Gale Encyclopedia Of American Law 3Rd Edition Volume 8 P16 pptx

the early release from prison. Probation is reserved for persons convicted of less serious offenses; parole is given to persons convicted of serious offenses. The concept of probation in the CRIMINAL LAW was inspired in the mid-nineteenth century by JOHN AUGUSTUS, a resident of Boston. Augustus encountered a ma n about to be sentenced in a Boston court and believed him to be capable of reform. Augustus posted bail for the man and succeeded in getting his sentence reduced. From 1841 to 1859 Massa- chusetts judges released approximately 2000 offenders into Augustus’s custody instead of ordering incarceration. In 1878 Massachusetts enacted the first probation statute, and Boston hired its first probation officer. In 1880 the Massachusetts legislature approved the first statewide hiring of probation officers. By 1925 all states had laws governing probation for juveniles, and by 1939 approximately 39 states were maintaining laws on probation for adults. By 1967 adult proba- tion was allowed by statute in all states. Probation statutes generally identify the crimes available for a sentence of probation, or, conversely, they identify crimes for which probation may not be ordered. In Alaska, for example, a court may not order probation if the person has been convicted of sexual assault or if the person’s conviction is his second assault or ROBBERY offense within the previous ten years (Alaska Stat. § 12.55.085 [1965]). Statutes may also identify conditions of probation. These are actions that a probationer must do or refrain from doing during probation. Though conditions may be spelled out in statutes, a sentencing judge retains wide discre- tion to fashion conditions according to the best interests of both the public and the defendant. In most states a probationer must not possess a firearm, commit another offense, or possess illegal drugs during the probation period. Probationers must also report regularly to a probation officer. A judge may place additional conditions on a probationer. For example, if a defendant pleads guilty to assa ult, the court may order him to stay a specified distance away from the victim of the assault. In a conviction for a small amount of marijuana a judge may order the defendant to complete treatment for drug use. If a probationer violates any condition of probation, the court may order additional conditions or impose a prison sentence that does not exceed the maximum term of impris- onment that could have been imposed for the crime. Judges in state court generally have wide discretion in sentencing. In determining whether to sentence a defendant to probation, the court may consider a variety of factors, including the nature and circumstances of the offense and the defendant’s criminal history. Probation became a sentencing option for federal judges with the 1925 passage of the Federal Probation Act (18 U.S.C.A. § 3651). This act authorized federal courts to suspend imposition of a sentence, or the execution of a sentence, in favor of probation. A defendant could be placed on up to five years’ probation “upon such terms and conditions as the court deemed best” when the court was satisfied that “the ends of justice and the best interest of the public as well as the defendant [would] be served thereby.” Probation as a criminal sente nce was the product of a reform movement in the criminal justice system in the early twentieth century. Part of this movement was devoted to ABOLITION of determinate sentencing or the legislative impo- sition of specific sentences for specific crimes. The reform movement fought for indeterminate sentencing, a method that left sentencing to the discretion of the judge and allowed the judge to fashion a sentence according to the rehabilitative needs of the criminal defendant. Congress reversed indeterminate sentencing in federal court with the Sentencing Reform Act of 1984 (18 U.S.C.A. §§ 3551–3556). The act replaced the Federal Probation Act and estab- lished sentencing guidelines for federal judges, allowing a judge to order probation only if the offense calls for a term of imprisonment of six months or less. The act lists offenses for which revocation of probation and imposition of imprisonment are mandatory. The Sentencing Act also changed the role of federal probation officers in the federal criminal justice system. Under the act, probation officers must gather and present evidence on facts relevant to the sentencing guidelines. This is a shift in the focus of probation officers’ work. Probation officers once worked to ensure that the sentence fit the individual offender, but subsequently they endeavored to ensure that the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 138 PROBATION defendant’s sentence fits the offenses charged. In other words, the probation officer became less like a social worker intent on the rehabili- tation of the probationer and more like an informant for the court against the probationer. Revocation of probation in federal court in conjunction with the federal sentencing guide- lines has led to confusion over the application of probation. In United States v. Granderson, 511 U.S. 39, 114 S. Ct. 1259, 127 L. Ed. 2d 611 (1994), Ralph Stuart Granderson Jr. was con- victed of destruction of mail and sentenced to five years’ probation and a fine. While on probation, Granderson tested positive for co- caine. Under 18 U.S.C.A. § 3565(a) (1984), the court was required to revoke Gran derson’s probation “and sentence [him] to not less than one-third of the original sentence.” At the revocation hearing the government argued that this requirement meant a term of imprisonment not less than one-third the probationary period originally ordered by the court. The court agreed and resentenced Grand- erson to 60 months in prison. Under the federal sentencing guidelines, Granderson could have been initially sentenced to a term of imprison- ment between zero and six months. Granderson appealed, arguing that “original sentence” did not mean a term of imprisonment equal to the length of the probationary sentence imposed but instead referred to the prison sentence that the judge initially could have ordered. The U.S. Court of Appeals for the Eleventh Circuit agreed and vacated Grand- erson’s sentence and ordered his release from prison. According to the court of appeals, it was “legal alchemy” to convert a long-term sentence of conditional liberty into an equally long term of imprisonment (United States v. Granderson, 969 F.2d 980 [11th Cir. 1992]). The federal government appealed to the U.S. Supreme Court, which affirmed the ruling. FURTHER READINGS Abadinsky, Howard. 2008. Probation and Parole: Theory and Practice. 10th ed. Upper Saddle River, N.J.: Prentice Hall. Bieluch, Brian G. 2002. “Probation.” Georgetown Law Journal 90. Bunzel, Sharon M. 1995. “The Probation Officer and the Federal Sentencing Guidelines: Strange Philosophical Bedfellows.” Yale Law Journal 104. Morris, Norval, and Michael H. Tonry. 1990. Between Prison and Probation: Intermediate Punishment in a Rational Sentencing System. New York: Oxford Univ. Press. Petersilia, Joan. 2002. Reforming Probation and Parole in the 21st Century. Lanham, Md.: American Correctional Association Rosenberg, Nancy Taylor. 1995. First Offense. New York: Signet. Smith, Michael George. 1995. “The Propriety and Useful- ness of Geographical Restrictions Imposed as Condi- tions of Probation.” Baylor Law Review 47. Taxman, Faye S. 2002. “Supervision—Exploring the Dimen- sions of Effectiveness.” Federal Probation 66. CROSS REFERENCES Parole; Presentence Investigation. PROBATIONER A convict who is released from prison provided he maintains good behavior. One who is on PROBA- TION whereby she is given some freedom to reenter society subject to the condition that for a specified period the individual conduct herself in a manner approved by a special officer to whom the probationer must report. PROBATIVE Having the effect of proof, tending to prove, or actually proving. When a legal controversy goes to tri al, the parties seek to prove their cases by the introduction of evidence. All courts are governed by rules of evidence that describe what types of evidence are admissible. One key element for the admission of evidence is whether it proves or helps to prove a fact or issue. If so, the evidence is deemed probative . Probative evidence estab- lishes or contributes to proof. Probative facts are data that have the effect of proving an issue or other information. Probative facts establish the existence of other facts. They are matters of evidence that make the existence of something more probable or less probable than it would be without them. They are admissible as evidence and aid the court in the final resolution of a disputed issue. For example, in the case of a motor vehicle accident, a witness’s testimony that she saw one automobile enter the intersection on a red light is a probative fact about whether the driver was at fault. Evidence has probative value if it tends to prove an issue. However, probative value may refer to whether the evidence is admissible. For example, Federal Rule of Evidence 403 states that relevant evidence, which tends to prove or disprove an alleged fact, may be excluded if its probative value is substantially outweighed by the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PROBATIVE 139 danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considera- tions of undue delay, waste of time, or needless presentation of CUMULATIVE EVIDENCE. A trial court must use a balancing test to make this determination, but rules of evidence generally require that relevant evidence with probative value be excluded only if it is substantially outweighed by one of the dangers described in the rule. PROCEDURAL LAW The body of law that prescribes formal steps to be taken in enforcing legal rights. Legal rights themselves are created and defined by SUBSTANTIVE LAW. Different rules generally govern CIVIL PROCEDURE and CRIMINAL PROCEDURE , or the procedure followed in trials and in appeals. Federal Rules of Civil Proced ure regulate actions in federal courts. Procedural law is made up of state or federal statutes, rules promulgated by individual courts, and standards established by CONSTITUTIONAL LAW, particularly provisions ensuring the DUE PROCESS OF LAW. Procedural law is often called adjective law by legal writers. CROSS REFERENCE Civil Procedure. PROCEDURE The methods by which legal rights are enforced; the specific machinery for carrying on a lawsuit, including process, the pleadings, RULES OF EVIDENCE, and rules of CIVIL PROCEDURE or CRIMINAL PROCEDURE. The form, manner, and order of steps taken in conducting a lawsuit are all regulated by procedural law, which regulates how the law will be administered. SUBSTANTIVE LAW creates and defines rights that exist under the law. CROSS REFERENCE Civil Procedure. PROCEEDING A lawsuit; a hearing; all or some part of a cause of action heard and determined by a court, an ADMINISTRATIVE AGENCY, or other judicial authority. Any legal step or action taken at the direction of, or by the authority of, a court or agency; any measures necessary to prosecute or defend an action. The word proceeding may be used for all actions, or it may be used for something other than the usual type of lawsuit. For example, a special proceeding may be a particular procedure for handling a certain type of dispute. Special proceedings may be commenced by a petition or motion even when no full-fledged lawsuit is pending. They usually are confined to disputes that were not recognized under the COMMON LAW or in EQUITY. For example, a proceeding to challenge decisions made by administrative agencies may be a special proceeding. A summary proceeding is governed by accelerated methods that produce a quick decision. This is done by elimination of a jury, a presentment, or INDICTMENT, or other elements that are allowed in regular proceedings. SUMMARY PROCEEDINGS are available only for certain types of cases, such as small claims, or in certain courts, such as a concili ation or SMALL CLAIMS COURT. The term “proceeding” can also refer to one part of a larger legal action. For example, courts will frequently order a hearing to be held on disputes that arise before trial, during trial, after trial, and on appeal. Examples include adjudi- catory hearings, administrative hearings, com- petency hearings, EX PARTE hearings, IN CAMERA hearings, pretrial hearings, post-trial hearings, hearings IN REM, hearings quasi in rem, and summary hearings, just to name a few. For each of these examples, the word “proceeding” could be substituted for the word “hearing.” SUPPLEMENTARY PROCEEDINGS are separate from the original action. They help a successful party collect what is owed on a judgment by summoning the defendant-debtor, requiring that individual to disclose what he or she owns, and ordering that it be delivered in order to satisfy the judgment. PROCEEDS The yield, income, money, or anything of value produced from a sale of property or a particular transaction. Proceeds refers to whatever is received when an item is sold or to that which results or accrues from some possession or transaction. Proceeds are classified into cash and noncash categories. PROCESS A series of actions, motions, or occurrences; a method, mode, or operation, whereby a result or effect is produced; normal or actual course of procedure; regular proceeding, as, the process of vegetation or decomposition; a chemical process; processes of nature. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 140 PROCEDURAL LAW In patent law, an art or method by which any particular result is produced. A definite combina- tion of new or old elements, ingredients, opera- tions, ways, or means to produce a new, improved, or old result, and any substantial change therein by omission, to the same or better result, or by modification or substitution, with different func- tion, to the same or better result, is a new and patentable process. In civi l and criminal proceedings, any means used by a court to acquire or exercise its jurisdiction over a person or over specific property. A summons or summons and complaint; some- times, a writ. CROSS REFERENCE Service of Process. PROCESS SERVER A person authorized by law to deliver papers, typically the complaint, to the defendant. CROSS REFERENCE Service of Process. PROCHEIN AMI See NEXT FRIEND. PROCLAMATION An act that formally declares to the general public that the government has acted in a particular way. A written or printed document issued by a superior government executive, such as the president or governor, which sets out such a declaration by the government. PROCTOR A person appointed to manage the affairs of another or to represent another in a judgment. In English law, the name formerly given to practitioners in ecclesiastical and admiral ty courts who performed duties similar to those of solicitors in ordinary courts. In old ENGLISH LAW , a proctor was an attorney who practiced in the ecclesia stical and admiralty courts. Proctors, also known as procurators, served a similar function as solici- tors in the ordinary courts of England. The title of proctor was merged with that of solicitor in 1873, but it is sometimes used in the United States to designate practitioners in probate and admiralty courts. The use of proctors and procurators was an important step in English law because it signified the acceptance of LEGAL REPRESENTATION. Procuration allowed one person to give power to another to act in his behalf. The proctor became the agent of the client, leg ally entitled to perform all actions that the client could have performed. A procuracy was the writing or instrument that authorized a proctor or procurator to act. The document called a POWER OF ATTORNEY, which authorizes an attorney or agent to represent a person’s interests, is based on this relationship. A power of attorney may be general, giving the agent blanket authority to perform all necessary acts for the person, or specific, limiting the agent to certain actions. The term procuracy was shortened to PROXY, which has gained a more specific meaning. A proxy is a person who is substituted or designated by another to represent him or her, usually in a meeting or before a public body. Shareholders in a corporation commonly use a written proxy to give someone else the right to vote their shares at a shareholders’ meeting. PROCURE To cause something to happen; to find and obtain something or someone. Procure refers to commencing a proceeding; bringing about a result; persuading, inducing, or causing a person to do a particular act; obtaining possession or control over an item; or making a person available for sexual intercourse. PRODUCE As a noun, the product of natural growth, labor, or capital. Articles produced or grown from or on the soil, or found in the soil. As a verb, to bring forward; to show or exhibit; to bring into view or notice; as, to present a play, including its presentation in motion pictures. To produce witnesses or documents at trial in obedience to a subpoena or to be compelled to produce materials subject to discovery rules. To make, originate, or yield, as gasoline. To bring to the surface, as oil. To yield, as revenue. Thus, funds are produced by taxation, not when the tax is levied, but when the sums are collected. PRODUCING CAUSE See PROXIMATE CAUSE. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRODUCING CAUSE 141 PRODUCT LIABILITY Product liability is the responsibility of a manu- facturer or vendor of goods to compensate for injury caused by defective merchandise that it has provided for sale. When individuals are harmed by an unsafe product, they may have a CAUSE OF ACTION against the persons who designed, manufac- tured, sold, or furnished that product. In the United States, some consumers have hailed the rapid growth of product liability litigation as an effective tool for CONSUMER PROTECTION. The law has changed from caveat emptor (let the buyer beware) to STRICT LIABILITY for manufacturing defects that make a product unreasonably dangerous. Manufacturers and others who distribute and sell goods argue that product liability verdicts have enriched plaintiffs’ attor- neys and added to the cost of goods sold. Businesses have sought TORT reform from state legislatures and Congress in hopes of reducing damage awards that sometimes reach millions of dollars. Theories of Liability In most jurisdictions, a plaintiff’s product liability cause of action may be based on one or more of four different theories: NEGLIGENCE, breach of WARRANTY, MISREPRESENTATION, and strict tort liability. Negligence refers to the absence of, or failure to exercise, proper or ordinary care. It means that an individual who had a legal obligation either omitted to do what should have been done or did something that should not have been done. A manufacturer can be held liable for negligence if lack of reasonable care in the production, design, or assembly of the manu- facturer’s product caused harm. For example, a manufacturing company might be found negli- gent if its employees did not perform their work properly or if management sanctioned improper procedures and an unsafe prod uct was made. Breach of warranty refers to the failure of a seller to fulfill the terms of a promise, claim, or representation made concerning the quality or type of the product. The law assumes that a seller gives certain warranties concerning goods that are sold and that he or she mu st stand behind these assertions. Misrepresentation in the advertising and sales promotion of a product refers to the process of giving consumers false security about the safety of a particular product, ordinarily by drawing attention away from the hazards of its use. An action lies in the intentional conceal- ment of potential hazards or in negligent misrepresentation. The key to recovery on the basis of misrepresentation is the plaintiff’s ability to prove that he relied upon the representations that were made. Misrepresentation can be argued under a theory of breach of express warranty or a theory of strict tort liability. Strict liability involves extending the re- sponsibility of the vendor or manufacturer to all individuals who might be injured by the product, even in the absence of fault. Injured guests, bystanders, or others with no direct relationship to the product may sue for damages caused by the product. An injured party must prove that the item was defective, the defect proximately caused the injury, and the defect rendered the product unreasonably dangerous. Historical Development The history of the law of product liability is largely a history of the erosion of the doctrine of privity, which provides that an injured person can sue the negligent person only if the negligent person was a party to the transaction with the injured person. In other words, a defendant’s duty of reasonable care arose only from the contract, and only a party to that contract could sue for its breach. A negligent manufacturer could sell a product to a retailer, who in turn would sell the product to the PLAINTIFF. Because the plaintiff did not purchase the product directly from the manufacturer, the plaintiff could not recover from the manufac- turer. And in such an instance, the plaintiff was usually without a remedy in tort because it was the manufacturer and not the retailer whose negligence caused the harm. The privity doctrine dominated nineteenth- century law, yet courts created exceptions to avoid denying an injured plaintiff a remedy. Soon privity of contract was not required where the seller frau dulently concealed the defect or where the products were inherently or immi- nently dangerous to human life or health, such as poisons or guns. The decisions then began to expand these exceptions. Some courts dropped the FRAUD requirement. A concealed defect coupled with some sort of “invitation” by the DEFENDANT to use the product was enough. In a few cases, the term imminently dangerous was construed to mean especially dangerous by reason of the defect itself and not necessarily dangerous per se. For example, products GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 142 PRODUCT LIABILITY intended for human consumption, a defective scaffold, and a coffee urn that exploded would be considered imminently dangerous. The seminal case of MACPHERSON V. BUICK MOTOR CO ., 217 N.Y. 382, 111 N.E. 1050 (N.Y. 1916), broadened the catego ry of “inherently” or “imminently” dangerous products so as to effectively abolish the privity requirement in negligence cases. It held that lack of privity is not a defense if it is foreseea ble that the product, if negligently made, is likely to cause injury to a class of persons that includes the plaintiff. Because this is essentially the test for negligence, the exception swallowed the rule. The Mac- Pherson case quickly became a leading authority, and the privity rule in negligence cases soon was ignored. Increasing public sympathy for victims of industrial negligence also contributed to the demise of the rule. In warranty, a similar privity limitation was imposed, in part because warranties were thought to be an integral part of the sales contract. Beginning in the early twentieth century, an exception to the privity rule devel- oped for cases involving products intended for human consumption (food, beverages, drugs) and eventually also for products intended for “intimate bodily use” (e.g., cosmetics) so that the warranty in these cases extended to the ultimate consumer. In the case of express warranties, which could be said to be made to the public generally, the privity requirement was aban- doned during the 1930s. For example, a manufacturer’s statement in literature distrib- uted with an automobile that the windshield was “shatterproof” constituted an express warranty to the purchaser that the windshield would not break (Baxter v. Ford Motor Co., 168 Wash. 456, 12 P.2d 409 [Wash. 1932]). But with respect to implied warranties, exception to the privity rule did not extend beyond food, drink, and similar products until Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960). In this case, the New Jersey Supreme Court abolished the privity limitation generally and held that the implied warranties run to the foreseeable ultimate user or consumer of the product. The Henningsen decision, which also invalidated the manufacturer’s attempted dis- claimer of IMPLIED WARRANTY liability, has been followed in almost all jurisdictions. From 1930 to 1960, various legal writers and a few judges discussed the creation of strict liability in tort for defective products. The best- known judicial exposit ion of this view was California Supreme Court Justice Roger John Traynor’s concurring opinion in Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal. 2d 453, 150 P.2d 436 (1944). A number of justifications have been advanced for strict liability: negli- gence is often too difficult to prove; strict liability can be accomplished through a series of actions for breach of warranty; strict liability provides needed safety incentives; the manufac- turer is in the best position to either prevent the harm or insure or spread the cost of the risk; and the manufacturer of a prod uct induces consumer reliance on the expectation of the product’s safety and should be made to stand behind the product. Finally, in 1963, in Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 377 P.2d 897, the California Supreme Court adopted strict tort liability for defective products. Within a short time, strict liability swept the country and eventually became law in most states. Negligence The duty to guard against negligence and supply a safe product applies to everyone in the chain of distribution. Parties in this chain include a manufacturer who carelessly makes a defective product, the company that uses the product to assemble something else without discovering an obvious defect, and the vendor who should exercise greater care in offering products for sale. These individuals owe a duty of care to anyone who is likely to be injured by such a product if it is defective, including the initial buyer, that person’s family members, any bystanders, and persons who lease the item or hold it for the purchaser. Additionally, the duty to exercise care involves all phases of getting a product to the consumers or users. The product must be designed in such a way that it is safe for its intended use. It must be inspected and tested at different stages, made from the appropriate materials, and assembled carefully. The pro- duct’s container or packaging must be adequate. The manufacturer must also furnish adequate warnings and directions for use with the product. The seller is proscribed from mis- representing the safety or character of the product and must disclose all defects. Breach of Warranty Warranties are certain kinds of express or implied representations of fact that the law will GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRODUCT LIABILITY 143 enforce against the warrantor. Product liability law is concerned with three types of warranties involving the product’s quality or fitness for use: express warranty, implied warranty of mer- chantability, and implied warranty of fitness for a particular purpose. These and other warran- ties are codified in the UNIFORM COMMERCIAL CODE (UCC), which every state has adopted, at least in part. An express warranty can be created in one of three ways: through an affirmation of fact made by the vendor of the goods to the purchaser relating to the goods, which becomes part of the bargain; by way of a description of the goods, which is made part of the basis of the bargain; and through a sample or model, which is made part of the basis of the bargain (U.C.C. § 2-313). An expres s warranty can be words spoken during negotiations or written into a sales contract, a sample, an earlier purchase of the same kind of product, or claims made in publicity or on tags attached to the product. An express warranty is created when a salesper- son states that the product is guaranteed to be free from defects for one year from the date of the purchase. Implied warranties are those created and imposed by law and accompany the transfer of title to goods, unless the warranty is expressly and clearly limited or excluded by the contract. However, with respect to damag es for PERSONAL INJURY , the UCC states that any such contractual limitations or exclusions are “prima facie unconscionable” andcannotbeenforced(U.C.C. § 2-719[3]). The implied warranty of merchantability requires that the product and its container meet certain min imum standards of quality, chief ly that the product be fit for the ordinary purposes for which such goods are sold (U.C.C. § 2-314). This requirement includes a standard of rea- sonable safety. The implied warranty of fitness for a particular purpose imposes a similar require- ment in cases in which the seller knows or has reason to know of a particular purpose for which the goods are required and in which the buyer is relying on the seller to select or furnish suitable goods. The seller then warrants that the goods are fit for that particular purpose (U.C.C. § 2-315). For example, assume that the buyer tells the seller, a computer supplier, that he needs a high-speed computer to manage inventory and payroll functions for his business. Once the seller recommends a particular computer to handle these requirements, the seller is making an implie d warranty of fitness. If the computer cannot adequately process the inventory and payroll, the buyer may file suit. The action for breach of one of these warranties has aspects of both tort and contract law. Its greatest value to the injured product user lies in the fact that liability for breach is strict. No negligence or other fault need be shown. However, in addition to the privity limitation, certain contrac t-related defenses have impaired the remedy’s usefulness. These include the requirement that the seller receive reasonably prompt notice of the breach as a condition to his or her liability, the requirement that the buyer has relied upon the warranty, and the ability of the seller to limit or disclaim entirely the implied warranties. These defenses are most appropriate in cases in which a product’s failure causes economic loss. The trend has been away from strict enforcement of these defenses in personal in jury cases in which the action is closer to a tort action. Strict Liability The rule of strict liability applied in product liability suits makes a seller responsible for all defective items that unreasonably threaten the personal safety of a consumer or the consumer ’s property. The vendor is liable if he or she regularly engaged in the business of selling such products, which reach the consumer without any substantial changes having been made in their condition. The vendor is liable even if he or she exercised care in handling the product and if the consumer bought the product somewhere else and had no direct dealings with the vendor. Defects A critical issue in a product liability lawsuit is whether the product contains a defect, which is an imperfection that renders a product unsafe for its intended use. Design defects exist when a whole class of products is inadequately planned in such a way as to pose unreasonable hazards to consumers. For example, an automobile manufacturer’s design of a vehicle with the fuel tank placed in such a position that it will explode upon low-speed impact can be classi- fied as defective. In that case, products manu- factured in conformity with the intended design would be defective. A production defect arises when a product is improperly assembled. For GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 144 PRODUCT LIABILITY example, frames of automobiles that are improperly welded to the body at the assembly plant would be classified as a production defect. In addition, something other than the product itself can cause it to be defective. For example, caustic chemicals should be packaged in appropriate containers. Improper labeling, instructions, or warnings on a product or its container also make a product defective. Dangerous products should carry warning labels that explain how they should be used, under what circumstances they are likely to cause harm, and what steps can be taken in an emergency involving the product. The principle of proper labeling includes claims made in sales brochures, product dis- plays, and public advertising. It extends beyond warranty or negligence law, because a seller is strictly liable to users or purchasers of the product who are not in privity with the seller. A manufacturer who creates the demand for goods through print and broadcast media has the responsibility to determine that the product has the qualities represented to the general public. Some courts allow injured consumers to sue even if they have not read a certain label or advertisement. The standard is that if the advertisement is directed toward the public at large and makes claims that a normal consumer would take into consideration when deciding to make a purchase, then the manufacturer must stand behind that claim for every member of the public. Cause of Injuries The issue of causation of injuries can be complicated, particularly if the product in- volved is only an indirect or remote cause or one of a number of causes. Regardless of the theory of liability, the plaintiff must prove that the product was defective when it left the hands of the defendant and that the defect was the cause of injury. These issues are ordinarily QUESTIONS OF FACT to be decided by the jury. When the ev idence indicates that an injury might have been precipitated by several causes, the question becomes whether the cause for which the defendant is liable was a substantial factor in bringing about the injury. A defendant is not necessarily liable if he is responsible for the last cause or the immediate cause of the injury. For example, a person who was injured by a cooking pot that fell apart when the person removed it from the stove might not have to show that a defect in the pot handle was the only possible explanation for the accident. The jury could still properly consider whether a defect was a concurring cause of the accident, even if they found that the plaintiff misused the pot by handling it too roughly. Risks A manufacturer has the duty to make the product as safe as possible. If the manufacturer cannot do so, he has the obligation to adequately warn users and buyers of the dangers that exist. The concept of a reasona bly safe product extends to all dangers likely to arise when the product is being used normally or in a way that can be anticipated, ev en if it is not the purpose for which it was sold. For example, a manufacturer might foresee that someone is likely to stand on a table and might be required either to make it sufficiently strong and stable for people to do so without sustaining injury or to warn customers not to stand on it. No liability is extended to a manufacturer if a plaintiff was disappointed because he or she had unreasonable hopes for a particular prod- uct. Frequently, however, a consumer’s expec- tations are clearly reasonable but are not met. For example, no one expects to find defective brakes in a new automobile. In some instances, a defect might not be inherent in the product, but a consumer should be aware that care is needed. An average adult need not be warned that knives cut, that dynamite explodes, or that electrical appliances should not be used in the shower. A consumer who ignores hazards will not succeed in an action alleging product liability. However, many man- ufacturers print warnings about commonsense hazards to provide added protection from a lawsuit. Traditionally, an individual must be at least as careful as a reasonably careful person. Increasing recognition has been given, however, to a more realistic standard: the occasionally careless consumer. Courts are now less inter- ested in how obvious a danger is and more concerned with discovering how serious the risk is and how readily it could have been avoided. A consumer who clearly misuses a product cannot recover if an injury results. For example, a person who disregards a printed warning that nail polish remover is for external use only cannot blame the manufacturer for making an imperfect product if he or she ingests it. In addition, the consumer is precluded from recovery if he or she continues to use a product GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRODUCT LIABILITY 145 that is obviously dangerous. The theory is that the consumer has assumed the risk. This rule applies, however, only to obvious defects and does not establish a duty for consumers to scrutinize every product they purchase. Whether a consumer has assumed responsi- bility for using an obviously dangerous product or misused a relatively safe product depends on who the user is likely to be. The classic example is children’s clothing, which generally must be at least somewhat flame-resistant, because children are less able to appreciate the danger of accidental fires. During the 1990s and early 2000s, several lawsuits brought against cigarette manufacturers were based on the general theory that these manufacturers withheld information about the dangers of smoking. Several appellate courts have upheld jury awards in favor of plaintiffs in these suits. For instance, in Liggett Group, Inc. v. Davis, 973 So. 2d 467 (Fla. App. 2007), a Florida appellate court upheld a jury award in favor of a plaintiff who argued that she did not know the extent of the dangers of smoking prior to placement of warning labels in 1968. Unavoidable Dangers Although manufacturers and sellers have a duty to take precautions and provide adequate warnings and instructions, the public can still obtain products that are unavoidably unsafe. A seller is not held strictly liable for providing the public with a product that is needed and wanted in spite of the potential risk of danger. Prescription drugs illustrate this principle because all of them have the potential to cause serious harm if used unreasonably. The duty to warn consumers of unavoidable dangers presents special problems if certain individuals are likely to suffer allergic reactions. The law considers an allergy to be a reaction suffered by a minority of people that is triggered by exposure to some substance. Courts used to reject claims based on allergic reactions, reason- ing that the product was reasonably safe and that the injury was caused by a defect peculiar to the individual. That approach has been abandoned, with manufacturers providing careful instruc- tions on use and clear warnings about possible symptoms that suggest an allergic reaction. Multiparty Litigation Since the 1970s, groups of plaintiffs have filed consolidated lawsuits against the manufacturers of certain products. The makers of contraceptive devices, silicone breast implants, asbestos, and tobacco products have encoun- tered this type of multiparty litigation. In many states, one judge is appointed to handle all cases involving claims against such a manufacturer. The litigation process can prove costly for defendants because they may have to defend themselves in many different states. The result- ing verdicts or negotiated settlements can also be very expensive to companies. Product Liability Reform Businesses have sought relief from state legis- latures and Congress regarding product liability, contending that the shifting legal standards make them vulnerable to even the most suspect clai m. Some states have passed laws that provide manufacturers with the right to defend them- selves by showing that their product met generally acceptable safety standards when made. This assertion is known as the state-of- the-art defense, which relieves manufacturers of the task of attempting to make a perfect product. An injured consumer cannot recover on the theory that the product would have been safe had the ma nufacturer incorporated safety features that were developed after the product was made. Consumer advocates have opposed such laws because they allow manufacturers to avoid liability. The advocates argue that these laws discourage innovation because higher safety standards are set as improvements are made. Businesses have also attempted to set maxi- mum amounts that persons can recover for PUNITIVE DAMAGES. Some states have capped awards for punitive damages. In 1996 President BILL CLINTON vetoed a bill that would have limited punitive damage awards to $250,000, or two times the economic and non-economic damages, whichever amount was greater, stating that it would deprive U.S. families of the ability to fully recover for injuries caused by defective products. In the same year, the Supreme Court imposed its own version of product liability reform with BMW v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996). The case involved an automobile purchaser who brought action against a foreign automobile manufac- turer, American distributor, and dealer based on the distributor’s failure to disclose that the automobile had been repainted after being damaged prior to delivery. An Alabama circuit court entered a judgment in the case of COMPENSATORY DAMAGES of $4,000 and punitive damages of $2,000,000. The Supreme Court GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 146 PRODUCT LIABILITY ruled unanimously the punitive damages award was excessive. In this case, the Court devised three factors to assist trial judges in determining whether a jury’s punitive damages award were excessive: (1) the degree of reprehensibility of the defendant’s conduct; (2) the disparity between the harm or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages award and the civil or criminal penalties authorized or imposed in comparable cases. The BMW case showed that there were limits under the Constitution to the amount of punitive damages that could be imposed. Federal Preemption of State Product Liability Law For the most part, product liability law is governed by state law. Occasionally, the federal government will move to preempt an entire area of product liability law from state control in order to protect a certain group of manufac- turers. An example of this is the Fede ral Biomaterials Access Assurance Act (21 U.S.C.A. §§ 1601-1606), a 1998 law that protects suppliers of materials for implantable medical devices from “unwarranted” suits by laying out the permissible basis of biomaterials supplier liability. Under the act, a biomaterials supplier may only be held liable in three situations: (1) when the supplier is a manufacturer of medical implants under the act; (2) when the supplier is a selle r of medical implants; or (3) when the supplier sold materials that did not meet contractual specifications of the manufacturer. More problematically, a court will have to decide whether an area of product liability is affected b y a federal law that does not expressly preempt product liability suits but may indicate the federal government wished such suits to be preempted. For implied PREEMPTION,theSupreme Court has recognized two subcategories: field pre- emption and conflict pre-emption. Under field pre-emption, a state statute is superceded when a federal statute wholly occupies a particular field and takes away state power to supplement it. Conflict pre-emption occurs when compliance with bo th the federal and state st atute is impossi- ble, and the state law stands as an obstacle to the legislative objectives of Congress. An example of conflict preemption is Geier v. American Honda Motor, Inc., 529 U.S. 861, 120 S. Ct. 1913, 146 L. Ed. 2d 914 (2000), in which the Court ruled against an injured motorist who brought a defective design action against the automobile manufacturer under District of Columbia TORT LAW, contending that the manufacturer was negligent in failing to equip the automobile with a driver’s side airbag. The Court ruled the law suit was preempted in that it actually conflicted with the DEPARTMENT OF TRANSPORTATION (DOT) standard, promulgated under National Traffic and Motor Vehicle Safety Act, requiring man ufacturers to place driver’s side airbags in some but not all 1987 automobiles. The Court noted the rule of state law imposing duty to install airbag would have presented an obstacle to the variety and mix of safety devices and gradual passive restraint phase-in sought by the DOT standard. The pharmaceutical industry during the early 2000s has asserted that drug manufacturers should be shielded from liability based on harm caused by drugs based on a theory that the FOOD AND DRUG ADMINISTRATION (FDA) approved the drugs. In 1999, for instance, the FDA approved the painkiller Vioxx, and drug man ufacturer Merck & Co., Inc. launched the product during the same year. Evidence emerged that Vioxx caused heart problems among users, and Me rck eventually withdrew the drug from the market. Several thousand plaintiffs brought lawsuits and won jury awards. Merck argued in several cases that because the FDA approved the drug, the company should be shielded from liabili ty. As of 2009, most courts had rejected this argument. For example, in In re Vioxx Products Liability Litigation, 501 F. Supp. 2d 776 (E.D. La. 2007), the U.S. District Court for the Eastern District of Louisiana concluded the FDA position regarding the drug did establish a federal law that preempted the state-law claim. Manufacturers of such products as pharma- ceuticals and tobacco products have aggressively The FDA-approved drug Vioxx was found to cause heart problems, leading to a slew of lawsuits against the drug’s manufacturer, Merck & Co., Inc. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION PRODUCT LIABILITY 147 . process; processes of nature. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 140 PROCEDURAL LAW In patent law, an art or method by which any particular result is produced. A definite combina- tion of new. character of the product and must disclose all defects. Breach of Warranty Warranties are certain kinds of express or implied representations of fact that the law will GALE ENCYCLOPEDIA OF AMERICAN LAW, . circuit court entered a judgment in the case of COMPENSATORY DAMAGES of $4,000 and punitive damages of $2,000,000. The Supreme Court GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 146 PRODUCT LIABILITY ruled