Beyond Erin Brockovich and A Civil Action: Should Strict Products Liability Be the Next Frontier for Water Contamination Lawsuits?

Abstract:     
This article addresses both the practical and theoretical issues arising from groundwater contamination litigation. Professor Gash begins by discussing the scope of the groundwater contamination problem and the difficulties plaintiffs have had recovering from the purported polluters in contamination cases. Professor Gash next traces the public policy foundations of strict products liability from its roots in Greenman v. Yuba Power through the recent Third Restatement, and analyzes whether the strict products liability cause of action applies to the sellers of contaminated water. Professor Gash concludes that the delivery of water into someone’s home is a sale of a product and that water contamination qualifies as a defect, making distributors of contaminated water subject to strict liability. Professor Gash then looks at public policy considerations involved in the imposition of strict liability, including tracing how the courts and the Restatement have addressed policy concerns and evaluating economic considerations associated with quality control. From this analysis, Professor Gash concludes that courts should recognize a new affirmative defense relieving manufacturers of liability when the manufacturing defect at issue is not reasonably traceable to the level of quality control selected by the manufacturer. The facts of Erin Brockovich and A Civil Action are then analyzed in light of the proposed affirmative defense, revealing that liability should be imposed in one of the two cases, but not in the other. A series of graphs helps the reader conceptualize the analysis as it proceeds.

Number of Pages in PDF File: 76

Keywords: groundwater contamination, litigation, pollution, Erin Brockovih, A Civil Action, Greenman, v. Yuba Power, polluters, product liability, strict liability strict products liability, contaminated water, defect, Restatement Third, affirmative defense

JEL Classification: K13, K41

Accepted Paper Series