’s good will to be acceptable. That may be your opinion if you are willing to pay the premium.

                      For some companies it would be, for others it isn’t.

                      Why are you so worried? It is not like those manufacturers for which Reputation is a secondary consideration have a guarranteed existence, don’t you think?

                      Part of risk taking is the risk that your product will harm people and you will be sunk. Entrepreneurs know this, it’s just part of the bundle of risk they deal with everyday.

                      Granted. But it is not like the entrepreneurs ignore the risk, or are you willing to assert they do as a matter of routine?

                      This is just a roundabout way of asking whether I would emphasize the safety of my goods.

                      That’s not true, not even close. A company can emphasize the safety of their products as a strategy to capture the safety-conscious consumer, but that in itself does not mean ipso facto a company is advertising its FEAR of Product Safety Laws.

                      And I didn’t say that reputation is “no” incentive. I said it is “insufficient”.

                      Indeed, you said it, but I was giving you the benefit of the doubt, since stating that reputation is NO incentive is more easily defendable than saying it is “insufficient”, a question-begging assertion. Which one do you prefer?

                      We can argue about it for days, but I haven’t found it to be true in my experience.

                      If MY job depended on having the mindset that defendants are guilty and rotten to the core, *MY* experiences would most likely match YOURS.

                      Since I don’t have that mindset, but instead use REASON to determine how people ACT, and WHY (which is what economics is all about), then my experiences do not seem that gloomy.

                      Let me give you an example, before you leave:

                      I can deduce that Product Safety laws actually makes consumers LESS safe. The reason? Moral Hazard.

    3. Think you’re arguing a strawmanperson. I believe your example is one that Epstein’s suggesting would make sense to pursue.

      It’s the cases where the car’s (or whatever’s) been designed to all stds/law/regulations/etc., and does not have a “defect”, but the drunk/stupid/ignorant/unlucky person sues…cause something bad happened so the corporashun should pay…cause no one else can/appears obliged to, and we can’t have that cause the poor bastard’s confined to a wheelchair/bed/iron lung now [deep breath] that is so infuriating.

      1. “…are so infuriating.”

        That’s what I get for going on a rant

      2. RE: “drunk/stupid/ignorant/unlucky person”

        This is the crux of the argument. What is a stupid person?

        1. You don’t have to define “stupid”- you only have to define “reasonable”.

          If a design “flaw” only appears when you drive into a tree at 90 mph, then it is unreasonable to design for that.

          1. Why? They were the ones that designed the car to go 90 mph, yet they can’t be bothered to make it safe at the speed the designed it to reach?

            1. They design it go to 90 for the one in a million chance you may need to drive that fast for a short period of time. The driver still should have the responsibilty of gauging road conditions, his/her capabilities, and the need to go that fast in the first place.

              A car would have to be a tank to survive a crash like that 100% of the time, which seems to be the position you are taking. Then you have the problems of expense and gas mileage, which have been the point made in this column all along.

              1. In my experience, nobody who crashes at 90mph sues because they didn’t survive the crash (the estate, that is). It would usually be because the steering doesn’t work at 90, or something else. It is a big fat red herring to say that products liability is about making a car survive a crash at 90mph because it is not possible nor reasonable. No matter how much you talk about “overengineering”, if you make the car go 90mph, and the car is unsafe at that speed, then you have underengineered the car.

                1. As a professional engineer who works on safety-critical systems, I can assure you that you are a fucking idiot.

                  1. And as a lawyer who defends your dumb, narrow minded engineer asses, I can tell you that you are a fucking idiot. But that wouldn’t be true.

                    1. I could tell you were a laywer.

                    2. All we need now is an insurance underwriter. I’m surprised nobody has brought up insurance in this debate.

                2. But if the “unsafeness” of the vehicle at that speed is readily apparent to a reasonable user, does that still make the manufacturer liable?

                  I have a truck with enough engine HP to push itself into the triple digits a good ways. However, the suspension and body aero are nowhere near up to the task of keeping the truck stable at those speeds. It announces this inadequacy well in advance – you’d only miss it by actively ignoring it.

                  I, being a (sometimes) reasonable person deal with this issue by refusing to drive the truck any faster than 85 or so. But if I cranked that sucker up to 125 and then failed to negotiate a turn as a result of the poor handling of the truck at that speed, should I be able to recover my injuries from the manufacturer?

                3. The car’s not unsafe at that speed – the person who can’t keep it out of the trees is.

                  Car’s perfectly safe…if you can drive it. Steering doesn’t “fail” – one’s ability to negotiate a corner does.

                  So – not a “defect” or liability issue that the car can GO 90. I would agree it would be a “defect” and incur liability if something broke at that speed due to poor design (and wasn’t due to neglect of proper maintenance etc. etc. etc.)

                  1. I saw a product defect in a Camry on the drive home tonight.

                    I caught up to the car, since it was driving with no lights, to tell the twit to turn them on. Then I saw why they were off: that increasingly popular feature in Japanese cars, the perpetually lit dashlights! With no DRLs!

                    Engineering: FAIL.

                    1. Why no perpetually lit running lights? One thing I remember from when I had a VW with daytime running lights: people would always get your attention to “let you know” that your headlights were on during the day. Kind spirited certainly, but the daytime running lights is a design flaw that is very distracting and could kill people!

        2. “This is the crux of the argument. What is a stupid person?”

          I think most people use the definition: “Anyone who isn’t me.” Particularly in web forums.

  8. Yep- cars are designed to blow up on impact all the time. I buy my groceries at a store that puts aresenic in every fifth gallon of milk- it’s exciting!

  9. I agree with Lamar, like totally. The distinguished professor rants and rants without supplying the name of a single court decision that supports his thesis. The fact that Toyota knowingly manufactured a faulty product for years somehow proves that liabilty laws are too generous to the public. Go figure.

    1. Read your shampoo bottle sometime if you ever bother to bathe. Why does it say “rinse lather and repeat” because someone somewhere ate the stuff and sued. Our society is full of wasted resources on warnings and over engineered products to prevent harm in case of misuse. There is real cost to that.

      1. Is that true? My understanding from an ad class was that it was added as a way to increase product use.

        1. True. The key to increased sales was “Repeat”. It’s the same thing with the blue indicator strip on razors. The strip goes away before most people feel like their blade is uncomfortable dull.

      2. “Failure to warn” is an interesting subset of product liability. I have a hard time arguing against providing more information. Individuals run on information, even if the extreme cases sound stupid.

        1. I have a hard time arguing against providing more information.

          I have a hard time redistributing wealth because somebody did something patently stupid.

          1. All I’m saying is that Epstein’s world is one where corporations only get tagged for completely obvious screwups, the kind that rarely, if ever, actually occur. In NYC, I worked for judges who openly favored plaintiffs, and judges in Florida who are openly in favor of companies. Then there are juries and who knows what they hell they are thinking or doing. I’m not saying the system is perfect. But at some point, if your product hurts people, then you might bear some of the blame. If they were drunk and driving at 90mph, well that’s their fault, but you were still the one who designed the 90mph car. Does that mean the corporation will install restraints so that cars can’t go 90? I have yet to see it. Ultimately, I think we’ve done OK with the strict liability regime. I think we have quite a bit of choice. Some cases are absurd, but we have to look at the regime as a whole. Then we have to compare it to something that doesn’t exist. It isn’t easy.

        2. What if the information causes overload so that the consumer begins to ignore true risk? One can be overwarned.

          1. Polynikes: There’s some truth to that.

        3. One of my favorites comes from a package of lighters. I believe most lighters carry the same warning because of the butane in the package. It says: “Do not use near flame.” Brilliant.

  10. Modern product liability law is an expensive litigation game operated by and for the benefit of lawyers.

    We have a winner!

  11. ‘By the late-1960s they persuaded courts to adopt a “risk/utility” analysis that empowers a jury to decide whether “the foreseeable risks of harm could have been reduced or avoided by some alternative design that renders a product not reasonably safe.” . . . This broad standard allows *runaway juries* to conclude that every car on the road suffers from dozens of design defects.’ [emphasis added]

    What’s this about runawayy juries? It sounds like judges are telling juries that they need to wield broad regulatory powers by making sweeping decisions about how cars should be designed. That sort of instruction invites lots of second-guessing of car design.

    Modern dogma says that juries have to do exactly what judges tell them to do. If the judge tells them to basically become regulators and second-guess design decisions, then should we complain if juries do exactly as they are told?

    Unless we’re willing to advocate ‘nullification,’ then the proper remedy for these bad jury instructions is to change the instructions. Or, if the instructions reflect the law, then change the law.

  12. ‘Ultimately, I think we’ve done OK with the strict liability regime. I think we have quite a bit of choice. Some cases are absurd, but we have to look at the regime as a whole. Then we have to compare it to something that doesn’t exist. It isn’t easy.’

    Doesn’t exist? My state abolished strict products liability – but of course it still allows negligence suits against manufacturers. Does this lead to worthy plaintiffs losing their cases?

    The alternate system certainly ‘exists,’ like it or not.

  13. “Doesn’t exist? My state abolished strict products liability”

    Good for you! Has anybody in your state developed the cure for cancer yet? Chop chop! (In reality, I have been referring to the US market as a whole rather than the individual jurisdictions. Unless you are in California, auto makers don’t make separate cars for each state. Admittedly, it’s a bit sloppy on my part, but more like shorthand.)

  14. There is no such thing as a safe product. You can dig up a rock, wash it off, and sit it on the shelf with a price tag and you will have a dangerous product. There are countless ways that rock can be misused that can lead to injury or death. In our current environment, you are potentially liable for future damages for merely digging it up.

    1. Of course there is such a thing as a safe product. You keep your money and valuables locked up in it!

      1. ….and that’s why I didn’t become a comedian.

      2. …it took me a second, so I give you a “pretty good” 🙂

      3. I saw lots of cartoons when I was growing that showed safes being dropped on people. So safes are not safe.

        1. I’m not sure how the Acme Corporation lasted all those years.

  15. And then, there’s the 800 lb StrawMan In The Room: what’s actual technical issue with Toyotas? In other words what’s the real risk here?

    I hear lots of “ohmyfuckingGOD-the-world-is-ending-NOW” stuff about Toyotas. But the few numbers I’ve read say the risk of anything happening at all is pretty small. As in so small that you’d probably win the lottery before your Camry went rouge and ran you off the nearest cliff.

    Lawyers, OTOH, go rouge all the time.

    But I confess, I’ve had a few other things to do with my life lately than research the percent of Toyotas that have actually had a problem.

  16. You guys lost me at “my shamwow slap- chopped my nuts.” Wait. . . “my shamwow won’t soak up my liquid.” No, Vince the Shamwow Guy died in a flaming Pinto. At 90 mph. Said Pinto designed by Engineer Kinnath, ably represented by Attorney Bella Causa Lamar. But that would depend upon how Polynikes defines “Vince” “Nuts” and “Chopped.” op cit. If this is the “Car Guy Thread,” how come you-alls can spell? Well, back to Youtube. Search: Camry, foot, death (sudden).

    1. If this blog were a show, it would be “Shovin’ Buddies”.

  17. Toyota & Honda dropped the ball on handling the recalls , they should have came forward with a full disclosure. Instead of waiting for a huge media blitz and tons of public pressure. But Toyota & Honda are not alone , I never seen so many car companies having recalls all at the same time. I had no idea my car which is not even a Toyota or Honda, was affected until I searched on http://www.carpedalrecall.com and found I had a bad Anti Lock control unit on my 2008 Pontiac G8 , So be careful check daily, it seems more and more cars are being recalled .

  18. Hmmm… Since almost all recalled products are imported from third world countries, the importer should pay substantial fines and fees to offset the outsourced American jobs these inferior products cost U.S. citizens.

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