Hofstra Law Review


A product claim based on breach of express warranty, tortious misrepresentation, or inadequate directions or warnings, requires the plaintiff to show not only that the product was defective and was the cause of his injury, but usually he must also show that he was aware of the defective representation. Proof of such awareness if not required when defects arise from the failure of a product to meet ordinary expectations, since these expectations are presumed. Where the defect consists of a representation, however, special expectations are supposed to be involved, and the plaintiff, in order to recover, may therefore be required to show his awareness of the misrepresentation.

Proof of such awareness is thought necessary to establish cause-in-fact. Cause-in-fact, however, is not a fixed quantum in every case, but may vary according to the policy considerations involved in the particular circumstances of each case. This article's thesis is that concern for proof of causation based on awareness should play a lesser role in representational defect cases than the courts usually accord the matter, because of countervailing policy considerations that minimize its importance. If the issue is considered at all, it should usually be a jury question rather than one of law for the court.

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