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Ch. 4
BY INDUSTRIAL SERVICES & PRODUCTS
statutes in a greuer numbct of situa-
tions."
MacPHERSON v. BUICK
MOTOR CO.
Coon ol .O.ppoat, ol Now Y"'.k. 1916.
217 N.Y. 382. lll N.E. lOW.
CARDOZO, J. The defendant is a
manufacturer of automobiles. It $Old ""
automobile to a rcbil dealer. The mail
de.ler resold to the p!t.intiff. While the
plaintiff was in the car it suddenly col·
lapsed. He was thrown out and injured.
One of the wheel! ...., made of defective
wood, and it> spokes crumbled into frag·
menu. The wheol was not made by the
defendant; it was bought from another
manufacturer. Thete is .,.idence, how·
ever; that its defects could bave been discovered by reasonable inspection, and
that inspection was omitted. There is no
claim that the defeodant knew of the d ..
feet and willfully coocealed it. • • •
The charge is one, not of fr.wd, but of
negligence. The question to be deter·
mined is whether the defeodant owed a
duty of care and vigila.11ce to any one but
the immediate purchas<or.
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The foundations of this branch of the
b.w, at least in this state. were Wd in
Thomas v. Winchester, 6 N.Y. ~97, ~7
Am.Dec. 455. A poison was f.tlody 4·
beled. The sale was mo.de to a druuut.
who in turn sold to • customer. The au·
tamer recovered damages from the Idler
who affixed the label. "The defeodanfs
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negligence," it was said, "put human hie
in imminent danger." A poison, falsely
labeled, is likely to injure any OM who
g<ts it. Beause the danger is to be fore·
seen, there is ~ duty to avoid the m1ury.
Cases were cited by way of iilusttation in
which manufacturers were not subject to
any duty irrespective of contract. The
distinction was said to be that their con·
duct, though negligent, was not likely to
result in injury to any one except the pur·
f
257
chaser. We are not required to say
whether the chance of injury was always
as remote as the distinction assumes.
Some of the illustratioos might be reject·
ed t<>-day. The principle of the distinc·
tion is, for present purpooes, the impor·
tant thing.
Thomas v. Winchester became quickly
•. landmark of the law. In the applic.·
t10n of it! principle there may, at times,
have been unceruinty or even error.
There has never in this state been doubt
of disavowal of the principle its<olf. The
chief cases are well known
•
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•.
These early ases suggest a narrow con·
struction of the rule. Ute< cases, how·
ever, evince a more liberal spirit. First
in importance is Devlin v. Smith, 89 N.
Y. 470, 42 A.tn.Rep. 311. The defeod·
ant, a contractor, built a scaffold for a
painter. The painter'> servant> were in·
jured. The <ontt:lctor was held liable.
He knew that the scaffold, if improperly
constructed, was a most dangerous trap.
He knew that it was to be used by the
workmen. He .,.., building it for that
very purpose. Building it for their use,
he owed them • duty, irrespective of his
contru:t with their lllllmf, to build it
with care.
From Devlin v. Smith we pass over in·
termediate ases and tum to the latest
case in this court in which Thomu v.
Winchester was followed. That case is
Statler v. Ray Wg. Co., 19~ N.Y. 478,
480, 88 N.E. 1063. The defendant
m>nufactured a large coffee urn. It was
installed in a restaurant. When
hcat~d,
the urn exploded and injured the plain·
tiff. We held that the manufacturer was
liable, We said that the urn "was of
such a character inberendy that, when ap·
plied to the purposes for which it was de·
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of great danger to many people if not
carefully and properly constructed."
It may be that Devlin v. Smith and
Statler v. Ray Wg. Co. have extended
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PHYSICAL HARMS
the rule of Thomas v. Winchester. If so,
this court iJ committed to the extension.
'The defenchnt argues that things immi·
nently dangerous to Jife are poisons, explosives, deadly weapons-things whose
notn'laJ function it is to injure or destroy.
But whatever the rule in Thomas v. Win·
chester may once have been, it has no
longer that restricted m=ing. A sa£.
fold (Devlin v. Smith, supra) is not in·
herently a destructive instrument. It be·
comes destructive only if imperfectly con·
sttucted. • • •
Devlin v. Smith was decided in 1882.
A year later a very similar case came be·
fore the Court of Appeal in England
(Heaven v. Pender, 11 Q.B.D. '03 ).
We find in the opinion of Brett, M. R.,
afterwards Lord Esher, the same concep·
tion of a duty, irrespectjve of contract,
imposed upon the manufacturer by the
law itself:
"Whenever one person supplies goods
or machinery, or the like, for the purpose
of their being used by aoother person un·
der such circum.sta.nces that every one of
ordinary sense would, if he thought, tee·
ognize at once that unless he used ordinary care and skill with regard to the
condition of the thing supplied, or the
mode of supplying it, there will be dan·
ger of injury to the person or property of
him for whose use the thing is supplied,
and who is to use it, a duty arises to use
ordinary care and skill as to the condition
or manner of supplying such thing.··
He then points out·that for a neglect
of such ordinary care or skill whereby injury happens, the appropriate remedy is
an action for negligence. The right to
enforce this Iiabihty is not to be confined
to the immediate buyer. The right, he
says, extends to the persons or class of
persons for whose use the thing is sup·
plied. It is enough that the goods
··would in all probability be used at once
• • • before a reasonable opportunity for discovering any defect which might
Part 1
exist,"" and th>t the thing supplied is of
such a nature "that a neg!ect of ordinary
care or skiU as to its condition or the
manner of supplying it would probably
cause danger to the person or property of
the person for whose use it was supplied,
and who was about to use it."
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On the
other hand, he would exdude a case ""in
which the goods are supplied under cir·
cumstances in which it would be a chance
by whom they would be used or whether
they would be used or not, or whether
they would be used before there would
probably be means of observing any defect, '" or where the goods are of such a
nature that .. a want of care or skill as to
their condition or the manner of suppi y·
ing them would not probably produce
danger of injury to person or property."'
What was said by Lord Esher in that case
did not command the full assent of his
associates. His opinion has been critized
as ""requiring every man to take affirma·
tive precautions to protect his neighhors
as well as to refrain from injuring them.'"
Bohlen, Affirmative Obligations in the
uw of Torts, 44 ll.m.Law Reg. (N.
S.) 341. It may not be an accurate exposition of the Jaw of Eoglaod. Perhaps it
may need some qualification even in our
own state. Like most attempts at comprehensive definitio11y it may involve erroes of inclusion and of exdusion. But
its tests and standards, at least in their
underlying principles, with whatever
qualification may be called for as they
are applied to varying conditions, are the
tests and standards of our law.
We hold, then, that the principle of
Thomas v. Winchester is not limited to
poisons, explosives, and things of like na·
ture, to things which in their normal operation are implements of destruction. If
the nature of a thing is such that it is reasonably certain to place life and limb in
peril when negligently made, it is then ·a
thing of danger. Its nature gives warn·
ing of the consequences to be expected.
If to the element of danger there is add·
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ed knowledge th2t the thing will be used
by persoos other than the purchaser, and
used without new tests, then, irrespe:tive
of contract, the manufacturer of this
thing of danger is under • duty to make
it carefully. That is as fa.r as we are re·
quired to go for the decision of this ase.
There must be knowledge of a danger,
not merely possible; but probable. It is
possible to use almost anything in a way
th2t will make it <Wlgerous if defective.
That is not enough to chuge the manu·
f.rnuer with a duty independeot of his
contract. Whether a given thing is dangerous may be sometimes a question for
the court and sometimes a question for
the jury. There must also be know ledge
that in the usual course of events the dm·
ger will be shared by others than the buy·
er. SU<h knowledge may often be inferred from the nature of the troruoction.
( But it is possible that even knowledge of
' the danger and of the use will not always
be enough. The proximity or rerooteness
of the rel>tion is a factor to be considered. We are dealing aow with the liability of the aunufactumr of the finished
product, who puts it on the market to be
used without inspection by his customers.
If he is negligent, where <Unger is to be
for=n, a liability will follow.
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We are not required, at this time, to
say that it is legitimate to go hack of the
manufacturer of the finished product and
hold the manufacturers of the compunent
parts. To make their negligence a cause
of imminent <Unger, an independent
cause must often intervene; the manufa.c·
turer of the finished product must also.
fail in his duty of inspection. It may be
that in those circumstances the negligence
of the earlier members of the series is too
remote to constitute, as to the ultimate
U$CI, an actionable wrong.
We leave
that question open. We shall have to
deal with it when it arises. The difficuJ.
ty which it suggests is not present in this
case. There is here no break in the chain
of cause and effect. In such circum·
259
stances, the presence of a known danger,
attendant upon a known use, makes vigi·
lance a duty. We have put aside the notion that the duty to safeguard life and
limb, when the consequences of negli·).
gence may be foreseen, grows out of con· ·
tract and nothing else. We have put the
source of the obligation where it ought to
be. We ha.ve put its source in the l:a.w.
From this survey of the decisions,
there thus eroerges a definition of the
duty of a =nufacturer which en2bles us
to measure this defendant's lability. Beyond all question, the nature of an automobile gives warning of probable danger
if its construction is defective. This automobile was designed to go ~0 miles an
hour. Unless its wheels were .sound and
strong, injury was almost certain. It was
as much a thlng of danger as a defective
engine for a railroad. The defendant
knew the danger. It knew also that the
car would be used by persons other than
the buyer. This was apparent from its
size; there were seats for three persons.
It was apparent also from the fact that
the buyer was a dealer in cars, who
bought to resell. The maker of this car
supplied it for the use of purchasers from
the dealer just as plainly as the contractor
in Devlin v. Smith supplied the scaffold
for use by the servants of the owner.
The dealer was indeed the one person of
whom it might be said with some ap·
proacb to certainty that by him the car
would not be used. Yet the defendant
would have us say that he was the one
person whom it was under a legal duty to
protect. The law does not lead us to so
inco~uent a conclusion.
Precedents
drawn from the days of travel by stage·
coach do not fit the conditions of travel
to-day. The principle that the danger
must be imminent does not change, but
the things subject to the principle do
change. They are whatever the needs of
life in a developing civilization require
there to be.
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PHYSICAL HARMS
In reuhing this conclusion, we do not
ignore the decisions to ~ contrary in
other jurisdictions. • • • Some of
them, at filst .sight inconsistent with our
condUlion, may be reconciled upon the
ground tlut the negligence was too re·
mote, and that another cause had inter~
vened. But even when they cannot be
reconciled, the difference is rather in the
application of the principle than in the
principle ioelf. • • •
In England the limits of the rule are
still uosettled. Winterbottom v. Wright,
10 M lie W. 109, is often cited.
• • •
There is codling anomalous in a rule
which impos<s upon A., who has con·
tra.cted with B., a duty to C. and D. and
others according a.s he knows or does not
know tlut the subject-matter of the con·
tra.ct is intended for their use. We may
find an analogy in the law which mea·
sutes the liability of landlords. If .A.
leases to B. a tumble-down house, he is
not liable, in the ~e of fraud, to B."s
guests who enter it and are injured.
This is because B. is then under the duty
to repair it, the lessor has the right to
suppose that he will fulfW that duty,
and, if he omits to do so, his guests must
look to him. But if A. leases a building
to be U5ed by the lessee at once as a place
of public entertainment, the rule is dif·
fercnt. There injury to persons other
than the lessee is to be foreseen, and
foresight of the consequences involves
the creation of a duty. Junkermann v.
Tilyou R. Co., 213 N.Y. 404, 108 N.E.
190, L.R.A.1915F, 700, and cases there
cited.
In this view of the defendant's liability
there is nothing inconsistent with the theory of liability on which the case was
tried. It is true that the court told the
jury that "an automobile is not an inher·
ently dangerous vehicle." The meaning,
however, is made plain by the context.
The meaning is that danger is not to be
Part 1
expected when the vehicle is well con·
strutted. The court left it to the jury to
say whether the defendant ought to have
foreseen that the car, if negligently con·
strutted, would become "imminently dan·
gerow." Subtle distinctions are drawn by
the defendant between things inherently
dangerous and things imminently danger·
ous, but the case does not tum upon these
verbal niceties. If danger was to be C:X·
pected as reasonably certain, there was a
duty of vigilance, and this whether you
call the danger inherent or imminent. In
varying forms that thought was put be·
fore the jury. • • •
We think the defendant was not absolved from a duty of inspection because
it buught the wheels from a reputable
manufacturer. It was not merely a dealer
in automobiles. It was a manufacturer
of automobiles. It was responsible for
the fmished product. It was not at liber·
ty to put the finished product on the mat·
ket without subjecting the component
parts to ordirmy and simple tests. Rich·
mend lie Danville R. R. Co. v. ElLett,
149 U.S. 266, 272, 13 S.Ct. 837, 37 L.
Ed. 728. Under the charge of the trial
judge nothing more was required of it.
The obligation to inspect must vary with
the nature of the thing to be inspected.
The more probable the danger the greater
the need of caution.
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The judgment should be affirmed,
with costs.
Opening the Courthouse Doors
Development of policy and doctrine
subsequent to MacPherson v. Buick has
not been uniform in the many jurisdic·
tions in the United States or elsewhere in
the English·sp<aking world. According·
ly, it is almost impossible to generalize
except with respect to the law of a partie·
ulat jurisdiction. Even then, the rate of
development has been so great, as the
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BY INDUSTRIAL SERVICES &. PRODUCTS
Ch. 4
cases in this chapter indiate, that predic·
tion is often difficult :at best. Beause of
its f:uniliarity to couru and attorneys, in
most litigation involving personal inju·
ries ""neglig=e"" is a favored theory of
action and fn. pleadm would rely solely
on other theories to its exclusion.
261
Brett's Heaven v. Pender principle, be:·
arne the touchstone of English tort law.
SUVADA v. WHITE MOTOR
co.
Su~me
The "MaePhenon doetrille"
Court ol Illinois, 1965.
210 N.E.2d 182.
In general see Restatetn<nt, Serond,
Torts §§ 394-395; 400-402 (1965):
Annas. 6 A.LR.3d 12, 91 (1966); 3
A.L.R.2d 1016 (1949); 80 A.LR.2d
702 ( 1961); 78 A.LR.2d 460 ( 1961);
18 A.LR.2d '94 (1961); 78 A.LR.2d
I \II ( 1960); Commmtaries: Prosser,
The fall of the Otadel (Strict Liability
to the Consumer) 50 Minn.LRev. 791
11966); Noel, Manufocturen' Liability
for Neglig=e, 33 Tenn.Ll!ev. 444
(1966) : Cowan, Some Policy Bases of
Products Liability, 17 Stan.LRev. 1977
(1965 ): James. Products Liability, 34
Tex.LRev. 44, 192 (1955 ); Wilson,
Product5 liWility, 4; Cal.LRev. 614, 809
11955 ): Bohlen. Liability of Manufac·
HOUSE, Justice.
• • •
Tbc:
plaintiffs Steven Suvada and John Koa<c·
nik are partners etJ82-ged in the business
of buying, selling and distributing mille
in Cook County. On February 11, 1957.
they pu:cha.sed a used reconditioned trac·
tor unit from defendant White Motor
Company. The brake .sptem for tb<
tractor was mmnfacturod by defendam
Bendrx-Westinghouse Automotive Air
Bralce Company and installed by White.
On June 24, 1960, the bta1ce Sf*"'
failed and the ttactor collided with a ClU·
cago Transit Authority bus CIIISing a
number of injuries to the bus passengers
and considerable chmage to the bus and
the plaintiffs' tzactor·trailer milk trud<.
Pmom Olha Than 'J'bm lm·
45 LQ.Rev. 343
On June 21, 1962, plaintiffs filed this
a<tion against While and Bendix to rccove: the rosts they incurred in repairing
their tr.actor-trailet unit, repairing tb< bus
and in their settlement of personal injury
turers to
mediate Vendees,
(1929).
The Breadth of Tort Ual>ilily
What would tb< result have been had
the plaintiffs theory of action been that
of breach of conriact? Suppose he could
have shown that he should have been
treated as a third party beneficiary;
would.he have =ered a jud~t for
d>mages? Was the court justified in
considering the '"infU1ity of actions'' and
.. no limits"" arguments? See generally
Kessler, Products Liability, 76 Yale LJ.
887 11967).
following Winterbottom v. Wright,
Heaven v. Pender, II Q.B. 503 (CA.
188;) with the famous opinion of Brett,
M. R. and Elliott v. Hall, 15 Q.B. 315
( 1885) were decided. Mudt later Don·
oghue v. Stevmson [1932] A.C. 562,
snail in bottle of ginger beer, employing
claims by the bus passengm. Included
in the chmages for settling the personal
injury claims are the costs of legal serv·
ices and investigation..
The trial court held that plaintiffs had
suted ca....., of action for chmages to
their t.ractor·trailer unit against White on
tb< basis of breach of implied wamnty
and negligence and against Bendix on the
basis of negligence. but dismissed the
counts for damage to the bus, per5011al
injury claims and expenses. On appeal
by the plaintiffs the Appellate Court held
that plaintiffs had stated causes of action
for aU elements of chmage pleaded
against White and Bendix on the basis of
breach of an implied warranty. (Suvad&
v:White Mo!or Co., 51 Ill.App.2d 318,
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000098
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A.DOA SYSTE.'I.t5lNTERS."TIONAL LTD. v.
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LTD.
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will onlv to that limited extent. It follows that the Mrs. G!onvilles
cross-appeal should be dismissed.
[56] I think that success bas been sufticiently divided that the
panies should bear their own costs here and below. Pursuont to
rule 57( 16) of the Supreme Court Rules. the executors and uustees
should have their 'osts payable out of the remainder in the house only.
Payment will have to be deferred until the death of Mrs. Ghmville.
The trustees should have the power in the interim to borrow funds to
pay the expenses related to the home and legal expenses against the
remainder interest.
Appeal allowed in part: cross-appeal dismissed.
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Th111 W111ekly L:r.w R111pons, Jun111 tu. no 1 •
1024
Laue J.
o. Y. B. (Su.... mc: Blnh Realsrratloa) (Fam.D.)
11!1171
The order is further that, until the child reaches the age of 18. the A
mother do not cause or permit him to be known by any other surname than
that of the father. without the written consent of the father or further order
-oL.the court. _(I .think iL apprcprhueJnJb~.>in:J!!!!M!!Il~-o!.l!l~-~_to make ..
this part of my order in these terms. which differ slightly from t.he wording
of role 92 (8) of the .Matrimonial Causes Rules 1973.)
FinaUy, I certify that the amngcments for the child arc satisfactory.
B
Ord~r
tJCcordingly.
Mothtr to pay fathtr'J com tmnJtd
at £500.
Solicitors: Jaques &. Co.: Wild. H•witJOn &. Shaw, Cambridr:•·
c
M. B. D.
[HOUSE OF LORDS]
ANNS AND OTHERS
• RESPONDENTS
0
AND
MERTON LONDON BOROUGH COUNCIL.
1977
APPELLANTS
Feb. 3, 7, 8, 9, 10, 14, 1$, 16, 17:
Lord Wilberforce, Lord Diplock,
May 12
Lord Simon of Glnisdolc, Lord Salmon
and Lord RuueU of Klllowcn
Ndgligence-Dury of can to whomJ-LoctJl
ins~t:t
tw.~hority-Pow~r
E
lo
buildittt /oundarionJ-AI/eiarionz that iru~r:ror ~ithef'
made no iMprclion or /ailed to make ~raprr lmptr:llon bt/an
11rantin11 dP~-Biock of malion•rui· bu/lr with /alent
deJect in fourtdDtioJu-.Subsequent occupien 3UUerinr dama,e
-Whethtr loctll tzuthorily liable for cllered non-in.rpection 01" F
tt<IIIIII<nt inJP<<tlon-Public Health Act 1936 (26 Geo. S &
I Edw. 8, c. 49)
Limitation of Act/oft-Time, computation of-Local amhorltyDtfective premi1~:1- Al/~garion of ncs:liRence in approving
fountlatioru a/ bloclc of mai.ronelle.r-Ar:tlon Jlart~d ~narc than
.ri;t ydarl after foundation:~ paued-Whlthrr .rtawr~..ba,.,~d
The respondents were lessees under Ions leases or seven 0
flats or maiJ.oneucs in a two-storey block in Wimbledon. The
owners or the block were the buUden and after their com...
plctlon in 1962 they sranted lonB 1....~: only two of !he
respondents were otiginal lessees. the othen having acquired
their leases by rwignmcnt at datos in 1967 and 19158. On
FebruarY 9, 1962, the then local authority po.ssed building
plilnS for the block which were deposited under the
byelaws. Subsequently that authority was superseded by the H
appc::Hzmts which took. over its predecessor's duLies and
liabilitie1. In February 1970, structural movemenu beaan
to occur in tho building ~nd 1hose resulted, inler alia, in
cracks In the walls and slopins or ftoon. On February iZ I,
1972 writs were issued aca.inst bolh the builders and the
appellants and later the separate proceedings were consolidated.
The cl01im$ against the: ll!"pelhants were for dilmagcs for
negligence in thllt the structural dllmilgc had been cilused
by the negligence of the appellants in aJiowinR the builders to
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