The Rhetoric of Strict Products Liability Versus Negligence: An Empirical Analysis

88 Pages Posted: 3 Jul 2010 Last revised: 23 Oct 2013

See all articles by Richard L. Cupp

Richard L. Cupp

Pepperdine University - Rick J. Caruso School of Law

Danielle Polage

Pepperdine University - Seaver College

Date Written: 2002

Abstract

In defective design and warning cases, courts and commentators increasingly are questioning the substantive distinction between negligence and strict liability causes of action. In 1998, the Restatement (Third) of Torts: Products Liability adopted a risk/utility analysis for defective design and warning claims that reflects a strong trend among jurisdictions in two ways. First, it advocated using the risk/utility test regardless of whether plaintiffs label their claims as negligence or strict liability (or, for that matter, implied warranty of merchantability). Second, the Restatement’s risk/utility analysis draws from principles of reasonableness, making strict liability essentially subject to a negligence analysis. In light of courts’ trend toward risk/utility and the Restatement’s position, commentators increasingly have wondered whether a plaintiff’s choice between negligence and strict liability in design and warning claims largely amounts to a rhetorical preference. In this Article, Professors Richard L. Cupp, Jr. and Danielle Polage present an empirical study of mock jurors that tests whether employing negligence versus strict liability language influences jury decisions when a substantively identical risk/utility standard is used. The authors found support for the perhaps counterintuitive argument that negligence language may favor plaintiffs by drawing on emotionally “hot” notions of fairness and fault, as opposed to the “cold” technical concepts of strict liability. The study found that jurors hearing the case under negligence language were more likely to find the defendant liable, and that they awarded, on average, almost twice the amount of damages compared to their strict liability counterparts. Indeed, although several findings showed advantages to using negligence language or disadvantages to using strict liability language, the study found no obvious rhetorical advantages to using strict liability language. The study thus presents a powerful challenge to the notion that strict liability is generally a pro-plaintiff doctrine under courts’ increasingly dominant approaches to design and warning cases.

Keywords: product liability, negligence, empirical, defective design, failure to warn, tort, risk/utility analysis, implied warranty of merchantability, reasonableness, plaintiff, defendant, trial strategy

Suggested Citation

Cupp, R.L. and Polage, Danielle, The Rhetoric of Strict Products Liability Versus Negligence: An Empirical Analysis (2002). New York University Law Review, Vol. 77, 2002, Available at SSRN: https://ssrn.com/abstract=1633625

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)

Danielle Polage

Pepperdine University - Seaver College

Malibu, CA 90263
United States

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