Information Shields in Tort Law
Responsibility theory suggests that the more correct information a person has about a dangerous thing or situation, the more likely it is that the person will make informed choices about how to confront such risks, and the more likely such choices will be cost-effective and rational. The premises for these conclusions include: (1) at an individual level, that people are rational beings, and that more and better information about risk permits people to make informed decisions; (2) at a social level, that people strive to make just, socially-beneficial choices when they can do so without undue harm to themselves; and (3) at a political level, that the more personal decision making that can be left to individuals, the less that government interferes with personal choice.
This chapter inquires into the extent to which tort law does and should impose responsibility on actors for harm to persons who possess full risk information, either because the risk was obvious or the victim was warned about it. Put otherwise, when a person chooses to engage a risk about which he or she has full information and is injured as a result, should that person bear responsibility for the harmful result?
The chapter proceeds to develop a model Liability Shield program that would shield manufacturers from liability if they provide consumers with full information of product hazards. Although such a program is attractive in abstract responsibility theory, it is seen to rest perilously upon twin pillars wrought of little more than fantasy: human rationality, an ideal that is undermined by real-world frailties of human cognition and behavior; and institutional responsibility, undermined by real-world obstacles to fair and efficient behavior by manufacturers and safety agencies.
David G. Owen,Information Shields in Tort Law, 295 Exploring Tort Law (S. Madden ed., Cambridge Univ. Press, 2005)