Chasing the Illusory Pot of Gold at the End of the Rainbow: Negligence and Strict Liability in Design Defect Litigation

21 Pages Posted: 8 Sep 2006  

Aaron Twerski

Brooklyn Law School

Abstract

Courts continue to draw hairline distinctions between cases sounding in negligence and strict liability. Where the underlying theory for recovery is based on some form of risk-utility balancing the distinctions are either meaningless or outright wrong. In a recent case the Illinois Supreme Court in seeking to differentiate negligence from strict liability was able to do so only by misstating the law of negligence. The Illinois decision is representative of a problem that pervades product liability cases in many jurisdictions. The author espouses a functional rather than doctrinal approach to the definition of design defect and argues that continuing to insist that doctrine difference exist will lead juries to needless cases of inconsistent verdicts.

Keywords: Design Defect, Negligence and Strict Liability, Inconsistent Verdict in Products Liability

Suggested Citation

Twerski, Aaron, Chasing the Illusory Pot of Gold at the End of the Rainbow: Negligence and Strict Liability in Design Defect Litigation. Marquette Law Review, November 2006; Hofstra Univ. Legal Studies Research Paper No. 06-25. Available at SSRN: https://ssrn.com/abstract=928457

Aaron D. Twerski (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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