패스트 푸드로 인한 비만관련 질병에 대한 손해배상책임 (Liability of obesity claims caused by fast-food)

서지정보

· 발행기관 : 고려대학교 법학연구원
· 수록지 정보 : 고려법학 / 51호 / 373 ~ 406페이지
· 저자명 : 김민동

초록

Throughout most of human history, humanity faced a threat not
from obesity but from a clear and present danger of starvation. But
for the past several years lawsuits brought against fast-food chains by
plaintiffs suffering from obesity-related illnesses have been the subject
of considerable discussion in the popular press and of more discussion
by legal commentators.
The tort system can compensate for the lack of individual
knowledge by modifying corporate behavior in legislative ways and
nonlegislative ways.
In Pelman case we considered whether McDonald's marketing
behavior was fraudulent and deceptive business practicesa and was
negligent in failing to warn consumers of obesity-related illnesses
hazard. We found that advertisements urging consumers to eat the
products are mere puffery.
The open and obvious danger defense has also been rejected
where risk-utility tests are applicable. Under risk- utility test,
consumer knowledge and expectation wil be at most one factor in the
court's analysis. The risk-utility test is the better theory for fast-food
plaintiffs faced with an open-obvious danger defense as in Pelman.
A Product is defective in design when the foreseeable risks of
harm posed by the product could have been reduced or avoided by the
adoption of a reasonable alternative design and the omission of the
alternative design renders the product not safe. A broad range offactors may be considered in determining whether an alternative design
is reasonable and whether its omission renders a product not resonably
safe. Reduction in fat, in particular harmful fats, could be accomplished
in several ways. For example manufactors produce fast-food with a
change in cooking oils and in smaller portion sizes.
Fast-food product may be found defective in design, so as to
subject a manufacturer to strict liability for resulting injures, if the
plaintiff demonstrates that the product's design proximately caused his
injury and the defendent fails to establish, in light of the relevant
factors, that, on balance, the benefits of the challenged design outweigh
the risk of danger inherent in such design.

영어초록

Throughout most of human history, humanity faced a threat not
from obesity but from a clear and present danger of starvation. But
for the past several years lawsuits brought against fast-food chains by
plaintiffs suffering from obesity-related illnesses have been the subject
of considerable discussion in the popular press and of more discussion
by legal commentators.
The tort system can compensate for the lack of individual
knowledge by modifying corporate behavior in legislative ways and
nonlegislative ways.
In Pelman case we considered whether McDonald's marketing
behavior was fraudulent and deceptive business practicesa and was
negligent in failing to warn consumers of obesity-related illnesses
hazard. We found that advertisements urging consumers to eat the
products are mere puffery.
The open and obvious danger defense has also been rejected
where risk-utility tests are applicable. Under risk- utility test,
consumer knowledge and expectation wil be at most one factor in the
court's analysis. The risk-utility test is the better theory for fast-food
plaintiffs faced with an open-obvious danger defense as in Pelman.
A Product is defective in design when the foreseeable risks of
harm posed by the product could have been reduced or avoided by the
adoption of a reasonable alternative design and the omission of the
alternative design renders the product not safe. A broad range offactors may be considered in determining whether an alternative design
is reasonable and whether its omission renders a product not resonably
safe. Reduction in fat, in particular harmful fats, could be accomplished
in several ways. For example manufactors produce fast-food with a
change in cooking oils and in smaller portion sizes.
Fast-food product may be found defective in design, so as to
subject a manufacturer to strict liability for resulting injures, if the
plaintiff demonstrates that the product's design proximately caused his
injury and the defendent fails to establish, in light of the relevant
factors, that, on balance, the benefits of the challenged design outweigh
the risk of danger inherent in such design.

참고자료

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