Liability Decisions Research Articles

The Expectations of Consumers

In 1997, the American Law Institute promulgated the Restatement (Third) of Torts: Products Liability, an ambitious and important project that decisively rejected the consumer expectations doctrine in favor of a risk-utility test for product design defect claims. In the few years following promulgation of the Third Restatement, however, several courts have issued opinions expressing strong judicial allegiance to the consumer expectations doctrine. Indeed, at times they have appeared deeply suspicious of the ALI Restatement project and its recommendation to abandon consumer expectations as an independent test for product design defectiveness. This article examines the disjunction between rhetoric and reality in post-Third Restatement products liability decisions. It aims to demonstrate, first, that the doctrinal framework established by the Third Restatement is in fact an accurate representation of design defectiveness litigation despite the apparent persistence of the consumer expectations test. Second, this article seeks to explore whether scholars nevertheless can and should articulate a more significant, conceptually independent role for the consumer expectations test, given that several courts appear determined to retain the test as part of their products liability jurisprudence. Toward that end, this article explores several possible substantive foundations that might be laid for the consumer expectations test. Initially, it locates several points along the tradeoff spectrum between descriptive attractiveness and theoretical tractability, none of which provide a wholly satisfactory response to the challenge of giving content to the consumer expectations doctrine. More promising findings, however, emerge from cognitive and social psychology, behavioral economics, and other social science investigations of human behavior and decision-making. In particular, researchers from those fields have uncovered a wealth of knowledge in recent years concerning the manner in which individuals perceive and process information regarding health and safety dangers. As it turns out, lay individuals frequently comprehend such risks in ways that depart systematically from the approaches that characterize expert decision-making. Although such departures sometimes result from undesirable factual or cognitive errors on the part of individuals, a substantial remaining core of lay risk perception cannot easily be dismissed as irrational or otherwise lacking foundation. This article therefore argues that the consumer expectations test should be redirected toward these important cognitive and behavioral phenomena that are not as readily subsumed within the more analytically rigid risk-utility test. In this manner, the doctrine that refuses to die may yet find a purpose, nearly forty years after its accidental birth.

Compelled mental health examinations, liability decisions, and damage awards in sexual harrassment cases: Issues for jury research.

Compelled mental health examinations, liability decisions, and damage awards in sexual harrassment cases: Issues for jury research.

Compelled mental health examinations, liability decisions, and damage awards in sexual harrassment cases: Issues for jury research.

Compelled mental health examinations, liability decisions, and damage awards in sexual harrassment cases: Issues for jury research.

Board of the county commissioners of Bryan County, Oklahoma v. Jill Brown: Municipal liability and police hiring decisions

Civil liability is a concern of all police agencies. One majority theory of recovery is based on the federal statute 42 USC §1983. The police hiring decisions have also come to the attention of police executives as a potential source of liability. The case of Bryan County Commissioners v. Brown represents an important precedent concerning both of these issues. This article discusses the case opinion, its ramifications for municipal liability based on police hiring decisions, as well as some of the potential implications of the ruling.

The consolidation of plaintiffs: The effects of number of plaintiffs on jurors' liability decisions, damage awards, and cognitive processing of evidence.

The consolidation of plaintiffs: The effects of number of plaintiffs on jurors' liability decisions, damage awards, and cognitive processing of evidence.

The effects of injury severity on jury negligence decisions.

According to the laws of negligence, jurors' liability decisions are to be influenced by the defendant's conduct, but not by the severity of the plaintiffs injuries. We conducted a jury simulation study to assess whether jurors reason in this manner. We manipulated the conduct of the defendant (reasonable, careless) and the severity of injuries to the plaintiff (mild, severe) in a simulated automobile negligence case. Jurors completed predeliberation questionnaires, deliberated to a verdict, and answered postdeliberation questionnaires. The defendant's conduct had a strong impact on liability judgments, but evidence related to injury severity also had an effect, albeit smaller. We analyze these findings in the context of various cognitive and motivational theories. In a civil negligence case, testimony relevant to the question of liability is typically presented in combination with testimony related to damages and is heard by one jury in one proceeding. Jurors are expected to make a decision about liability only on the basis of evidence concerning the litigants' actions and an independent decision about damages only on the basis of evidence concerning the outcome (i.e., the plaintiff's injuries). This study asks whether jurors can compartmentalize their use of the evidence in this way.

Attorney Expertise, Litigant Success, and Judicial Decisionmaking in the U.S. Courts of Appeals

In the U.S. legal system, litigants frequently retain counsel to represent their interests in civil cases, particularly when the stakes are high. Scholarly work and anecdotal evidence suggest that variation in the quality of advocacy has the potential to affect litigant success. We examine the relationship between attorney characteristics, case outcomes, and judicial voting in products liability decisions of the U.S. Courts of Appeals. Our analysis found some differences in the levels of experience and specialization of counsel representing defendants and plaintiffs and that counsel expertise was, at times, related to litigant success. In a multivariate model of decisionmaking, judges were less likely to support the position of plaintiffs when they were represented by counsel appearing for the first time before the circuit. When defendants were represented by attorneys who did not specialize in relevant areas of the law, judges were more likely to decide in favor of the plaintiff. These findings suggest that those attorneys who do not meet a minimum threshold of expertise will be less likely to find judicial support for their client than other attorneys. Such attorneys may be less successful as a result of their lack of familiarity with the law and appellate process or because they make poor choices regarding the likelihood of success on appeal.

Tort Liability: A Minefield for Managed Care?

The restructuring of health insurance contracts and health care delivery systems under managed care is the result of competitive attempts to reduce the inefficiencies that developed in medical markets under traditional indemnity insurance. Liability rules that continue to apply norms of customary care threaten to undermine these potential efficiency gains. Liability rules under managed care should treat claims for denial of coverage as contractual disputes, to be brought against health plans as residual claimants. Where contracts are ambiguous, appropriate coverage should be determined using a cost‐benefit criterion based on beneficiaries' willingness‐to‐pay. Liability claims for negligent care should be permitted only against providers, not against health plans, except where the plan voluntarily assumes liability by contract. Extending liability for negligent care to health plans is likely to distort liability decisions and constrain the competitive evolution of delivery systems. These principles should apply equally to all plans, regardless of their status under the Employer Retirement Income Security Act.

Recent Developments in the Indiana Law of Product Liability

Although the Indiana courts issued few product liability decisions during this survey period (October 1996 to October 1997), the courts clarified the definition of a user or consumer, established further guidelines for the proof of causation and product identification, addressed the issue of disclaimers in the context of strict product liability, and considered a number of important defenses to product liability claims.

Factors Affecting the Use of Naked Statistical Evidence of Liability

Research has shown that people are reluctant to make pro-plaintiff liability decisions when the plaintiff's evidence is based on naked statistical evidence alone. The current research demonstrated in a Canadian sample that neither group discussion about the case nor extended decision time affected this tendency. However, when the objective probability that the defendant caused the relevant injury was increased to 99.9%, participants did tend to make affirmative liability decisions.

The term structure of interest rates and the asset and liability decisions of a financial intermediary

Interest rate risk management has become an important topic for managing financial institutions. Much of the attention devoted to the topic has focused on asset and liability choices without regard to their impact on the value of the equity of the financial institution. In this paper, a two-period equity valuation model is employed to investigate the optimal asset and liability decisions. The asset and liability decicions are shown to be a function of the slope of the yield curve, the existence of a term premium, and whether the actions of the institutions could result in a penalty for violation of a minimum capital-to-asset restriction.

Public Administrative Liability for Constitutional Torts, the Rehnquist Court, and Public Administration

Under the Burger Supreme Court (1969-1986) public administrative liability for violation of individuals' constitutional rights increased dramatically. In consequence, public administrators were well advised to develop knowledge of the constitutional law pertaining to their jobs and to incorporate constitutional values and requirements into their official actions. An analysis of public-sector liability decisions by the Rehnquist Court from 1986 through 1990 indicates that it has taken an incremental approach to dealing with the issues posed and has not staked out a markedly new direction or rollback to the pre-Burger years. In particular, this article analyzes Rehnquist Court liability decisions dealing with state action; coverage, respondeat superior, absolute immunity, and several process issues.

Bank Financing and Investment Decisions with Asymmetric Information about Loan Quality

Banks know more about the quality of their assets than do outside investors. This informational asymmetry can distort investment decisions if the bank must raise funds from uninformed outsiders. We model the effect of asymmetric information about loan quality on the asset and liability decisions of banks and the market valuation of bank liabilities. The existence of a precautionary demand for riskless securities against future liquidity needs depends on both the regulatory environment and the informational structure. If banks are ex ante identical, they prefer issuing risky debt to fund a withdrawal to holding riskless securities ex ante. If banks have partial knowledge of loan quality, however, high-quality banks may hold riskless securities to signal their quality, enabling them to issue risky debt at a lower interest rate. We present new empirical evidence that banks with higher asset quality do in fact hold more cash and securities.

Naked statistical evidence of liability: Is subjective probability enough?

Five studies tested the idea that people are reluctant to make proplaintiff liability decisions when the plaintiffs evidence is based on naked statistical evidence alone. Students (n = 740) and experienced trial judges (M = 111) averaged fewer than 10% affirmative decisions of liability when a case was based on naked statistical evidence but averaged over 65% affirmative decisions based on other forms of evidence even though the mathematical and subjective probabilities were the same for both types of evidence. Numerous hypotheses, including causal relevance, linkage to the specific case, and fairness to the defendant proved inadequate to explain the data. For evidence to affect decisions, the evidence must do more than affect people's perceptions about the probabilities associated with the ultimate fact; people seem to require that suppositions regarding the ultimate fact affect their perceptions of the truth or falsity of the evidence.

Four Tests for Liability in Torts

Four Tests for Liability in Torts

Analysis of personal liability decisions

Analysis of personal liability decisions

Recent Trends in Liability Decisions

Recent Trends in Liability Decisions