DUTY:
THE CONTINUING VITALITY OF
DEAN GREEN'S THEORY*
Frank J. Vandall
I. INTRODUCTION
The most challenging subject in teaching negligence is the concept
of scope of liability. Attorneys and the courts fail to understand the
task involved in deciding the question and are often confused by terms
such as proximate cause and foreseeability. There are two approaches
to the scope of liability question. The first is the rule approach.' It
assumes that the scope of liability problem can be solved with a rule;
and the search, therefore, is for the correct rule. The second approach,
duty analysis, developed during the 1920's by the late Dean Leon
Green of the University of Texas.' Dean Green's approach is extremely helpful because it forces the student to look beyond the rhetoric of
the opinion to discover what approach the court is in fact using to
decide whether an element of damages should be considered by the
jury. The purpose of this article is to suggest that Dean Green's duty
theory is helpful in promoting clear analysis in negligence cases and is
the key to understanding modem products liability cases.
The study of proximate cause begins by going through the traditional negligence formula, consisting of (1) duty, (2) breach of duty,
(3) cause in fact, (4) proximate cause, and (5) damages.3 Time is taken
to make clear to the students that the purpose of proximate cause is to
determine the scope of liability, and further, that it is strictly a policy
* This article is adapted from portions of the proximate cause chapter in a new torts casebook, FRANK J. VANDALL & ELLEN WERTHEIMER, TORTS, CASES AND MATERIALS (Michie,
1997).
** Professor of Law, Emory University. B.A., 1964, Washington and Jefferson College;
J.D., 1967, Vanderbilt University; LL.M., 1968, S.J.D., 1979, University of Wisconsin.
1.
See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 272-321
(5th ed. 1984).
2.
LEON GREEN, RATIONALE OF PROXIMATE CAUSE (1927); Leon Green, The Duty Problem
in Negligence Cases, 28 COLUM. L. REV. 1014 (1928); Leon Green, The Duly Problem in Negligence Cases 29 COLUM. L. REV. 255 (1929).
3. KEETON, supra note 1, at 164-65.
QLR
[Vol. 15:343
question and is not a question of cause in fact.4 It is helpful at this
point to compare cases involving cause in fact with those involving
policy choices.5 Cause in fact exists when the defendant's conduct had
something to do with the plaintiff's injury, as a matter of science.6 If
we find cause in fact and evidence of negligence, then we reach the
policy question: Does the defendant's duty extend to this particular
plaintiff for this particular injury?7 It is important to make clear the
more popular rules that are cited by the courts in reaching a determination of proximate cause: the defendant is liable for foreseeable injuries,8 the defendant is liable for the damages that are a direct result of
his conduct,9 the defendant is liable if there was a foreseeable small
risk of injury," the plaintiff must have been within the zone of danger," and there is no liability for remote 2 injuries. It is enlightening
to students to discover how the courts manipulate the proximate cause
rules to solve scope of liability problems.
Dean Green makes it clear that foreseeability has been used as a
"cure all." He suggests that the term foreseeability is overworked and
burdened with too much baggage. It is used as a "squid function."' 3
Another way of saying this is that the question of scope of liability is
too important to be resolved by one concept such as foreseeability, and
to use the term foreseeability is to mislead students, attorneys, and
judges in regard to what the courts are actually considering in determining whether or not an item of damage should be considered by the
jury.4
At this point it is helpful to remind students that under the rule
approach to proximate cause, foreseeability is used to answer almost
every question in the negligence formula. For example, foreseeability is
used to determine the scope of duty, 5 to determine whether there is a
4. Leon Green, Proximate Cause in Texas Negligence Law, 28 TEX. L. REV. 755 (1950).
5. A good example of cause in fact is Kramer v. Wilkins, 186 So. 625 (Miss. 1939). A
good example of policy is Ryan v. New York Cent. R.R., 35 N.Y. 210 (1866).
6. Leon Green, Proximate Cause in Texas Negligence Law, 28 TEx. L. REV. 471 (1950).
7. Green, supra note 4, at 755.
8. See In re Kinsman Transit Co., 338 F.2d 708, 724-26 (2d Cir. 1964); In re Kinsman
Transit Co., 388 F.2d 821, 824 (2d Cir. 1968).
9. In re Polemis & Furness, Withy & Co., [1921] 3 K.B. 560 (Eng. C.A.).
10. See Overseas Tankship (U.K.) Ltd. v. Miller S.S. Co., [1967] 1 App. Cas. 617, 644
(P.C.) [hereinafter Wagon Mound I1].
11. Palsgraf v. Long Island R.R., 162 N.E. 99, 100 (N.Y. 1928).
12. See Ryan v. N.Y. Cent. R.R., 35 N.Y. 210, 212-13 (N.Y. 1866).
13. Green, supra note 4, at 771-76.
14. Id.
15. Palsgraf,162 N.E. at 100.
19951
DUTrY
breach of duty,16 to determine proximate cause, 7 and finally to determine the scope of recoverable damages. 8 The only element of the
formula for which foreseeability is not used is cause in fact.
One of the most substantial contributions that Dean Green made to
legal education is to manifest that the concept of foreseeability should
be limited to the breach of duty question. The only place where foreseeability should appear is in the charge to the jury of whether the
defendant is negligent." The more radical thrust of Dean Green's theory, however, is to say that there is no such thing as proximate cause,
completely eliminating proximate cause from the negligence formula.2' In doing this, he limits the negligence formula to four elements:
duty, breach of duty, cause in fact, and damages.2
One reason there is so much confusion over the proximate cause
issue is because the key concept, foreseeability, is used in at least three
different ways. First, foreseeability is used to ask what the reasonable
man would have anticipated.22 Second, it is used as a policy question,
that is, what does society deem appropriate in this situation.23 This, of
course, was first made clear in Andrew's dissent in the famous
Palsgrafcase. 4 Finally, foreseeability is used as a squid function to
conceal the operative factors that the court is relying upon in deciding
whether this item of damage should go before the jury.'
The problem with such an overuse of foreseeability is that the
judge may get confused and make a bad decision.' More importantly,
the attorney may, in using the word foreseeability, fail to realize the
important policy factors that the judge considers in making a decision.
There is also the possibility that the term may mislead the jury into a
bad decision.
Intervening cause, the theory that a cause that comes later, and
from a different source than the defendant, might cut off the liability of
the defendant, has been a source of difficulty in negligence law.2 7 One
16. Polemis, [1921] 3 K.B. at 565-68.
17. Overseas Tankship (U.K.) Ltd. v. Morts Dock & Eng'g Co., [1961] 1 App. Cas. 388,
426 (P.C.) [hereinafter Wagon Mound 1].
18. Kinsman, 338 F.2d at 723-27; Kinsman, 388 F.2d at 824-25.
19. Green, supra note 4, at 761-64.
20. Id. at 764.
21. Id. at 776.
22. Wagon Mound!, [1961] 1 App. Cas. at 393.
23. Wagon Mound 11, [1967] 1 App. Cas. at 617.
24. Palsgraf,162 N.E. at 104 (Andrews, J., dissenting).
25. Green, supra note 4, at 758.
26. Id. at 756.
27. Leon Green, Proximate Cause in Texas Negligence Law, 28 TEx. L. REV. 621, 621
QLR
[Vol. 15:343
of Dean Green's most helpful insights has been to make clear that
intervening cause is merely a subclass of duty and that the real problem
in intervening cause is one of policy; that is, when will an intervening
cause cut off liability (when will one cause in fact cut off another).28
Intervening cause, then, is usually a scope of liability problem that
should be handled under the duty approach. The same can be said for
shifting responsibility,29 which is another form of the proximate cause
or scope of liability question. Shifting responsibility is merely another
way of asking: is it fair to hold this defendant liable when another
defendant is also negligent, or an act of God has had something to do
with causing the damage? Dean Green suggests that this should be
handled under the duty formula.3"
The judge usually determines duty.3 The task of the judge is to
determine the scope of liability and to decide what questions reach the
jury. The element of the negligence formula where the judge does this
evaluation is duty. The judge only gives the question of duty to the
jury when he or she feels it is appropriate for the jury to make the
decision or when the judge feels that reasonable persons could differ on
the question of duty.32 When the scope of duty is clear, it is the
judge's function to decide the question and take it from the jury.33 It
is, therefore, misleading for the court to say that proximate cause is a
question for the jury.34 It is not a question for the jury when the judge
feels it is inappropriate for the jury. This is made clear in two cases. In
Halvorson v. Birchfield Boiler,35 the defendant corporation had a
Christmas party where an employee became intoxicated on alcohol
furnished by the defendant. While driving home, the employee struck
and severely injured the plaintiff. The issue was "whether an employer
is liable to a third party who is injured by an employee who has become intoxicated at a company Christmas party."36 The court did not
hesitate to decide that question should not go to the jury. The judge felt
that the scope of duty was clear: the corporation should not be liable
(1950).
28.
29.
30.
31.
32.
33.
Id. at 625.
Id.
Id.
Green, supra note 4, at 773.
Id. at 776.
KEETON, supra note 1, at 320.
34. See KEETON, supra note 1, at 319-21.
35. 458 P.2d 897 (Wash. 1969).
36. Id.
1995]
DUTrY
for damage caused by an intoxicated employee."
The taking of cases from the jury when the judge thinks the duty
question is clear is also illustrated in negligent infliction of mental
distress cases. The courts often take the question of mental distress
from the jury because they feel mental distress cases impose a substantial administrative problem on the courts. If the jury received every
case involving negligent infliction of mental distress, there would be an
unmanageable flood of these types of actions in the'courts.38
Dean Green clarified the nature of the duty question as follows:
Does the defendant's duty extend to this specific person for this specific injury?39 He also made plain that the task of the judge is to decide
the scope of duty and that this is a policy question (not a cause in fact
question).' A fundamental precept with Green is that there are no
rules for deciding scope of liability, proximate cause, or duty. What
students should see after they have gone through the proximate cause
cases is that whatever rule they develop is not reliable. That is, the
student should become aware that in resolving these very difficult
questions of social policy, the judge reflects upon his or her education,
religious background, and experiences in society in deciding what he or
she thinks is just, fair, or appropriate. Therefore, shorthand rules such
as "foreseeable" or "direct" are not helpful in answering these fundamental policy questions. 4' For example, in Halvorson,42 the operative
factor was administrative. In that case, the court did not want to get
involved in defining the responsibility of a social gathering. It did not
want to examine questions such as how much liquor should be provided at a corporate party, to whom should it be provided, and when
should the courts get involved in private social functions. In short,
activities of this nature were thought to be outside the limits of responsibility. Today, of course, judicial conservatism is receding. For example, in the noteworthy case of Kelly v. Gwinnell,43 the New Jersey
Supreme Court held that a social host was liable to an individual injured by a guest who had been given at least thirteen alcoholic drinks.
One of the most important services that Dean Green has provided
for teachers of torts is the articulation of factors that the judge weighs
37.
38.
39.
40.
41.
42.
43.
Id. at 899 (quoting 30 AM. JUR. Intoxicating Liquors § 520 (1958)).
Green, supra note 4, at 755.
Id. at 774.
Id.
Id. at 775.
Halvorson, 458 P.2d at 900.
476 A.2d 1219, 1224 (N.J. 1984).
QLR
[Vol. 15:343
in answering the duty question. At this point I usually list on the blackboard the factors that Dean Green has identified as often determinative:
precedent, prevention, the economic impact of the decision, problems
in administration, the defendant's ability to carry the loss and justice.'
Dean Green makes it clear that this is not a complete list and that in
some cases other factors may be critical.45
Students often ask why should we use Dean Green's duty analysis
rather than proximate cause. The short answer is that it fosters clear
analysis. ' His approach makes clear the operative factors that the
court considers and that the attorney should argue in presenting his or
her case. His theory limits foreseeability to the negligence question
and, in this way, eliminates overworking the foreseeability concept.47
The test for negligence, under Green's duty approach, is whether
the defendant, as a reasonably prudent person, should under all the
circumstances have foreseen danger to the plaintiff or someone similarly situated.' The great benefit of this test is to shrink the role of foreseeability and to manifest that it should be limited to the jury's determination of whether or not the defendant was negligent.49 Students
should see that proximate cause is a very challenging question for the
courts and calls upon all the talents of the judge. The courts naturally
have a tendency to avoid the proximate cause question if at all possible
because it holds their decision-making up to public scrutiny.
Dean Green builds upon this tendency of the courts by suggesting
that there are three key questions that the court should ask in a negligence case. First, is there evidence that the defendant was the cause in
fact of the plaintiff's injury?5" Often the case can be dealt with at this
point by the judge finding that there is insufficient evidence of cause in
fact. Second, is there sufficient evidence of the defendant's negligence
to send the case to the jury?5 Once again, the judge may be able to
resolve the case by finding that there is no evidence of negligence or
insufficient evidence of negligence, and he will not have to reach the
thorny question of duty.52 Finally, if he or she finds there is evidence
44.
45.
46.
47.
48.
49.
50.
51.
52.
Green, 28 COLUM. L. REV. at 1034; Green, 29 COLUM. L. REV. at 255-56.
Green, 28 COLUM. L. REV. at 1034.
Green, supra note 27, at 643-44.
Green, supra note 4, at 761-62.
Id. at 763.
Id. at 764.
Green, supra note 6, at 475.
Id. at 476.
Id. at 478.
349
DUTY
of cause in fact and finds that there is evidence of negligence, then he
must ask the duty question. Does the defendant's3 duty extend to include this specific injury to this specific plaintiff?.1
The duty approach makes clear that the function of the court is to
control the jury. The judge exercises his control over the jury in large
part through the duty question.54 That is, the judge limits the scope of
the jury's decision by deciding what elements of damage will reach the
jury and he does this through duty. Dean Green makes it clear that not
everyone is entitled to a day in court and that a plaintiff is entitled to
his or her day in court only when the judge finds that it is socially
appropriate for the plaintiff's case to reach the jury."
II.
APPLYING
DUTY
TO THE CASES
At this point it will be helpful to take Dean Green's duty analysis
and apply it to several of the well-known proximate cause cases. My
purpose is to compare the proximate cause approach with the duty
approach by looking at actual cases to see whether Green's theory will
lead to a different result.
The Polemis case involves a lessee of a ship whose employee had
dropped a plank into the hold of the ship which caused a spark and
ignited the gasoline fumes in the hold.56 The result was a fire and the
loss of the entire ship. The plaintiff was the owner of the ship. Under
the duty approach, the key element in Polemis is prevention. It suggests
that the plaintiff should have won the case because the defendant could
have prevented the injury by hiring skilled workers who would not
have dropped the plank.
Negligence is a substantial problem in Polemis because the arbitrators found that the damage was not foreseeable and, therefore, there
was no negligence. 7 But this is contrary to reality because we know
that there were large amounts of gasoline stored in the ship and surely
everyone on the ship must have known of the high risk of fire. Since
fumes were in the ship, their presence was well-known, and there is
evidence of negligence on the part of the crew when they dropped a
plank into the fume filled hold.
53.
54.
55.
56.
57.
Id. at 477-80.
Green, supra note 4, at 756.
Id. at 761.
Polemis, 11921] 3 K.B. at 563.
See In re Polemis & Furness, Withy & Co., [1921] 3 K.B. 560 (Eng. C.A.).
350
QLR
[Vol. 15:343
Palsgrafis the best known case in torts." In that case, two men
carrying a shoe box-sized package wrapped in newspaper were rushing
to board a train. The conductor helped push one of the men onto the
train and in the process the package fell and exploded. The court indicates that the package was filled with fireworks. The plaintiff alleged
that the explosion caused the scales near her to topple onto her.
Palsgrafgave Judge Cardozo a platform for his now famous "foreseeable plaintiff' theory of proximate cause: "The risk reasonably to be
perceived defines the duty to be obeyed ... it is risk to another or to
others within the range of apprehension."59
Palsgrafis a difficult case, however, even when approached from
Dean Green's duty analysis. It's easy to find cause in fact in Palsgraf,
but negligence is a bit more challenging. For example, is there evidence of negligence in the fact that the conductor pushed the man onto
the train, or in the fact that the railroad failed to inspect packages? If
we stress the prevention aspect of the duty analysis, then we find that
such conduct on the part of the railroad is not cheap to prevent. Are we
going to require conductors to stop helping passengers board the trains,
or are we going to require that all passengers be searched before they
board? The problems raised in applying the prevention factor suggest
that the defendant should have won in Palsgraf.However, if it is conceded that one way to prevent the injury is to bolt the scales to the
platform, then prevention is rather cheap and, therefore, the plaintiff
should have won. If we look at the loss-shifting factor we see that
perhaps the plaintiff should have won because the railroad is better able
to absorb the loss. Also, if we consider the precedent that the railroads
have a high duty of care to passengers and Mrs. Palsgraf was, indeed, a
ticket holder at the time of her injury the plaintiff should have won.
Kinsman is a case with a fact pattern that reads like a torts examination question.' In the middle of winter, the defendant's large ship
broke loose and, because of the ice and fast moving Buffalo River
current, moved quickly down stream and slammed into another extremely large ship. The two ships careened down the river and crashed
into a drawbridge that was not raised in time, blocking the entire Buffalo River. This caused flooding up the river as far as the plaintiff's
property. In Kinsman, the owner of the ship failed to have a lookout on
board and the dock owner failed to keep the ship securely tied to the
58. See Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928).
59. Id. at 100.
60. See Kinsman, 338 F.2d at 708.
1995]
DUTY
dock. In addition, the City of Buffalo failed to have someone on duty
on the bridge at all times. Thus, in Kinsman, both cause in fact and
negligence are clearly present and do not raise a problem. The court
mentioned insurance in the Kinsman case and suggested that the defendant could best insure against the resulting loss. The court also mentioned that with regard to loss shifting, the City of Buffalo was better
able to carry the loss than the plaintiff. Under the duty analysis, both
the insurance factor and the loss shifting factor suggest that the plaintiff
correctly won the case.
Watson v. Kentucky & Indiana Bridge & Railroad" is a disturbing case. There, the railroad was negligent in maintaining one of its
tank cars and this resulted in a large volume of gasoline flowing down
the streets of a small town. Somehow the gasoline was ignited. There is
testimony that it was negligently lit, and there is also testimony that it
was intentionally ignited. The judge makes a point of saying that if the
lighting of the gasoline was negligent, then the railroad might be liable
because negligence is foreseeable.62 However, if the igniting of the
gasoline was intentional, then it is a criminal act and criminal acts are
not foreseeable. Therefore, the railroad should not be liable. The analysis in this case is flawed because both negligence and cause in fact are
clear. If we look at the element of prevention, the plaintiff should have
won. That is, if the railroad had taken care to prevent the train from
jumping the tracks, the fire would not have occurred. Secondly, if we
look at the loss-shifting element, the railroad is better able to bear the
loss than the plaintiff. However, if we look at precedent, as Dean
Green suggests, then the court was right in suggesting that an intervening, intentional criminal act of igniting the gasoline might well be
unforeseeable and should cut off liability.63 But since the gas igniting
from some source was clear, perhaps the railroad should be liable even
with a criminal intervening cause.
In Goar v. Village of Stephen,6' another important case, the company erected electric wires to supply electricity to the Village of Stephen. The village agreed that it would maintain and inspect the wires,
and inform the company if there were any problems. Instead, the village did nothing. As a result of the company's negligence in installing
the wires, the wires rubbed together and caused a large amount of
61.
62.
63.
64.
126 S.W. 146 (Ky. 1910).
Id. at 150.
Green, supra note 2, at 1034.
196 N.W. 171 (Minn. 1923).
QLR
[Vol. 15:343
electricity to move through the wires. The plaintiff received a shock
that caused injury. The question that the court raised is whether liability should shift from the company to the village." If we look at the
prevention factor to answer that question, we see that the village should
be liable because the village did nothing to fulfill its agreement to
inspect and prevent the injury. It should be noted, however, that the
company could have prevented the injury by installing the wires correctly. What we see is the court looking for some means to reach a just
result. The court found that the contract provided that the village had a
responsibility to inspect the wires.' The court held that this was fair
and, therefore, that the loss should shift from the company to the village.67
Goar is a good example of a factor that Dean Green does not
address. The factor is a contract: when two parties agree that if something goes wrong, here's who should be liable. This case only makes
sense when we assume that the village is not protected by sovereign
immunity. If the village was protected by sovereign immunity, it would
be extremely unfair to permit the company to shift the liability to the
village, knowing that the plaintiff would have no recovery.
The value of Dean Green's theory, crafted in the late 1920's, is
being discovered and applied by contemporary courts dealing with
products liability cases. For example, in a 1974 case involving a suit
against General Motors for a Chevrolet roof that collapsed, General
Motors carefully avoided arguing that the collapse was not foreseeable.68 They knew that when a car rolled over at 35 miles an hour, the
roof is likely to collapse. In short, foreseeability in many cases, particularly products liability cases, is not helpful in answering the scope of
liability question. Therefore, in products liability, the courts have been
forced to consider Green's operative factors. For example, the decision
will often turn on the economic impact of the decision,6 9 and whether
or not there is a particular administrative problem involved in the
70
case.
Scope of liability is the most challenging concept in negligence. A
65. Id. at 174.
66. Id.
67. Id. at 176.
68. Turner v. General Motors Corp., 514 S.W.2d 497, 503 (Tex. Civ. App. 1974, writ ref'd
n.r.e.).
69. See Wilson v. Piper Aircraft Corp., 577 P.2d 1322, 1325 (Or. 1978).
70. Schemel v. General Motors Corp., 384 F.2d 802, 805 (7th Cir. 1967) (setting the top
speed for an automobile is beyond the administrative scope of the court).
DUTY
19951
study of the proximate cause cases is misleading because the cases
suggest that the judges are bound by rules, such as foreseeability, 7'
directness,72 and remoteness.73 The value of Dean Green's theory is
the argument that foreseeability is overworked and the courts consider
more important factors such as insurance, loss-shifting, and administrative problems.74 The articles and books written by Dean Green point
the torts student toward the factors that the courts actually consider in
deciding scope of liability and, therefore, suggest lines of analysis and
argument that can be used by the attorney in preparing cases for trial
and for appeal. In this regard, the student who understands the duty
approach and uses it in analyzing cases will be better prepared than the
one who merely studies the alleged "rules" presented in the cases and
the hornbooks. Although developed by Dean Leon Green during the
1920's, the duty theory has continuing vitality in the 1990's.
III. THE
RESTATEMENT, THIRD, PRODUCTS LIABILITY
TENTATIVE DRAFT, SECTION 2(b) AND RECENT
CASES APPLYING GREEN'S THEORY
A. The Restatement, Third, Section 2(b)
The Tentative Draft of the Restatement, Third, Section 2(b) promises to keep alive the confusion that is inherent in relying on the concept of foreseeability. Section 2(b) provides:
[A] product is defective in design when the foreseeable risks of harm posed
by the product could have been reduced or avoided by the adoption of a
reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe."
The Reporters of the Tentative Draft fail to realize that foreseeability is a vague, undefined term that will lead to confusion and needless appeals to determine what is meant by foreseeable in a particular
71. Kinsman, 338 F.2d at 723; Kinsman, 388 F.2d at 824.
72. Polemis, 3 K.B. at 574.
73. See Ryan, 35 N.Y. at 217.
74. See Green, 28 COLUM. L. REV. at 1034; 29 COLUM. L. REV. at 255.
75. RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2(b) (Tentative Draft No. 2,
1995). For critiques of the Restatement (Third), see Frank J. Vandall, The Restatement (Third) of
Torts: Products Liability § 2(b): The Reasonable Alternative Design Requirement, 61 U. TENN.
L. REV. 1407 (1994); Frank J. Vandall, The Restatement (Third) of Torts, Products Liability, §
2(b): Design Defect, 68 TEMPLE L. REV. 167 (1995).
QLR
[Vol. 15:343
case. This is especially troublesome because the trend in the products
liability cases has been to weigh operative factors, such as those presented by Dean Green, in deciding whether a product is defective.
B. Recent Cases Applying Dean Green's Theory
Dean John Wade, a contemporary of Dean Green, first expressed
the factors in a now famous law review article.76 Wade said that the
following factors should be weighed in deciding whether a product is
defective:
(1) The usefulness and desirability of the product-its utility to the
user and to the public as a whole.
(2) The safety aspects of the product-the likelihood that it will cause
injury, and the probable seriousness of the injury.
(3) The availability of a substitute product which would meet the same
need and not be as unsafe.
(4) The manufacturer's ability to eliminate the unsafe character of the
product without impairing its usefulness or making it too expensive to maintain its utility.
(5) The user's ability to avoid danger by the exercise of care in the
use of the product.
(6) The user's anticipated awareness of the dangers inherent in the
product and their avoidability, because of general public knowledge of the
obvious condition of the product, or of the existence of suitable warnings or
instructions.
(7) The feasibility, on the part of the manufacturer, of spreading the
loss by setting the price of the product or carrying liability insurance."
The factors approach was carried forward in the 1978 case of
Barker v. Lull Engineering Co., Inc.7' The California Supreme Court
provided the plaintiff with two alternative tests for proving defect. A
product is defective in design:
either (1) if the product has failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable
manner; or (2) if, in light of the relevant factors discussed below, the benefits
of the challenged design do not outweigh the risk of danger inherent in such
design.79
76. John W. Wade, On the Nature of Strict Liability for Products, 44 Miss. LJ. 825, 837-38
(1973), quoted in Roach v. Kononen, 525 P.2d 125, 128 (Or. 1974).
77. Id.
78. 573 P.2d 443, 454 (Cal. 1978).
79. Id. at 452.
19951
DUTY
In applying the risk-benefit standard,
a jury may consider, among other relevant factors, the gravity of the danger
posed by the challenged design, the likelihood that such danger would occur,
the mechanical feasibility of a safer alternative design, the financial cost of
an improved design, and the adverse consequences to the product and to the
consumer that would result from an alternative design.'
A very recent case, Shanks v. Upjohn Co.,"1 furthers Green's approach by suggesting that the design defect of a prescription drug may
be evaluated by weighing various factors:
We believe these [Barker v. Lull Engineering Co.] factors, with some modification and additions, should be considered in making the same determination
in cases involving prescription drugs. Rephrasing these factors in language
more appropriate to prescription drug products, the fact finder should consider the seriousness of the side effects or reactions posed by the drug, the likelihood that such side effects or reactions would occur, the feasibility of an
alternative design which would eliminate or reduce the side effects or reactions without affecting the efficacy of the drug, and the harm to the consumer in terms of reduced efficacy and any new side effects or reactions that
would result from an alternative design. In evaluating the benefits, the fact
finder would be permitted to consider the seriousness of the condition for
which the drug is indicated.82
The factors presented by Dean Green were apparently adopted by
Dean Wade and transformed into law by the California Supreme Court
in Barker. This decision was, in turn, applied by the Alaska Supreme
Court in Shanks. The concept of operative factors developed by Dean
Leon Green, in the late 1920's as an element of duty, has changed and
expanded over the last 65 years. Today it is the key to modern products liability law.
80. Id. at 455.
81. 835 P.2d 1189 (Alaska 1992).
82. Id. at 1196-97.