Other Theories of Liability

One area of the law which has been subject to a great deal of controversy and expansion recently is the efforts of courts to deal with duty to warn situations in which a number of manufacturers might be involved. The courts have over time developed philosophies eind procedures for dealing with such situations. For instance, where a plaintiff can not identify which of two or more defendants caused an injury, the burden of proof in some cases may be shifted to the defendants for them to prove they were not responsible. The assumption here is that the defendants may be in a better position to provide the needed evidence than the plaintiff.  

Where there is an alleged concert of action among defendants the law, as defined by the Restatement, has adopted the following principles  

For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person  

This theory might be applicable to a situation where a group of manufacturers of a particular product assisted and encouraged each other to provide inadequate warnings of risk. 

The theory of enterprise liability has been developed to cover situations in which a group of manufacturers adhere to a practice, procedure or standard which itself leads to the manufacture of a particular, unidentifiable injiuy-producing product. 

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