- ' 1 . 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. r ,.... r 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 I ,.... r- '' 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 • • •. 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· I I '~ signed, it was liable to become a. source 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 - I l I { ) 258 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." t 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· I' ~ j I - -:; [J Il '_!~ ~ ..l ....·I 1- ~ i J -~ l 1 i ( !' :; I ...., I I ~ J -i ! .., l J ""'. t 00009~ t Ch. 4 ,... i '· r t. r !'"' ' L. !"" I ' ,.. L ,.. I I'"" : - ' BY INDUSTRIAL SERVICES & PRODUCTS 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. I 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. I i.l '"' I r ' ' ,... I ...i I I ' r 000096 260 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. i I -, 'I ~. ~ I ~ -; I "!' . -, ' j . 1 1 .~ !j ' n i• Ji • • • 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 ~ n l :-1 .l -; :-1 '. 'l 00009~~ i' i I ,.. r r r r r r t r r r r l. r r r1 1 . r r r r r 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, I \ car..t.•ILOL T-JhdEd.AC&-11 000098 r A.DOA SYSTE.'I.t5lNTERS."TIONAL LTD. v. VALCOM LTD. JSI 1 :l 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. n l 1 n I iJ I ! ! 000099 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 I I l OOOH:Hffi I '!