Negligence Strict Liability

News & Analysis as of

Some Case-by-Case Comment K Mixed with Some Insufficient Pleading of Fraud

In Hawaii, from whence today’s case comes, tourists are encouraged to try poi, mashed up taro root, which looks like purple wallpaper paste and tastes like, well, purple wallpaper paste. The term is also used as a friendly...more

Sophisticated User Defense Does Not Extend to Salesman

Richard Moran III v. Foster Wheeler Energy Corporation - Court of Appeal, Second Appellate District (April 13, 2016) - In 2008, the California Supreme Court unanimously held that the “sophisticated user” defense...more

Comment K Case by Case – Falling Out of Favor?

When we examined Restatement (Second) of Torts §402A, comment k (1965), in our 2011 research post “Comment K, Some of the Way,” we remarked about how it said “a lot of things,” including: (1) that one can’t design away...more

Think Mink, part 2: Florida Federal Court Slams Door on Parallel Claims

Last November we blogged about "specialized" preemption issues in several cases, including Mink v. Smith & Nephew, Inc., 2015 WL 7356285 (S.D. Fla. Nov. 19, 1015). The plaintiff in Mink claimed physical injuries from a...more

Mentor Case Time Barred

In 2004, North Carolina resident Melanie Cole was implanted with Mentor’s OB Tape, which is a sling device that is used to treat urinary incontinence. Three weeks after the surgery, Ms. Cole visited her surgeon and...more

Tort Suit Seeks to Hold Drillers Responsible for Oklahoma Earthquakes

In what may be part of a wave of litigation blaming increased seismicity on oil and gas development activities, 12 residents of Oklahoma City and its suburbs filed suit against oil and gas drillers and operators of wastewater...more

Philly Court Applies Michigan Law to Dismiss Risperdal Cases

Delve into the crime stories of Elmore Leonard, whether in the form of the books, movies, or television shows, and you are likely to spend considerable time in Michigan and Florida. True, Justified was set in Kentucky. But...more

Can You Use Evidence of Repairs Made After the Fact?

Based on public policy considerations, some types of potentially relevant evidence can’t be used at trial. One example is subsequent remedial or precautionary measures taken after an accident or other event, which, if it had...more

Morello v. Kenco Toyota Lift: No Duty to Advise Of Optional Safety Devices

Just last week, the Eastern District of Pennsylvania dismissed plaintiff’s negligence and §402(B) strict liability claims on summary judgment in Morello v. Kenco Toyota Lift, et al. The court reserved dismissal of the...more

Heedless Heeding Presumptions – How New York Law Became a Morass

Ever since this blog started, we’ve made plain that we have no use for the so-called “heeding presumption.” This presumption posits that, because under Restatement §402A, comment j, a defendant providing an adequate warning...more

SDNY Sacks Treanda Failure to Warn Claim

Failure to warn cases remind us of sports talk radio and paleontology. Especially on Monday mornings in the Fall, Philly sports talk radio is a festival of woe and recrimination. The Iggles are terrible, their deficiencies...more

Products Liability – Raw Material Supplier – Consumer Expectations Test

David Johnson, et al. v. United States Steel Corporation - Court of Appeal, First District (September 1, 2015) - In a products liability case, a plaintiff may seek recovery on theories of both negligence and...more

Florida Defective Product Lawsuits: Who can be liable and how to prove it

Manufactures and sellers have a responsibility to put reasonably safe products in the stream of commerce. When someone is injured by a defective product, both the manufacturer and the seller of the product can be liable for...more

Lack of Proximate Cause for Failure to Warn Nets a Directed Verdict

A week ago, in a post-script to a post on Daubert decisions, we reported that the trial court in Hexum v. Eli Lilly & Co., No. 2:13-cv-02701-SVM-MAN, 2015 U.S. Dist. LEXIS 109737 (C.D. Cal. Aug. 18, 2015), had granted...more

California Dreaming: The Bite of Bauman, the Perfume of Preemption, the Stink of Stengel

This week the Drug and Device Law Son turns 20. It is apparently an age of discontent, of gripes and snipes. When we asked the DDLS what he wanted for his birthday, he said he wanted to move "back" to California. Something...more

MDL Court Agrees – Tincher Doesn’t Change Pennsylvania Drug/Device Law

Several months ago we responded with some disdain to recent plaintiff-side arguments we had seen claiming that the strict liability decision in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), somehow altered...more

Property Owners Denied Class Certification in Halliburton Contamination Suit

Earlier this month, a federal district court in Oklahoma denied class certification to a group of property owners living near a contaminated research facility owned by Halliburton Energy Services, Inc. in Duncan, Oklahoma,...more

Fracking: Not “Abnormally Dangerous” Says Middle District of PA

Civil liability for damages normally requires evidence of a defendant’s negligence as the cause of the property damage or injury involved....more

The New Product Liability Paradigm In Pennsylvania: The PA Supreme Court Declines To Adopt The Third Restatement, But Overrules...

The Pennsylvania Supreme Court this past week dramatically altered the landscape of product liability litigation in Pennsylvania. In Tincher v. Omega Flex, Inc., No. 17 MAP 2013 (Pa. November 19, 2014), the Court overruled...more

Pennsylvania Supreme Court Redefines Strict Liability Design Defect Claims

The court in Tincher recalibrates Pennsylvania strict liability law by declining to adopt the Restatement (Third) of Torts and by overruling Azzarello....more

Pennsylvania Supreme Court Declines To Adopt Restatement (Third) of Torts

In a long-awaited opinion, the Pennsylvania Supreme Court has recently declined to adopt the Restatement (Third) of Torts in product liability cases, ruling instead that the strict liability regime of the Restatement (Second)...more

Eleventh Circuit Recognizes Important Exception to the Eight Corners Rule

Florida courts generally adhere to the Eight Corners Rule when determining whether an insurer has a duty to defend its insured. Under this rule, the duty to defend determination is made by looking only at the terms within...more

Appellate Court Notes - Week ending March 24

SC18996 - Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C. This case arrived from a divided Appellate Court where some jurist opined that the plaintiff’s attorney malpractice claims sounded solely in tort,...more

Weekly Law Resume - The Sophisticated User Defense Does Not Automatically Apply to an Employee of a Sophisticated Employer

Anne Pfeifer v. John Crane, Inc. - Court of Appeal, Second Appellate District, Division Four (October 29, 2013) - JCI appealed from a judgment awarding plaintiffs William and Anne Pfeifer over $21 million dollars in...more

The Fuss Over Fracking: An Examination of the Insurance Issues Associated with Hydro-Fracking

Hydraulic fracturing, commonly referred to as “fracking,” is a drilling process used to extract underground oil or natural gas trapped in hard to reach shale rock formations deep in the earth. The process involves well...more

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