Corporate predecessor liability for defective products

1. See infra Part II.

2. James A. Barringer, Expanding the Products Liability of Successor Corporations, 27 HASTINGS L.J. 1305, 1305 (1976) (stating that the traditional corporate law rule "is directly in conflict with the policy underlying products liability law and is being used to frustrate consumers' actions for injuries suffered from the use of products").

3. See infra Parts II & III.

4. See infra Part II.

5. See infra Part Ill.

6. See infra Parts III & IV.

7. See, e.g., N.J. STAT. ANN. 2A:58C-2 (West 1987):

A manufacturer or seller of a product shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it: a. deviated from the design specifications, formulae, or performance standards of the manufacturer or from otherwise identical units manufactured to the same manufacturing specification or formulae, or b. failed to contain adequate warnings or instructions, or c. was designed in a defective manner.

8. See Barringer, supra note 2, at 1323; Michael D. Green, Successor Liability: The Superiority of Statutory Reform to Protect Products Liability Claimants, 72 CORNELL L. REV. 17,40 (1986).

9. See Polius v. Clark Equip. Co., 802 F.2d 75, 77 (3d Cir. 1986) (applying Virgin Islands law); R.J. Enstrom Corp. v. Interceptor Corp., 555 F.2d 277, 281 (10th Cir. 1977); Andrews v. John E. Smith's Sons Co., 369 So. 2d 781, 785 (Ala. 1979); Ray v. Alad Corp., 560 P.2d 3, 7 (Cal. 1977); Bernard v. Kee Mfg. Co., 409 So. 2d 1047, 1049 (Fla. 1982); Barron v. Kane & Roach, Inc., 398 N.E.2d 244, 246 (Ill. App. Ct. 1979); Nissen CorD. v. Miller, 594 A.2d 564, 566 (Md. 1991); Pelc v. Bendix Mach. Tool Corp., 314 N.W.2d 614,618 (Mich.

Ct. App. 1982); Niccum v. Hydra-Tool Corp., 438 N.W.2d 96, 98 (Minn. 1989); Ramirez v. Amsted Indus., Inc., 431 A.2d 811, 813 (N.J. 1981); Downtowner, Inc. v. Acrometal Pmd., 347 N.W.2d 118, 121 (N.D. 1984); Flaugher v. Cone Automatic Mach. Co., 507 N.E.2d 331, 334 (Ohio 1987); Dawejko v. Jorgensen Steel Co., 434 A.2d 106, 107 (Pa. Super. Ct. 1993); Ostrowski v. Hydra-Tool Corp., 479 A.2d 126, 127 (Vt. 1984); Tift v. Forage King Indus., 322 N.W.2d 14, 15 (Wis. 1982); RESTATEMENT (THIRD) of TORTS: PRODUCTS LIABILITY sec 12 (1997) (adopting the traditional rule); SUSAN E. LOGGANS, PRODUCTS LIABILITY LITIGATION: CASE EVALUATION 7.05 (1988); Robert E. Aylward & Janice S. Aylward, Successor Liability for Defective Products-Misplaced Responsibility, 13 STETSON L. REV. SSS, SSS (1984); David M. Phillips, Products Liability of Successor Corporations: A Corporate and Commercial Law Perspective, 11 HoFSTRA L. REV. 249, 249 (1982); Theresa L. Kruk, Annotation, Successor Products Liability: Form of Business Association of Successor or Predecessor as Affecting Successor Liability, 32 A.L.R. 4th 196, 197 (1984).

10. See, e.g., Polius, 802 F.2d at 78; Enstrom, SS F.2d at 281; Andrews, 369 So. 2d at 785; Ray, 560 P.2d at 7; Barron, 398 N.E.2d at 246.

11. See, e.g., Nissen, 594 A.2d at 566; Pelc, 314 N.W.2d at 618; Ramirez, 431 A.2d at 815; McKee v. Harris Seybold Co., 264 A.2d 98, 101 (N.J. Super. Ct. Law Div. 1970); Flaugher, 507 N.E.2d at 334.

12. See, e.g., Polius, 802 F.2d at 78; Andrews, 369 So. 2d at 785; Dawejko, 434 A.2d at 107; Ostrowski, 479 A.2d at 127; ?ijt, 322 N.W.2d at 15.

13. See, e.g., Ray, 560 P.2d at 7; Barron, 398 N.E.2d at 246; Nissen, 594 A.2d at 566; Pelc, 314 N.W.2d at 618; Ramirez, 431 A.2d at 813.

14. See Ramirez, 431 A.2d at 815; McKee, 264 A.2d at 101; Dawejko, 431 A.2d at 107; Ostrowski, 479 A.2d at 127.

15. See Polius, 802 F.2d at 78; Turner v. Bituminous Cas. Co., 244 N.W.2d 873, 878 (Mich. 1976); Ramirez, 431 A.2d at 815; Martin v. Abbott Lab., 689 P.2d 368, 385 (Wash. 1984); Ti, 322 N.W.2d at 15; LOGGANS, supra note 9, 7.05.

16. Aylward & Aylward, supra note 9, at 557; Barringer, supra note 2, at 1305. 17. See Martin, 689 P.2d at 385.

18. Green, supra note 8, at 24.

19. See Ramirez, 431 A.2d at 817; Martin, 689 P.2d at 385; Green, supra note 8, at 24.

20. See Andrews v. John E. Smith's Sons Co., 369 So. 2d 781, 785 (Ala. 1979) (adopting an expanded continuation exception); Chemical Design, Inc. v. American Standard, Inc., 847 S.W.2d 488, 492 (Mo. Ct. App. 1993) (noting that New York, Alabama, and Illinois had expanded the continuation exception); ?if, 322 N.W.2d at 17 (finding that a successor corporation was a mere continuation of the predecessor sole proprietorship).

21. See Turner v. Bituminous Cas. Co., 244 N.W.2d 873, 882 (Mich. 1976); Class v. American Roller Die Corp., 683 A.2d 595, 603 (N.J. Super. Ct. Law Div. 1996), rev'd on other grounds, 705 A.2d 390 (N.J. Super. Ct. App. Div. 1998); Aylward & Aylward, supra note 9, at 566.

22. See Polius v. Clark Equip. Co., 802 F.2d 75, 83 (3d Cir. 1986) (noting but not adopting the factor); Holloway v. John E. Smith's Sons Co., 432 F. Supp. 454, 456 (D. S.C. 1977) (finding the successor corporation liable where it had the same address, product, and employees as the predecessor); Andrews, 369 So. 2d at 785 (holding that a successor could be liable for the predecessor's product because the successor had the same location, employees, and products); Turner, 244 N.W.2d at 883-84 (adopting this factor); Pelc v. Bendix Mach. Tool Corp., 314 N.W.2d 614, 618 (Mich. Ct. App. 1982); 63 AM. JUR. 2D Products Liability 132 (1997).

23. See Polius, 802 F.2d at 83; Turner, 244 N.W.2d at 883-84 (noting but not adopting this factor); Pelc, 314 N.W.2d at 618; 63 AM. JuR. 2v Products Liability 132 (1997).

24. See Polius, 802 F.2d at 79, 83; Turner, 244 N.W.2d at 879, 883-84 (adopting this factor); Pelc, 314 N.W.2d at 618; 63 AM. JUR. 2D Products Liability 132 (1997).

25. See Polius, 802 F.2d at 79, 83; Holloway, 432 F. Supp. at 456 (noting that the successor corporation was holding itself out as a continuation of the predecessor because it was operating under a virtually identical name); Andrews, 369 So. 2d at 785; Turner, 244 N.W.2d at 879, 883-84 (adopting this factor); Pelc, 314 N.W.2d at 618; Chemical Design, Inc., 847 S.W.2d at 492 (stating that some cases hold that a successor corporation that "takes advantage of the trade name and good will of the seller is estopped from claiming it has not also succeeded to the liabilities of the seller"); 63 AM. JUx. 2D Products Liability 132 (1997).

26. See Martin v. Abbott Lab., 689 P.2d 368, 388 (Wash. 1984) (stating that the product line exception and the mere continuation exception are founded on the same principles).

27. See LaFountain v. Webb Indus. Corp., 951 F.2d 544, 547 (3d Cir. 1991) (explaining that under the product line exception, a successor corporation that continues the same manufacturing operation as the predecessor "may be strictly liable for defects in products in the same line even though they were in fact made by the predecessor"); Ramirez v. Amsted Indus., Inc., 431 A.2d 811, 819 (N.J. 1981) (holding that the focus in a successor liability case "should be on the successor's continuation of the actual manufacturing operation"); Goncalves v. Wire Tech. & Mach. Co., 601 A.2d 780, 783-84 (N.J. Super. Ct. Law Div. 1991) (holding that a successor company was liable for a defective spooler machine built by its predecessor because it had continued the predecessor's manufacture of spooler machines); Barringer, supra note 2, at 1330 (noting that product identity is the focal point of the rule).

28. See Ramirez, 431 A.2d at 817; Russell v. DeWalt Prod. Corp., 614 A.2d 622, 629 (N.J. Super. Ct. App. Div. 1992); Pacius v. Thermtroll Corp., 611 A.2d 153, 156 (N.J. Super. Ct. Law Div. 1992); Rothstein v. Tennessee Gas Pipeline Co., 664 N.Y.S.2d 213, 219 (Sup. Ct. 1997); Barringer, supra note 2, at 1322. But see Green, supra note 8, at 22 (opining that "much of the expansion of liberal successor liability law appears grounded in a desire . . . to impose liability on successors qua successors").

29. Mettinger v. Globe Slicing Mach. Co., 709 A.2d 779, 785 (N.J. 1998); accord Rawlings v. D.M. Oliver, Inc., 159 Cal. Rptr. 119, 124 (Ct. App. 1979); Class v. American Roller Die Corp., 683 A.2d 595, 609 (N.J. Super. Ct. Law Div. 1996), rev'd on other grounds, 705 A.2d 390 (N.J. Super. Ct. App. Div. 1998); Brotherton v. Celotex Corp., 493 A.2d 1337, 1342 (N.J. Super. Ct. Law Div. 1985).

30. See Leo v. Kerr-McGee Chem. Corp., 37 F.3d 96, 99 (3d Cir. 1994) (applying New Jersey law and holding that the destruction of the injured party's remedy is a necessary prerequisite to placing liability on the successor); Ray v. Alad Corp., 560 P.2d 3, 10 (Cal. 1977) (finding that the acquisition of the predecessor corporation by the successor corporation had the effect of depriving the plaintiff of redress); Mettinger, 709 A.2d at 784 (stating that despite criticism from courts and commentators, this rationale is still convincing); Ramirez, 431 A.2d at 820 (noting that the plaintiffs potential remedy against the original manufacturer was destroyed by the sale); Dawejko v. Jorgensen Steel Co., 434 A.2d 106, 111 (Pa. Super. Ct. 1981 ) (holding that a factor in product line liability is whether the successor caused the predecessor to dissolve); 1 AMERICAN Law of PRODUCTS LIABILITY 3D sec 7.28, at 46 (Timothy E. Travers ed., rev. ed. 1990):

It is an essential condition precedent to imposition of liability on a successor manufacturer under the theory of product line continuation that there be elimination by the successor of an effective remedy against the predecessor, as where a successor purchases the predecessor's assets under an agreement requiring dissolution of the predecessor.

31. See Ray, 560 P.2d at 10; Dawejko, 434 A.2d at 111; I AMERICAN Law of PRODUCTS LIABILITY 3D, supra note 30, 7.28, at 46.

32. See Mettinger, 709 A.2d at 784; Ramirez, 431 A.2d at 821; see also Green, supra note 8, at 22 (characterizing the product line theory as an effort "to expand the ability of injured claimants to obtain compensation from some entity, regardless of its connection to the risk that caused the claimants' harm").

33. See Polius v. Clark Equip. Co., 802 F.2d 75, 83 (3d Cir. 1986); Turner v. Bituminous Cas. Co., 244 N.W.2d 873, 883-84 (Mich. 1976); Pelc v. Bendix Mach. Tool Corp., 314 N.W.2d 614, 618 (Mich. Ct. App. 1982); 63 AM. JUR. 2D Products Liability 132 (1997).

34. See Lacy v. Carrier Corp., 939 F. Supp. 375, 384 (E.D. Pa. 1996) (predicting that Pennsylvania, a state that uses the product line theory, would not find that the successor corporation had to destroy the plaintiff's remedy against the predecessor in order to be liable); Bussell v. DeWalt Prod., 614 A.2d 622, 632 (N.J. Super. CI. App. Div. 1992) (citing Pacius with approval); Pacius v. Thermtroll Corp., 611 A.2d 153, 156 (N.J. Super.

Ct. Law Div. 1992) (holding that the current manufacturer of the product line should be held liable for the injuries caused by a defective product manufactured by the predecessor regardless of the current manufacturer's actions); Goncalves v. Wire Tech. & Mach. Co., 601 A.2d 780, 783 (N.1. Super. Ct. Law Div. 1991 ) (finding that the fact that the successor corporation bought the predecessor in a bankruptcy proceeding had nothing to do with the predecessor's filing for bankruptcy and made no difference in determining liability, and that the successor could still be found liable for the predecessor's defective products); Wilkerson v. C.0. Porter Mach. Co., 567 A.2d 598, 599 (N.J. Super. Ct. Law Div. 1989) (agreeing with Goncalves that it is unimportant whether the sale was in bankruptcy or by contract).

35. See Nelson v. Tiffany Indus., 778 F.2d 533, 537-38 (9th Cir. 1985) (holding that under the law of California, a state that has adopted the product line theory, where the successor bought the assets of the predecessor in bankruptcy, the successor could not be held liable, despite the fact that the predecessor was no longer available for suit); In re Related Asbestos Cases, 578 F. Supp. 91, 93 (N.D. Cal. 1983) (holding that the successor cannot be liable unless it "caused-or at least contributed to-the plaintiffs inability to recover against the predecessor"); 1 AMERICAN Law of PRODUCTS LIABILITY 3D, supra note 30, 7.28, at 46 ("It is an essential condition to imposition of liability on a successor . . , that there be elimination by the successor of an effective remedy against the predecessor.") (emphasis added).

36. See Pacius, 611 A.2d at 156 (holding that it is the nonviability of the predecessor corporation that is important, not the reason why the predecessor is not viable); Lacy, 939 F. Supp. at 384; Bussell, 614 A.2d at 632; Goncalves, 601 A.2d at 783; Wilkerson, 567 A.2d at 599; Garcia v. Coe Mfg. Co., 933 P.2d 243, 250 (N.M. 1997) (explaining that strict liability focuses on the product and not on the successor's conduct).

37. See Cyr v. B. Offen & Co., 501 F.2d 1145, 1154 (1st Cir. 1974) (holding that the successor is in a better position than the consumer to gauge the risks and costs of a line of products); Ray v. Alad Corp., 560 P.2d 3, 10 (Cal. 1977) (holding that the successor had the opportunity to pass the cost of paying for the plaintiff's injuries to all consumers of the line of products that caused the injury); Rawlings v. D.M. Oliver, Inc., 159 Cal. Rptr. 119, 124 (Ct. App. 1979) (arguing that the cost of injuries from defective products should be spread over society); Mettinger, 709 A.2d at 790 (stating that the basic social policy in these kinds of cases is to spread the risk to the consuming public); Ramirez, 431 A.2d at 817 (holding that in strict liability cases, courts have decided that generally, a manufacturer is better able to predict risk than is the consumer); Garcia, 933 P.2d at 248 (making the successor's ability to spread the risk a factor to be balanced against the separate goal of the alienability of corporations); Rothstein v. Tennessee Gas Pipeline Co., 664 N.Y.S.2d 213, 219 (Sup. Ct. 1997) (stating that the basic social policy behind products liability is to put the costs on the manufacturer and the consuming public instead of the innocent injured party); Fish v. Amsted Indus., 376 N.W.2d 820, 831 (Wis. 1985) (Abrahamson, J., dissenting) (pointing out the importance of spreading the risk); Barringer, supra note 2, at t 323 (mentioning risk spreading as one of the reasons for the imposition of strict liability).

38. See Leo v. Kerr-McGee Chem. Corp., 37 F.3d 96, 100 (3d Cir. 1994) (stating that the successor has the ability to assume the predecessor's risk-spreading role); Ray, 560 P.2d at 10 (noting that the successor has virtually the same capacity to estimate the risks as the predecessor); Mettinger, 709 A.2d at 785; Ramirez, 431 A.2d at 822; Garcia, 933 P.2d at 248 (holding that "whether liability should be imposed depends on whether the

successor has the same ability as its predecessor to assess, control, and distribute the risks and costs of injuries caused by a product defect").

39. See Ramirez, 431 A.2d at 821, 822 (stating that harm should be made part of the cost of the product and that the successor now has the equipment of the manufacturing business and is the entity able to spread the cost).

40. See id. at 823; Class v. American Roller Die Corp., 683 A.2d 595, 604 (N.J. Super. Ct. Law Div. 1996), rev'd on other grounds, 705 A.2d 390 (N.J. Super. Ct. App. Div. 1998); Barringer, supra note 2, at 1322 (stating that courts have used the argument that the successor manufacturer is better able to insure against the risk of defective products than is the consumer).

41. See Leo, 37 F.3d at 101 (holding that the responsibility for defective products is a burden attached to the benefit of the predecessor's good will); Cyr, 501 F.2d at 1154 (pointing out that the successor corporation profits from the predecessor's good will); Ray, 560 P.2d at 11 (stating that the burden of liability should accompany the benefit of good will); Ramirez, 431 A.2d at 817, 822 (holding that there is a burden attached to the trade name and good will of an established manufacturing enterprise, and that the successor should take up this burden because it is exploiting the predecessor's accumulated good will and enjoying the patronage of a

customer base that is already in place); Garcia, 933 P.2d at 250 (stating that the successor's acquisition of the predecessor's good will is a factor to be balanced against the goal of corporate alienability); Rothstein, 664 N.Y.S.2d at 220-21 (listing the successor's benefit from the good will as one of the reasons why the product line theory should be used in New York); Dawejko v. Jorgensen Steel Co., 434 A.2d 106, 111 (Pa. Super. 1981) (citing the successor's purchase of the good will as a reason for adopting the product line theory); Martin v. Abbott Lab., 689 P.2d 368, 387-88 (Wash. 1984) (using this rationale to help justify the adoption of the product line theory in Washington); Barringer, supra note 2, at 1327-28 (arguing that liability should go along with the benefit of an established product).

42. See Ray, 560 P.2d at 11; Garcia, 933 P.2d at 249 (noting that the successor is in a position to assess the risks before buying); Ramirez, 431 A.2d at 822; Class, 683 A.2d at 604; Barringer, supra note 2, at 1326. 43. See Ray, 560 P.2d at 10-11 (arguing that placing liability on the successor will not result in a windfall

to the predecessor because the purchase price will affect the assumption of liability); Barringer, supra note 2, at 1326.

44. See Ray, 560 P.2d at 10 (finding that successor corporations are held out to the public as the same enterprise); Dawejko, 434 A.2d at 1 I 1 (giving the holding out rationale as a factor in the decision to adopt the

product line test); Martin, 689 P.2d at 387 (adopting the holding out rationale); 1 AMERICAN LAw of PRODUCTS LIABILITY 3n, supra note 30, 7.30, at 48 (stating that "representations by a successor to customers and potential customers that it is the same enterprise as its predecessor are key factors in imposing successor liability under the product line continuation theory"); Barringer, supra note 2, at 1326 (arguing that "by continuing the business of manufacturing the product, the successor makes itself the object of the uninterrupted expectations of the public").

45. See supra note 25.

46. See La Pollo v. General Elec. Cp., 664 F. Supp. 178, 183 (D. N.J. 1987) (noting that some courts have imposed liability on the successor even though the predecessor was still in business and that there is controversy on this issue); Pacius v. Thermtroll Corp., 611 A.2d 153, 156 (N.J. Super. Ct. Law Div. 1992) (stating that the current manufacturer of a product line should be held responsible for the defective products of the predecessor regardless of the viability of the predecessor); Phillips, supra note 9, at 271 (observing that New Jersey law has not insisted on the nonavailability of the predecessor as a precondition to suit).

47. See Leo v. Kerr-McGee Chem. Corp., 37 F.3d 96, 99 (3d Cir. 1994) (holding that "if the selling corporation remains a viable entity able to respond in damages to the injured party, a successor acquiring a product line will not be liable"); LaFountain v. Webb Indus. Corp., 951 F.2d 544, 547 (3d Cir. 1991 ) (holding that a lack of remedy against the original manufacturer is a requirement for the product line exception); 1 AMERICAN LAW OF PRODUCTS LIABILITY 3D, supra note 30, 7.28, at 46 (stating that any effective remedy against the predecessor must be eliminated before successor liability can be imposed); 63 AM. Jux. 2D Products Liability 135 (1997) (stating that loss of remedy against the predecessor is a prerequisite to the imposition of successor liability).

48. See Nieves v. Bruno Sherman Corp., 431 A.2d 826, 830 (N.J. 1981) (finding that the ultimate successor could be liable even though an intermediate successor was still in business and was also held liable); Lori J. Braender, Products Liability-Corporations-Intermediate and Successor Corporations Strictly Liable Under Product Line Standard, 12 SETON HALL L. REV. 327, 344 (1982) (noting that in Nieves, the ultimate successor was held liable even though a predecessor was a viable entity).

49. See Barringer, supra note 2, at 1331 (arguing that the doctrine of indemnity "could be applied in the odd case in which the manufacturer sheds the product line but retains its corporate entity for some other activity and the plaintiff sues the current maker of the product").

50. See RESTATEMENT (THIRD) OF TORTS; PRODUCTS LIABILITY 12 cmt. b (1997) (pointing out that often the successor is better off financially than the predecessor and that allowing suits against the successor can unjustifiably increase the amount of money available to the plaintiff).

51. See Rawlings v. D.M. Oliver, Inc., 159 Cal. Rptr. 119, 124 (Ct. App. 1979) (arguing that "[t]he general business continued by the manufacturer and its ability to spread those costs must be considered and not merely whether a specific line of products was discontinued"); Pacius, 611 A.2d at 158 (stating that whether or not the successor continues to manufacture the product line, the successor has benefited from the sale of the defective product because it acquired the predecessor's good will and ability to spread the cost of defective products).

52. See Saez v. S & S Corrugated Paper Mach. Co., 695 A.2d 740, 747 (N.J. Super. Ct. App. Div. 1997) (stating that the Pacius decision is in conflict with New Jersey law, which requires either that the successor continue to manufacture the product line or that one of the traditional exceptions be met in order for the successor to be liable, and that Pacius in effect imposes absolute liability for defective products on successors).

53. See Ray v. Alad Corp., 560 P.2d 3, 11 (Cal. 1977); Ramirez v. Amsted Indus.,Inc., 431 A.2d 81 l, 825 (N.1. 1981 ); Garcia v. Coe Mfg. Co., 933 P.2d 243, 249 (N.M. 1997); Rothstein v. Tennessee Gas Pipeline Co., 664 N.Y.S.2d 213, 220 (Sup. Ct. 1997) (noting that this is the first New York decision adopting the product line theory and that it is not the final word on the subject in New York); Dawejko v. Jorgensen Steel Co., 434 A.2d 106, 110 (Pa. Super. Ct. 1981 ); Martin v. Abbott Lab., 689 P.2d 368, 388 (Wash. 1984).

54. See, e.g., Rhynes v. Branick Mfg. Corp., 629 F.2d 409, 410 (5th Cir. 1980) (refusing to adopt the product line theory for Texas because it would be a "radical extension" of the law); Bernard v. Kee Mfg. Co., 409 So. 2d 1047, 1049 (Fla. 1982) (following the traditional rule); DeLapp v. Xtraman, Inc., 417 N.W.2d 219, 222 (Iowa 1987) (holding that the traditional rule is sound); Stratton v. Garvey Int'l Inc., 676 P.2d 1290, 1296 (Kan. Ct. App. 1984) (refusing to depart from the traditional rule); Nissen Corp. v. Miller, 594 A.2d 564, 573 (Md. 1991) (applying the traditional rule); Niccum v, Hydra-Tool Corp., 438 N.W.2d 96, 98 (Minn. 1989) (following the traditional approach); Chemical Design, Inc. v. American Standard, Inc., 847 S.W.2d 488, 491 (Mo. Ct. App. 1993) (noting that Missouri follows the standard rule); Jones v. Johnson Mach. & Press Co., 320

N.W.2d 481, 484 (Neb. 1982) (adopting the traditional rule); Downtowner, Inc. v. Acrometal Prod., 347 N.W.2d 118, 125 (N.D. 1984) (holding to the traditional rule); Goucher v. Parmac, Inc., 694 P.2d 953, 954 (Okla. Ct. App. 1984) (noting that Oklahoma follows the traditional rule); Hamaker v. Kenwel-Jackson Mach., 387 N.W.2d 515, 521 (S.D. 1986) (agreeing with the reasoning of North Dakota in Downtowner); Ostrowski v. Hydra-Tool Corp., 479 A.2d 126, 127 (Vt. 1984) (holding to the traditional rule); Fish v. Amsted Indus., 376 N.W.2d 820, 829 (Wis. 1985) (retaining the traditional rule). See also Mettinger v. Globe Slicing Mach. Co., 709 A.2d 779, 783 (N.1. 1998) (noting that most states adhere to the traditional rule but that New Jersey has no intention of abandoning the product line theory); Garcia, 933 P.2d at 249 (adopting the product line theory while acknowledging that most states have not); LOGGANS, supra note 9, 7.05 (noting that "the product line exception is a narrow one which has not been widely accepted by the courts" and that most courts follow the traditional rule with its four standard exceptions).

55. See Polius v. Clark Equip. Co., 802 F.2d 75, 81 (3d Cir. 1986) (noting that causation is fundamental to tort law); Bernard, 409 So. 2d at 1050; Gonzalez v. Rock Wool Eng'g &. Equip. Co., 453 N.E.2d ?92, 796 (Ill. Ct. App. 1983); Nissen, 594 A.2d at 569 (stating that the successor "bears no blame in bringing the product and the user together"); Guzman v. MRM/Elgin, 567 N.E.2d 929, 932 (Mass. 1991); Martin, 689 P.2d at 391 (Pearson, J., dissenting); RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY 12 cmt. b (1997) (pointing out that the successor did not make or distribute the defective product that caused harm); 1 AMERICAN Law of PRODUCTS LIABILITY 3D, supra note 9, 7.26, at 43; 63 AM. JUR. 2D Products Liability 134 (1997).

56. See Downtowner, 347 N.W.2d at 123; Guzman, 567 N.E.2d at 931; Fish, 376 N.W.2d at 826.

57. See Polius, 802 F.2d at 81; Aylward & Aylward, supra note 9, at 558; Green, supra note 8, at 33; Theresa A. Nuhn, Continuing Corporate Existence for Post-Dissolution Claims: The Defective Products

Dilemma, 13 PAC. L.1. 1227, 1242-43 (1982); Stephen H. Schulman, Commentary. Successor Corporation Liability and the Inadequacy of the Product Line Continuity Approach, 31 WAYNE L. REV. 135, 137 ( 1984).

58. See Polius, 802 F.2d at 81; Aylward & Aylward, supra note 9, at 558; Green, supra note 8, at 41 (advocating "a statute restricting the right of corporations to dissolve and distribute their assets to shareholders" so that money will be left for future liability claimants); Nuhn, supra note 57, at 1242-43.

59. See Green, supra note 8, at 38.

60. Id. at 31; see Simoneau v. South Bend Lathe, Inc., 543 A.2d 407, 409 (N.H. 1988); Phillips, supra note 9, at 252-53 ("The primary analytic flaw in the [product line] decisions has been the courts' failure to articulate valid bases for finding that the particular defendants should be susceptible to suit.").

61. See Gunman, 567 N.E.2d at 932; Aylward & Aylward, supra note 9, at 581; Green, supra note 8, at 29. 62. See Johnston v. Amsted Indus., 830 P.2d 1141, 1146 (Colo. Ct. App. 1992); Fish v. Amsted Indus., 376 N.W.2d 820, 828 (Wis. 1985); Tift v. Forage King Indus., 322 N.W.2d 14, 26 (Wis. 1982); 1 AMERICAN LAW OF PRODUCTS LIABILITY 3D, supra note 30, 7.30, at 49.

63. See Woody v. Combustion Eng'g, 463 F. Supp. 817, 821 (E.D. Tenn. 1978); Martin v. Abbott Lab., 689 P.2d 368, 392 (Wash. 1984) (Pearson, J., dissenting) (arguing that the successor loses the benefit of the good will when a products liability suit is filed); Phillips, supra note 9, at 254 (noting that an accident causes a loss of good will to the successor).

64. See Woody, 463 F. Supp. at 821 (stating that successor liability can turn "ordinary business transactions into traps for unwary successor corporations"); Flaugher v. Cone Automatic Mach. Co., 507 N.E.2d 331, 337 (Ohio 1987) (using the same reasoning as Woody); Aylward & Aylward, supra note 9, at 579 (noting that buyer corporations are often unaware of potential successor liability); Green, supra note 8, at 34 (pointing out that the dangerousness of many products is not known until years after their sale); Mark J. Roe, Mergers, Acquisitions, and Ton: A Comment an the Problem of Successor Corporation Liability, 70 VA. L. REV. 1559, 1568 (1984) ("The size of the liability will rarely be certain."); 1 AMERICAN LAW OF PRODUCTS LIABILITY 3D, supra note 30, 7.26, at 43 (noting that successors may not know about potential liability).

65. Johnston, 830 P.2d at 1144; Bernard v. Kee Mfg. Co., Inc., 409 So. 2d 1047, 1050 (Fla. 1982); Jones v. Johnson Mach. & Press Co., 320 N.W.2d 481, 484 (Neb. 1982); Ostrowski v. Hydra-Tool Corp., 479 A.2d 126, 127 (Vt. 1984); Fish, 376 N.W.2d at 827; Green, supra note 8, at 29.

66. See Johnston, 830 P.2d at 1144; Bernard, 409 So. 2d at 1050; Ostrowski, 479 A.2d at 127; Fish, 376 N.W.2d at 827; Tift, 322 N.W.2d at 26; Aylward & Aylward, supra note 9, at 580.

67. See Polius v. Clark Equip. Co., 802 F.2d 75, 82 (noting that products liability insurance is often difficult to obtain); Johnston, 830 P.2d at 1144; Bernard, 409 So. 2d at 1049; DeLapp v. Xtraman, Inc., 417 N.W.2d 219, 221 (Iowa 1987); Stratton v. Garvey Int'l, Inc., 676 P.2d 1290, 1297 (Kan. Ct. App, 1984); Nissen Corp. v. Miller, 594 A.2d 564, 570 (Md. 1991); Guzman v. MRM/Elgin, 567 N.E.2d 929, 932 (Mass. 1991); Niccum v. Hydra-Tool Corp., 438 N.W.2d 96, 100 (Minn. 1989) (stating that the product line theory may lead to economic annihilation for small businesses); Ostrowski, 479 A.2d at 127; Martin, 689 P.2d at 391 (Pearson, J., dissenting); Fish, 376 N.W.2d at 827; Tip?, 322 N.W.2d at 25; 1 AMERICAN LAW of PRODUCTS LIABLITY 3n, supra note 30, 7.26, at 43; 63 AM. JuR. 2D Products Liability 134 (1997) (noting that the product line theory represents an economic threat to small businesses).

68. See Polius, 802 F.2d at 83 (noting that the product line theory would probably lead to piecemeal sales); Woody, 463 F. Supp. at 821 (stating that the product line theory puts a burden on business transfers); Flaugher, 507 N.E.2d at 337; RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY 12 Cmt. b (1997) (stating that the product line theory will `impede the free alienability of corporate assets, thereby discouraging shareholder investment of capital and increasing social costs"); 1 AMERICAN LAW OF PRODUCTS LIABILITY 3D, supra note 30, 7.26, at 42; Green, supra note 8, at 32 (arguing that a dissolution-restricting statute "removes the incentive for piecemeal dismantling and incidentally avoids the loss to society of the value of the predecessor as a going concern"); 63 AM. JuR. 2D Products Liability 132 (1997).

69. 725 A.2d 697 (N.J. Super. Ct. App. Div. 1999). 70. Id. at 699.

71. Id. 72. Id. 73. Id. at 706. 74. Potwora, 725 A.2d at 706. 75. Id. at 699. 76. Id. at 700. 77. 889 F. Supp. 1445 (D. Kan. 1995). 78. Id. at 1449. 79. Id. at 1458. 80. Id. 81. Id. 82. Potwora ex rel. Gray v. Grip, 725 A.2d 697, 703 (N.J. Super. Ct. App. Div. 1999). 83. Id. 84. Id. 85. Id.

86. See Reed v. Armstrong Cork Co., 577 F. Supp. 246, 251 (E.D. Ark. 1983) (stating that even if the product line exception applied, the defendants were not successor corporations because they did not acquire substantially all of the manufacturing assets of the predecessor); Class v. American Roller Die Corp., 683 A.2d 595, 606 (N.J. Super. Ct. Law Div. 1996), rev'd on other grounds, 705 A.2d 390 (N.J. Super. Ct. App. Div. 1998) (holding that the successor must acquire substantially all of the manufacturing assets to be liable).

87. See Gibson v. Armstrong World Indus., 648 F. Supp. 1538, 1540-49 (D. Colo. 1986) (applying Pennsylvania law and holding that the successor was liable even though it bought only one division of the predecessor); Amader v. Pittsburgh Coming Corp., 546 F. Supp. 1033, 1036 (E.D. Pa. 1982) (holding that the successor need buy only the product line to be liable); Bussell v. DeWalt Prod. Corp., 614 A.2d 622, 631 (N.J. Super. Ct. App. Div. 1992) (finding the ultimate successor liable even though there had been an intermediate successor and the ultimate successor had not purchased all of the same assets that the intermediate successor bought from the predecessor).

88. See Lacy v. Carrier Corp., 939 F. Supp. 375, 380 (E.D. Pa. 1996) (noting that an intermediate successor could be liable whether or not the ultimate successor was viable); Nieves v. Bruno Sherman Corp., 431 A.2d 826, 831 (N.!. 1981) (noting that the rationale behind the product line theory is not just to find a single viable corporation on which to place liability and holding the intermediate successor, as well as the ultimate successor, liable); cf. Class, 683 A.2d at 606 (refusing to hold an intermediate successor liable where it did not continue the manufacture of the product line but merely bought, warehoused, and resold the assets of the original manufacturer). But see Braender, supra note 48, at 345 (disagreeing with the holding in Nieves and arguing that an intermediate successor should not be held liable because it is no longer securing the benefit from the good will of a product line and is no longer able to spread the loss to the purchasers of the product line).

89. Nieves, 431 A.2d at 831; accord Lacy, 939 F. Supp. at 382.

90. See supra text accompanying notes 34-36.

91. See Leo v. Kerr-McGee Chem. Corp., 37 F.3d 96, 99 (3d Cir. 1994); LaFountain v. Webb Indus., 951 F.2d 544, 547 (3d Cir. 1991).

92. See La Pollo v. General Elec. Co., 664 F. Supp. 178, 183 (D. N.J. 1987); Pacius v. Thermtroll Corp., 611 A.2d 153, 156 (N.J. Super. Ct. Law Div. 1992); Phillips, supra note 9, at 271 (observing that New Jersey has not insisted on the nonavailability of the predecessor as a precondition to suit).

93. Potwora ex rel. Gray v. Grip, 725 A.2d 697, 699 (N.J. Super. Ct. App. Div. 1999).

94. See Port Auth. of N.Y. & N.J. v. Arcadian Corp., 991 F. Supp. 390, 399 (D. N.J. 1997); Leslie v. United States, 986 F. Supp. 900, 907 (D. N.J. 1997); Zaza v. Marquess & Nell, Inc., 675 A.2d 620, 627 (N.J. 1996); Jurado v. Western Gear Works, 619 A.2d 1312, 1317 (N.1. 1993); Brown v. United States Stove Co., 484 A.2d 1234, 1239 (N.J. 1984); Soler v. Castmaster, Division of H.P.M. Corp., 484 A.2d 1225, 1229 (N.J. 1984); Michalko v. Cooke Color & Chem. Corp., 451 A.2d 179, 183 (N.J. 1982).

95. See Higgins v. E.I. DuPont de Nemours, Inc., 671 F. Supp. 1055, 1061 (D. Md. 1987), aff'd, 863 F.2d 1162 (4th Cir. 1988) (holding that where a paint manufacturer knew of the danger, a supplier of toxic chemicals used in the paint owed no duty to consumers); Jodway v. Kennametal, Inc., 525 N.W.2d 883, 890 (Mich. Ct. App. 1994) (holding that the employer, not the manufacturer, had the responsibility to warn employees of the dangers of cobalt dust from products produced by the manufacturer and used in the employer's business where the employer had full knowledge of the dangers); Phillips v. A.P. Green Refractories Co., 630 A.2d 874, 883 (Pa. Super. Ct. 1993), affd 665 A.2d 1167 (Pa. 1995) (applying the same level of responsibility as in Jodway to employers whose employees are exposed to silica dust).

96. See Willis v. Raymark Indus., Inc., 905 F.2d 793, 796-97 (4th Cir. 1990) (holding that under Virginia law a manufacturer could not escape liability when it offered no proof that the employer of the plaintiff employees knew of the danger from the manufacturer's product).