Proximate Cause, the Proposed Basic Principles Restatement, and Products Liability
Richard L. Cupp Jr.
Pepperdine University School of Law
November 11, 2008
South Carolina Law Review, Vol. 53, 2002
No subject separates torts scholars from practitioners more than the doctrine of proximate cause. This article discusses how to accomplish the delicate balance between the practitioners's need for proximate cause doctrine clarity, and the scholars' need to recognize the doctrine's subtleties and complexities. First, it discusses the proposed Basic Principles Restatement's formation of proximate cause, which Professor Cupp feels is more succinct, centralized, and clear in comparison to earlier versions, which discussed proximate cause over multiple scattered and overlapping sections. However, the problem with this newer explanation is that it uses different language than the courts typically use when they discuss proximate cause. An example of this is the new version's use of the terms "results-within-the-risk" (rather than "reasonable foreseeability") and "legal cause" (rather than "proximate cause"). The article then discusses how the proximate cause analysis is different in a product liability case than in other torts cases, and how the change in the Basic Principles Restatement's language from "reasonable foreseeability" to "results-within-the risk" can affect some products liability cases. Specifically, the Products Liability Restatement indicates that strict liability is theoretically available for design defects and warning defects, but that such liability only attaches to risks that are reasonably foreseeable. The article then offers a discussion of the burden of proving misuse in cases of contributory or comparative negligence.
Number of Pages in PDF File: 18
Keywords: proximate cause, products liability, tort, legal cause, results-within-the-risk, reasonable foreseeabilty, legal cause, strict liability, liability, design defect, warning defect, negligenceAccepted Paper Series
Date posted: November 12, 2008 ; Last revised: November 18, 2009
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