Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.
HAZARDS EQUITY: A PERSPECTIVE ON THE COMPENSATION SYSTEM 113 original typesetting files. Page breaks are true to the original; line lengths, word breaks, heading styles, and other typesetting-specific formatting, however, cannot be About this PDF file: This new digital representation of the original work has been recomposed from XML files created from the original paper book, not from the retained, and some typographic errors may have been accidentally inserted. Please use the print version of this publication as the authoritative version for attribution. has a long-standing line of cases that limit the property damage liability of a person who negligently starts a fire to the first affected property of another person (Ryan v. New York Central R.R. Co.; Homac v. Sun Oil Co.). The New York cases, which represent an attempt to place a space limitation on liability, refer to the unknown vagaries of the wind which carries the fire. On the other hand, Kansas has allowed property owners to recover for damage to wheat fields where the source of the negligently started fire was several miles away and crossed other wheat fields (Atchison, Topeka, & Santa Fe R.R. Co. v. Stanford). And distance has been no factor in the Oregon forest fire cases (Silver Falls Timber Co. v. Eastern & Western Lumber Co.). The wind was viewed as foreseeable in Kansas and Oregon. It would appear that the predictability or the nonpredictability of the wind in each of these cases simply was a rationalization of the foreseeability rule to set a public policy limit on liability. Product Liability Cases Now let us turn to an example in the area of product liability, where the doctrine of foreseeability is more relevant to the issues under consideration here. What is the liability of a manufacturer for a product whose adverse effects were beyond the body of human knowledge at the time of the use that caused the injury at hand? Many, if not most, commentators argue that the focus should be on the characteristics of the product at the time of use, rather than on the knowledge and conduct of the manufacturer. These commentators urge the rejection of the foreseeability test in the products liability setting. They argue that the manufacturer is in a better position to bear and redistribute the burden of the harm (Escola v. Coca-Cola Bottling Co. of Fresno). However, most courts still apply the foreseeability test and will not allow a recovery against the manufacturer where the harm is found to be beyond discoverability at the time of the injury in question (Keeton and Prosser, 1984, p. 697). The so-called cigarette-cancer cases provide one example (Wegeman, 1966). Recovery has been denied to most elderly lung cancer victims with long histories of cigarette smoking on the grounds that the cause-and-effect relationship was unknown and not foreseeable in the damaging and early years of the smoking habit for this group of victims. Conversely, the newer generations of smokers have no claim against the manufacturer despite the foreseeability factor, because they are on notice about the dangers of cigarette smoking. (Of course, cases that truly involve the element of nondiscoverability must be distinguished carefully from the "smoking gun" cases, such as those involving asbestosis and the Dalkon shield.)
