Assumption of Risk and Product Liability

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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3 Responses

  1. A.J. Sutter says:

    Interesting, but the design defect seems to be a weaker link in the analogy, in a couple of respects. First, whose expectations are you talking about? Being manufactured as the designer intended isn’t the same as “working perfectly well”. A product might be manufactured according to the designed spec, but its performance not be what the purchaser was entitled to expect. Second, assumption of risk about, say, boxing doesn’t involve imperfect/asymmetrical information, whereas a design defect case often does. (Maybe both these points boil down to the same thing.)

  2. The parallels are far more profound. Duty of care, standard of care and foreseeable risk are, first and foremost, a state of mind. As a 40+ year quality control engineer who has worked with over 600 companies, I have observed that the corporate cultures of most manufacturing and service companies regarding potential liability fall into three categories: Naivety, abdication and acceptable kill rate. Most business executives are unaware of their potential for risk because they are emotionally involved in the products or services and do not see the growth of the tumor. Many more abdicate their duty of care in the heat of the competitive battles. A few actually build an acceptable kill rate into their product offerings.
    Overcoming personal and corporate abandonment of accountability must be addressed before we can have meaningful dialogue about assumption of risk.

  3. A.J. Sutter says:

    No doubt Tom is right about the typology of corporate attitudes, though in a way it seems orthogonal to — or a Möbius twist of — Gerard’s analogy.

    In Gerard’s usage, “assumption of risk” is a term of art referring to purposeful, reckless or negligent actions by the injured plaintiff, and the product liability analogy is to show how plaintiff might win his case anyway, including in situations not involving product liability per se.

    OTOH Tom’s typology refers to purposeful (“acceptable kill rate”), reckless (abdication) or negligent (naive) actions by the defendant that lead to the plaintiff’s win in a product liability case. In a non-technical usage of the term, they’re corporate behaviors that amount to a company’s “assuming the risk” of getting nailed. (Is this a fair summary, Tom?)

    I think Tom’s analogy is easy to understand in a practical way; Gerard’s more technical one is still kind of opaque to me.