New Directions in Liability Law

By Walter Olson | Go to book overview

Knowledge of the Law Is No Excuse

PETER HUBER

In "The Objection to Being Stepped On," Robert Frost recounts how he accidentally "stepped on the toe of an unemployed hoe." The implement instantly "rose in offense" and struck Frost a blow "in the seat of [his] sense." The Bible had foretold the day when weapons would be turned into tools. 'And what do we see? / The first tool I step on / Turns into a weap-on."

There is a great insight here. The line between tools and weapons is exceedingly fine. Knives cut, irons scorch, dynamite explodes, poison kills. In the wrong hands, or under the wrong foot, the most innocuous domestic object quickly becomes an instrument of assault and battery.

Until the 1950s, the law on these matters was fairly simple. Whenever possible the old tort law left it up to the consumer to distinguish between weapons and tools in his own private universe. If someone wanted to buy a fast horse, lightweight canoe, sharp knife, or strong medicine, that was his business and his risk, or, more precisely, it was a risk that he and his seller could allocate between themselves as they chose.

The new tort jurisprudence that developed in the 1960s was quite different. Tort law advanced; contract principles receded. A new tort system gradually stepped in to preempt and rewrite a vast number of allocations of risk and responsibility that had once been decided by contract. The new system was much busier than the old. And having made product "defects" the center of its attention, it had a much more technocratic function.

How does one go about locating a defect in a complex product? "Manufacturing defects" are often easy to find. The jury compares the product as it reached the plaintiff with hundreds of others that came off the same assembly line. In effect, the mass manufacturer establishes his own standard by which any one of his own products can be gauged. Manufacturing-defect cases are easy. They are also comparatively rare.

Far more common today, and also far more difficult, are cases in which the product is said to be defective in design. The search for design defects often requires a jury to compare real with hypothetical products. What is a jury to do,

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