V. Tort law
    D. Liability
    3. Strict liability (cont'd.)

    in McDaniel v. McNeil Lab. Inc., (1976), FDA approval with full disclosure by McDaniel Labs was deemed sufficient for ensuring lack of defect
    "While approval by the Food and Drug Administration is not necessarily conclusive, its determinations, based upon the opinions and judgment of its own experts, should not be subject to challenge in a product liability case simply because some other experts may differ in their opinions as to whether a particular drug is reasonably safe, unless there is some proof of fraud or nondisclosure of relevant information by the manufacturer at the time of obtaining or retaining such federal approval."
    => as with customary behavior, government approval is relevant but not conclusive

    Product liability also allows a defense based on misuse: Per Traynor in Escola v. Coca Cola: "The manufacturer's liability should, of course, be defined in terms of the safety of the product in normal and proper use, and should not extend to injuries that cannot be traced to the product as it reached the market."

    However, product liability can => that manufacturer must anticipate "foreseeable misuse."
    A manufacturer sells a machine whose moving parts are not shielded, and a worker is injured when he sticks his hand in them. He was careless in doing so, the danger being apparent, and yet the manufacturer could have shielded the moving parts, and thus prevented the accident, at a trivial cost. In many states, he would be held liable to the worker.  (P183)

    4. Joint liability

    Summers v. Tice 33 Cal. 2d 80 (1948)

1. What are the facts of the case?
2. Why did the defendants claim that they should not be held liable?
3. Was the plaintiff negligent?
4. Does the plaintiff know how he was injured?
5. Does the plaintiff know who injured him?
6. Could anyone besides one of the defendants be the actual injurer?
7. Can you describe any negligent act committed  by the defendants?
8. Did the defendants act in concert?
9. Does the court consider that relevant?
10. Did the plaintiff receive damages?
11. How much is each defendant liable for?
12. How is the allocation of the damages apportioned?

    illustrates joint torts => multiple possible or actual causes
    court decision: "each defendant is liable for the whole damage whether they are deemed to be acting in concert or independently."
    the plaintiff is not denied relief "simply because he cannot prove how much damage each did, when it is certain that between them they did all...."

    usual legal rule: defendants are subject to 

"joint	and several liability	with contribution"
Victim can sue all injurers...	or any of the injurers for the full damage,	with compensation from each injurer subtracted from the total balance owed.

    "with contribution" limits recovery to value of loss
    In Summers v. Tice: "The wrongdoers should be left to work out between themselves any apportionment."

    What inefficiency could result if the victim collected the full loss from both?

    Economic analysis of joint liability:

    Ex: seatbelts--contracted out by a carmaker: effectiveness depends on how well they are constructed and how well they are anchored
    both parties can help avoid injury, but the injury is external to both

expected loss = P(s1,s2) x L     cost of safegaurds = C(s1) + C(s2)    Goal: make both choose the efficient level of precautions:     |dP/dSi| x L = MCsi, i = 1, 2     Efficiency => make each negligent party liable for the full amount of damages

    Notice how this parallels victim fault: it doesn't matter how the allocation is made, since each party can escape entire liability by avoiding negligence, each has incentives to take all cost-effective safeguards.
    Only negligent parties will be left with the tab
    Since it is not economically rational to be negligent, each must anticipate being the only negligent party and therefore responsible for the entire loss.

    Ybarra v. Spangard 25 Cal. 2d 486 (1944)

1. P: Why did you file this case?
2. D: Why do you think you shouldn't be held liable?
3. P: Do you know how you were injured?
4. P: Do you know who injured you?
5. P: Could anyone besides one of the defendants be the actual injurer?
6. P: Can you describe for us any negligent act by any of the defendants that you are aware of?
7. P: What doctrine do you rely on to base your claim?
8. D: Why do you feel that the doctrine doesn't apply in this case?
9. D: Have any of you stepped forward to acknowledge any negligent act on your part
10. D: How does that illustrate an advantage you gain in future similar cases if the court rules in your favor?
11. D: Any other points you would like to raise?
12. P: Any final arguments?
13. Others: Are defendants liable?
14. D: The trial court originally threw out this case. Did the appeals court agree with that decision?

    Illustrates that in cases of joint liability, the common burden of proof can be shifted and defendants may face the burden of proof that none of them were negligent.
    "We merely hold that where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct."