Proximate Cause, the Proposed Basic Principles Restatement, and Products Liability

18 Pages Posted: 12 Nov 2008 Last revised: 18 Nov 2009

See all articles by Richard L. Cupp

Richard L. Cupp

Pepperdine University - Rick J. Caruso School of Law

Date Written: November 11, 2008


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.

Keywords: proximate cause, products liability, tort, legal cause, results-within-the-risk, reasonable foreseeabilty, legal cause, strict liability, liability, design defect, warning defect, negligence

Suggested Citation

Cupp, R.L., Proximate Cause, the Proposed Basic Principles Restatement, and Products Liability (November 11, 2008). South Carolina Law Review, Vol. 53, 2002, Available at SSRN:

R.L. Cupp (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States
(310) 506-4658 (Phone)

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