Chapter 9
Product Liability
§ A. History: The Rise and Fall of Privity
WINTERBOTTOM v. WRIGHT
[1842] 10 M.& W. 109, 152 Eng. Rep. 402
[Plaintiff was an employee of the post office.
He was injured when the wheel of a coach he was
riding fell off, allegedly because of the negligence
of the defendant in repairing coaches for the post
office. Plaintiff sued.]
Lord ABINGER, C.B.
I am clearly of opinion that the defendant is
entitled to our judgment. We ought not to permit a
doubt to rest upon this subject, for our doing so
might be the means of letting in upon us an infinity
of actions. This is an action of the first impression,
and it has been brought in spite of the precautions
which were taken, in the judgment of this Court in
the case of Levy v. Langridge, to obviate any
notion that such an action could be maintained. We
ought not to attempt to extend the principle of that
decision, which, although it has been cited in
support of this action, wholly fails as an authority
in its favour; for there the gun was bought for the
use of the son, the plaintiff in that action, who
could not make the bargain himself, but was really
and substantially the party contracting. H ere the
action is brought simply because the defendant was
a contractor with a third person; and it is
contended that thereupon he became liable to every
body who might use the carriage. If there had been
any ground for such an action, there certainly
would have been some precedent of it; but with the
exception of actions against innkeepers, and some
few other persons, no case of a similar nature has
occurred in practice. That is a strong circumstance,
and is of itself a great authority against its main-
tenance. It is however contended, that this contract
being made on the behalf of the public by the Postmaster-General, no action could be maintained
against him, and therefore the plaintiff must have
a remedy against the defendant. But that is by no
means a necessary consequence — he may be
remediless altogether. There is no privity of
contract between these parties; and if the plaintiff
can sue, every passenger, or even any person
passing along the road, who was injured by the
upsetting of the coach, might bring a similar
action. Unless we confine the operation of such
contr acts as this to the parties who entered into
them, the most absurd and outrageous
consequences, to which I can see no limit, would
ensue. Where a party becomes responsible to the
public, by undertaking a public duty, he is liable,
though the injury may have arisen from the
negligence of his servant or agent. So, in cases of
public nuisances, whether the act was done by the
party as a ser vant, or in any other capacity, you
are liable to an action at the suit of any person who
suffers. Those, however, are cases where the real
ground of the liability is the public duty, or the
commission of the public nuisance. There is also a
class of cases in which the law permits a contract
to be turned into a tort; but unless there has been
some public duty undertaken, or public nuisance
committed, they are all cases in which an action
might have been maintained upon the contract.
Thus, a carrier may be sued either in assumpsit or
case; but there is no instance in which a party, who
was not privy to the contract entered into with him,
can maintain any such action. The plaintiff in this
case could not have brought an action on the
contr act; if he could have done so, what would
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9-2
have been his situation, supposing the PostmasterGeneral had released the defendant? that would, at
all events, have defeated his claim altogether. By
permitting this action, we should be working this
injustice, that after the defendant had done every
thing to the satisfaction of his employer, and after
all matters between them had been adjusted, and all
accounts settled on the footing of their contract, we
should subject them to be ripped open by this
action of tort being brought against him.
***
ROLFE, B.
. . . The [alleged] duty [to the plaintiff],
therefore, is shown to have arisen solely from the
contract and the fallacy consists in the use of that
word ` duty.' If a duty to the Postmaster-General
be meant, that is true but if a duty to the plaintiff
be intended (and in that sense the word is evidently
used), there was none. This is one of those
unfortunate cases in which there certainly has been
damnum, but is it damnum absque injuria; it is, no
doubt, a hardship upon the plaintiff to be without
a remedy, but, by that consideration we ought not
to be influenced. Hard cases, it has been frequently
observed, are apt to introduce bad law.
Questions and Notes
1. Should the court have been more or less
inclined to permit a recovery if the victim in this
case had been a pedestrian — a "person passing
along the road"?
2. The story of how the rule in Winterbottom
was incorporated into American law is told in
Gregory, Trespass to Negligence to Absolute
Liability, 37 V A . L. R EV . 359 (1951), and O' Brian,
The History of Product Liability, 62 T UL . L. R EV .
313 (1988).
While the plaintiff was in the car it suddenly
collapsed. He was thrown out and injured. One of
the wheels was made of defective wood, and its
spokes crumbled into fragments. The wheel was
not made by the defendant; it was bought from
another manufacturer. There is evidence, however,
that its defects could have been discovered by
reasonable inspection, and that inspection was
omitted. There is no claim that the defendant knew
of the defect and willfully concealed it. The case,
in other words, is not brought within the rule of
Kuelling v. Lean Mfg. Co. , 183 N.Y. 78, 75 N.E.
1098, 2 L. R. A. (N. S.) 303, 111 Am. St. Rep. 691,
5 Ann. Cas. 124. The charge is one, not of fraud,
but of negligence. The question to be determined is
whether the defendant owed a duty of care and
vigilance to any one but the immediate purchaser.
The foundations of this branch of the law, at
least in this state, were laid in Thomas v.
Winchester, 6 N. Y. 397, 57 Am. D ec. 455. A
poison was falsely labeled. The sale was made to
a druggist, who in turn sold to a customer. The
customer recovered damages from the seller who
affixed the label. "The defendant' s negligence," it
was said, "put human life in imminent danger." A
poison, falsely labeled, is likely to injure any one
who gets it. Because the danger is to be foreseen,
there is a duty to avoid the injury. Cases were cited
by way of illustration in which manufacturers were
not subject to any duty irrespective of contract.
The distinction was said to be that their conduct,
though negligent, was not likely to result in injury
to any one except the purchaser. We are not
required to say whether the chance of injury was
always as remote as the distinction assumes. Some
of the illustrations might be rejected today. The
principle of the distinction is, for present purposes,
the important thing. Thomas v. Winchester became
quickly a landmark of the law. In the application of
its principle there may, at times, have been
uncertainty or even error. There has never in this
state been doubt or disavowal of the principle
itself.
***
MACPHERSON v. BUICK MOTOR CO.
217 N. Y. 382, 111 N. E. 1050 (1916)
CARDOZ O, J.
The defendant is a manufacturer of
automobiles. It sold an automobile to a retail
dealer. The retail dealer resold to the plaintiff.
MACPHERSON v. BUICK MOTOR CO.
These early cases suggest a narrow
construction of the rule. Later cases, however,
evince a more liberal spirit. First in importance is
Devlin v. Smith, 89 N.Y. 470, 42 Am. Rep. 311.
The defendant, a contractor, built a scaffold for a
painter. The painter' s servants were injured. The
contractor was held liable. He knew that the
PRODUCT LIABILITY
9-3
scaffold, if improperly constructed, was a most
dangerous trap. He knew that it was to be used by
the workmen. He was building it for that very
purpose. Building it for their use, he owed them a
duty, irrespective of his contract with their master,
to build it with care.
Fr om Devlin v. Smith we pass over
intermediate cases and turn to the latest case in this
court in which Thomas v. Winchester was
followed. That case is Statler v. Ray Mfg. Co., 195
N. Y. 478, 480, 88 N. E. 1063. The defendant
manufactured a large coffee urn. It was installed in
a restaurant. When heated, the urn exploded and
injured the plaintiff. We held that the manufacturer
was liable. We said that the urn "was of such a
character inherently that, when applied to the
purposes for which it was designed, it was liable to
become a source of gr eat danger to many people if
not carefully and properly constructed."
It may be that Devlin v. Smith and Statler v.
Ray Mfg. Co. have extended the rule of Thomas v.
Winchester. If so, this court is committed to the
extension. The defendant argues that things
imminently dangerous to life are poisons,
explosives, deadly weapons —things whose normal
function it is to injure or destroy. But whatever the
rule in Thomas v. Winchester may once have been,
it has no longer that restricted meaning. A scaffold
(Devlin v. Smith, supra) is not inherently a
destructive instrument. It becomes destructive only
if imperfectly constructed. A large coffee urn
(Statler v. Ray Mfg. Co., supra) may have within
itself, if negligently made, the potency of danger,
yet no one thinks of it as an implement whose
normal function is destruction.. ..
***
We hold, then, that the principle of Thomas v.
Winchester is not limited to poisons, explosives,
and things of like nature, 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 warning of the consequences to be
expected. If to the element of danger there is added
knowledge that the thing will be used by persons
other than the purchaser, and used without new
tests, then, irrespective of contract, the
manufacturer of this thing of danger is under a
duty to make it carefully. That is as far as we are
required to go for the decision of this case. There
must be knowledge of a danger, not merely
possible, but probable. It is possible to use almost
anything in a way that will make it danger ous if
defective. That is not enough to charge the
manufacturer with a duty independent of his
contr act. 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 knowledge that in the usual course of events the
danger will be shared by others than the buyer.
Such knowledge may often be inferred from the
nature of the transaction. But it is possible that
even knowledge of the danger and of the use will
not always be enough. The proximity or
remoteness of the relation is a factor to be
considered. We are dealing now with the liability
of the manufacturer of the finished product, who
puts it on the market to be used without inspection
by his customers. If he is negligent, where danger
is to be foreseen, a liability will follow.
. . . We have put aside the notion that the duty
to safeguard life and limb, when the consequences
of negligence may be foreseen, grows out of
contract and nothing else. We have put the source
of the obligation where it ought to be. We have put
its source in the law.
From this survey of the decisions, there thus
emerges a definition of the duty of a manufacturer
which enables us to measure this defendant' s
liability. Beyond all question, the nature of an
automobile gives warning of probable danger if its
construction is defective. This automobile was
designed to go 50 miles an hour. Unless its wheels
were sound and strong, injury was almost certain.
It was as much a thing 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
approach 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
inconsequent a conclusion. Precedents drawn from
MACPHERSON v. BUICK MOTOR CO.
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9-4
the days of travel by stagecoach do not fit the
conditions of travel today. 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 them to be.
HENNINGSEN v. BLOOMFIELD MOTORS,
INC.
32 N. J. 358, 161 A. 2d 69 (1960)
FRANC IS, J.
Plaintiff Claus H. Henningsen purchased a
Plymouth automobile, manufactured by defendant
Chrysler Corporation, from defendant Bloomfield
Motors, Inc. H is wife, plaintiff Helen Henningsen,
was injured while driving it and instituted suit
against both defendants to recover damages on
account of her injuries. Her husband joined in the
action seeking compensation for his consequential
losses. The complaint was predicated upon breach
of express and implied warranties and upon
negligence. At the trial the negligence counts were
dismissed by the court and the cause was submitted
to the jury for determination solely on the issues of
implied warranty of merchantability. Verdicts were
returned against both defendants and in favor of the
plaintiffs. Defendants appealed and plaintiffs crossappealed from the dismissal of their negligence
claim. The matter was certified by this court prior
to consideration in the Appellate Division.
The facts are not complicated, but a general
outline of them is necessary to an understanding of
the case.
On May 7, 1955 Mr. and Mrs. Henningsen
visited the place of business of Bloomfield Motors,
Inc. , an authorized D e Soto and Plymouth dealer,
to look at a Plymouth. They wanted to buy a car
and were considering a Ford or a Chevr olet as well
as a Plymouth. They wer e shown a Plymouth
which appealed to them and the purchase followed.
The record indicates that Mr. Henningsen intended
the car as a Mother ' s Day gift to his wife. He said
the intention was communicated to the dealer.
When the purchase order or contract was prepared
and presented, the husband executed it alone. His
wife did not join as a party.
The purchase order was a printed form of one
page. On the front it contained blanks to be filled
HENNINGSEN v. BLOOMFIELD MOTORS, INC.
in with a description of the automobile to be sold,
the various accessories to be included, and the
details of the financing. The particular car selected
was described as a 1955 Plymouth, Plaza "6",
Club Sedan. The type used in the printed parts of
the form became smaller in size, different in style,
and less readable toward the bottom where the line
for the purchaser' s signature was placed. The
smallest type on the page appears in the two
paragraphs, one of two and one-quarter lines and
the second of one and one-half lines, on which
great stress is laid by the defense in the case. These
two paragraphs are the least legible and the most
difficult to read in the instrument, but they are
most important in the evaluation of the rights of the
contesting parties. They do not attract attention and
there is nothing about the format which would
draw the reader' s eye to them. In fact, a studied
and concentrated effort would have to be made to
read them. De-emphasis seems the motive rather
than emphasis. More particularly, most of the
printing in the body of the order appears to be 12
point block type, and easy to read. In the short
paragraphs under discussion, however, the type
appears to be six point script and the print is solid,
that is, the lines are very close together.
The two paragraphs are:
The front and back of this Order comprise
the entire agreement affecting this
purchase and no other agreement or
understanding of any nature concerning
same has been made or entered into, or
will be recognized. I hereby certify that no
credit has been extended to me for the
purchase of this motor vehicle except as
appears in writing on the face of this
agreement.
I have read the matter printed on the back
hereof and agree to it as a part of this
order the same as if it were printed above
my signature. I certify that I am 21 years
of age, or older, and hereby acknowledge
receipt of a copy of this order.
On the right side of the form, immediately
below these clauses and immediately above the
signature line, and in 12 point block type, the
following appears:
CASH OR CERTIFIED CHEC K ONLY ON
DELIVERY .
PRODUCT LIABILITY
On the left side, just opposite and in the same
style type as the two quoted clauses, but in eight
point size, this statement is set out:
This agreement shall not become binding
upon the Dealer until approved by an
officer of the company.
The two latter statements are in the interest of
the dealer and obviously an effort is made to draw
attention to them.
The testimony of Claus Henningsen justifies
the conclusion that he did not read the two fine
print paragraphs referring to the back of the
purchase contract. And it is uncontradicted that no
one made any reference to them, or called them to
his attention. With respect to the matter appearing
on the back, it is likewise uncontradicted that he
did not read it and that no one called it to his
attention.
1
The reverse side of the contract contains 8 / 2
inches of fine print. It is not as small, however, as
the two critical paragraphs described above. The
page is headed "Conditions" and contains ten
separate paragraphs consisting of 65 lines in all.
The paragraphs do not have headnotes or margin
notes denoting their particular subject, as in the
case of the "Owner Service Certificate" to be
referred to later. In the seventh paragraph, about
two-thirds of the way down the page, the warranty,
which is the focal point of the case, is set forth. It
is as follows:
7. It is expressly agreed that there are no
warranties, express or implied, Made by
either the dealer or the manufacturer on
the motor vehicle, chassis, of par ts
furnished hereunder except as follows.
The manufacturer warrants each new
motor vehicle (including original
equipment placed thereon by the
manufacturer except tires), chassis or parts
manufactured by it to be free from defects
in material or workmanship under normal
use and service. Its obligation under this
warranty being limited to making good at
its factory any part or parts thereof which
shall, within ninety (90) days after
delivery of such vehicle to the original
purchaser or before such vehicle has been
driven 4, 000 miles, whichever event shall
9-5
first occur, be returned to it with
transportation charges prepaid and which
its examination shall disclose to its
satisfaction to have been thus defective;
this warranty being expressly in lieu of all
other warranties expressed or implied, and
all other obligations or liabilities on its
part, and it neither assumes nor authorizes
any other person to assume for it any
other liability in connection with the sale
of its vehicles.. .. (Emphasis ours.)
After the contract had been executed, plaintiffs
were told the car had to be ser viced and that it
would be ready in two days. According to the
dealer' s president, a number of cars were on hand
at the time; they had come in from the factory
about three or four weeks earlier and at least some
of them, including the one selected by the
Henningsens, were kept in the back of the shop
display purposes. When sold, plaintiffs' vehicle
was not "a serviced car, ready to go." The
testimony shows that Chrysler Corporation sends
from the factory to the dealer a "New Car
Preparation Service Guide" with each new
autom obile. The guide contains detailed
instructions as to what has to be done to prepare
the car for delivery. The dealer is told to "Use this
form as a guide to inspect and prepare this new
Plymouth for delivery. " It specifies 66 separate
items to be checked, tested, tightened or adjusted
in the course of the servicing, but dismantling the
vehicle or checking all of its internal parts is not
prescribed. The guide also calls for delivery of the
Owner Service Certificate with the car.
This certificate, which at least by inference is
authorized by Chrysler, was in the car when
released to Claus Henningsen on May 9, 1955. It
was not made part of the purchase contract, nor
was it shown to him prior to the consummation of
that agreement. The only reference to it therein is
that the dealer "agrees to promptly perform and
fulfill and terms and conditions of the owner
service policy." The Certificate contains a warranty
entitled "Automobile Manufacturers Association
Uniform Warranty." The provisions thereof are the
same as those set forth on the reverse side of the
purchase order, except that an additional paragraph
is added by which the dealer extends that warranty
to the purchaser in the same manner as if the word
"Dealer" appeared instead of the word
"Manufacturer."
HENNINGSEN v. BLOOMFIELD MOTORS, INC.
9-6
The new Plymouth was turned over to the
Henningsens on May 9, 1955. No proof was
adduced by the dealer to show precisely what was
done in the way of mechanical or road testing
beyond testimony that the manufacturer' s
instructions were probably followed. M r.
Henningsen drove it from the dealer' s place of
business in Bloomfield to their home in Keansburg.
On the trip nothing unusual appeared in the way in
which it operated. Thereafter, it was used for short
trips on paved streets about the town. It had no
servicing and no mishaps of any kind before the
event of May 19. That day, Mrs. Henningsen
drove to Asbury Park. On the way down and in
returning the car performed in normal fashion until
the accident occurred. She was proceeding north
on Route 36 in Highlands, New Jersey, at 20-22
miles per hour. The highway was paved and
smooth, and contained two lanes for northbound
travel. She was riding in the right-hand lane.
Suddenly she heard a loud noise "from the bottom,
by the hood." It "felt as if something cracked. "
The steering wheel spun in her hands; the car
veered sharply to the right and crashed into a
highway sign and a brick wall. No other vehicle
was in any way involved. A bus operator driving
in the left-hand lane testified that he observed
plaintiffs' car approaching in normal fashion in the
opposite direction; " all of a sudden [it] veered at
90 degrees . .. and right into this wall." As a result
of the impact, the front of the car was so badly
damaged that it was impossible to determine if any
of the parts of the steering wheel mechanism or
workmanship or assembly were defective or
improper prior to the accident. The condition was
such that the collision insurance car rier, after
inspection, declared the vehicle a total loss. It had
468 miles on the speedometer at the time.
The insurance carrier' s inspector and appraiser
of damaged cars, with 11 years of experience,
advanced the opinion, based on the history and his
examination, that something definitely went
"wrong from the steering wheel down to the front
wheels" and that the untoward happening must
have been due to mechanical defect or failure;
"something down there had to drop off or break
loose to cause the car" to act in the manner
described.
As has been indicated, the trial court felt that
the proof was not sufficient to make out prima
facie case as to the negligence of either the
HENNINGSEN v. BLOOMFIELD MOTORS, INC.
PRODUCT LIABILITY
manufacturer or the dealer. The case was given to
the jury, therefore, solely on the warranty theory,
with results favorable to the plaintiffs against both
defendants.
I
The Claim of Implied Warranty against the
Manufacturer
***
The terms of the warranty are a sad
commentary upon the automobile manufacturers'
marketing practices. Warranties developed in the
law in the interest of and to protect the ordinary
consumer who cannot be expected to have the
knowledge or capacity or even the opportunity to
make adequate inspection of mechanical
instrumentalities, like automobiles, and to decide
for himself whether they are reasonably fit for the
designed purpose.... But the ingenuity of the
Automobile Manufacturers Association, by means
of its standardized form, has metamorphosed the
warranty into a device to limit the maker' s liability.
.. . The language gave little and withdrew
much. In return for the delusive remedy of
replacement of defective parts at the factory, the
buyer is said to have accepted the exclusion of the
maker' s liability for personal injuries arising from
the breach of the warranty, and to have agreed to
the elimination of any other express or implied
warranty. An instinctively felt sense of justice cries
out against such a sharp bargain. ...
The form and the arrangement of its face, as
described above, certainly would cause the minds
of reasonable men to differ as to whether notice of
a yielding of basic rights stemming from the
relationship with the manufacturer was adequately
given. The words "warranty" or "limited warranty"
did not even appear in the fine print above the
place for signature, and a jury might well find that
the type of print itself was such as to promote lack
of attention rather than sharp scrutiny. The
inference from the facts is that Chrysler placed the
method of communicating its warranty to the
purchaser in the hands of the dealer. If either one
or both of them wished to make certain that
Henningsen became aware of that agreement and
its purported implications, neither the form of the
document nor the method of expressing the precise
nature of the obligation intended to be assumed
would have presented any difficulty.
But there is more than this. Assuming that a
PRODUCT LIABILITY
jury might find that the fine print referred to
reasonably served the objective of directing a
buyer' s attention to the warranty on the reverse
side, and, therefore, that he should be charged with
awareness of its language, can it be said that an
ordinary layman would realize what he was
relinquishing in return for what he was being
granted? Under the law, breach of war ranty against
defective parts or workmanship which caused
personal injuries would entitle a buyer to damages
even if due care were used in the manufacturing
process. Because of the great potential for harm if
the vehicle was defective, that right is the most
important and fundamental one arising from the
relationship. Difficulties so frequently encountered
in establishing negligence in manufacture in the
ordinary case make this manifest. 2 H ARPER &
JAMES, supra, §§ 28.14, 28. 15; P ROSSER , supra,
506. Any ordinar y layman of reasonable
intelligence, looking at the phraseology, might well
conclude that Chrysler was agreeing to replace
defective parts and perhaps replace anything that
went wrong because of defective workmanship
during the first 90 days or 4, 000 miles of
operation, but that he would not be entitled to a
new car. It is not unreasonable to believe that the
entire scheme being conveyed was a proposed
remedy for physical deficiencies in the car. In the
context of this warranty, only the abandonment of
all sense of justice would permit us to hold that, as
a matter of law, the phrase "its obligation under
this warranty being limited to making good at its
factory any part or parts thereof" signifies to an
ordinary reasonable person that he is relinquishing
any personal injury claim that might flow from the
use of a defective automobile. Such claims are
nowhere mentioned. The draftsmanship is
reflective of the care and skill of the Automobile
Manufacturers Association in undertaking to avoid
warranty obligations without drawing too much
attention to its effort in that regard. No one can
doubt that if the will to do so were present, the
ability to inform the buying public of the intention
to disclaim liability for injury claims arising from
breach of warranty would present no problem.
In this connection, attention is drawn to the
Plymouth Owner Certificate mentioned earlier.
Obviously, Chrysler is aware of it because the New
Car Preparation Service Guide sent from the
factory to the dealer directs that it be given to the
purchaser. That certificate contains a paragraph
9-7
called "Explanation of Warranty. " Its entire tenor
relates to replacement of defective parts. There is
nothing about it to stimulate the idea that the
intention of the warranty is to exclude personal
injury claims.
***
The task of the judiciary is to administer the
spirit as well as the letter of the law. On issues
such as the present one, part of that burden is to
protect the ordinary man against the loss of
important rights through what, in effect, is the
unilateral act of the manufacturer. The status of the
automobile industry is unique. M anufacturers are
few in number and strong in bargaining position.
In the matter of warranties on the sale of their
produ cts, the Automotive Manufacturers
Association has enabled them to present a united
front. From the standpoint of the purchaser, there
can be no arms length negotiating on the subject.
Because his capacity for bargaining is so grossly
unequal, the inexorable conclusion which follows
is that he is not permitted to bargain at all. H e must
take or leave the automobile on the warranty terms
dictated by the maker. He cannot turn to a
competitor for better security. Public policy is a
term not easily defined. Its significance varies as
the habits and needs of a people may vary. It is not
static and the field of application is an ever
increasing one. A contract, or a particular
provision therein, valid in one era may be wholly
opposed to the public policy of another. See
Collopy v. Newark Eye & Ear Infirmary, 27 N . J.
29, 39, 141 A. 2d 276 (1958). Courts keep in mind
the principle that the best interests of society
demand that persons should not be unnecessarily
restricted in their freedom to contract. But they do
not hesitate to declare void as against public policy
contractual provisions which clearly tend to the
injury of the public in some way. Hodnick v.
Fidelity Trust Co. , 96 Ind. App. 342, 183 N.E.
488 (App. Ct. 1932).
Public policy at a given time finds expression
in the Constitution, the statutory law and in judicial
decisions. In the area of sale of goods, the
legislative will has imposed an implied warranty of
merchantability as a general incident of sale of an
automobile by description. The war ranty does not
depend upon the affirmative intention of the
parties. It is a child of the law; it annexes itself to
the contract because of the very nature of the
transaction. Minneapolis Steel & Machinery Co. v.
HENNINGSEN v. BLOOMFIELD MOTORS, INC.
PRODUCT LIABILITY
9-8
Casey Land Agency, 51 N. D. 832, 201 N. W. 172
(Sup. Ct. 1924). The judicial process has
recognized a right to recover damages for personal
injuries arising from a breach of that warranty. The
disclaimer of the implied warranty and exclusion of
all obligations except those specifically assumed by
the express warranty signify a studied effort to
frustrate that protection. True, the Sales Act
authorizes agreements between buyer and seller
qualifying the warranty obligations. But quite
obviously the Legislature contemplated lawful
stipulations (which are determined by the
circumstances of a particular case) arrived at freely
by parties of relatively equal bargaining strength.
The lawmakers did not authorize the automobile
manufacturer to use its grossly disproportionate
bargaining power to relieve itself from liability and
to impose on the ordinary buyer, who in effect has
no real freedom of choice, the grave danger of
injury to himself and others that attends the sale of
such a dangerous instrumentality as a defectively
made automobile. In the framework of this case,
illuminated as it is by the facts and the many
decisions noted, we are of the opinion that
Chrysler' s attempted disclaimer of an implied
warranty of merchantability and of the obligations
arising therefrom is so inimical to the public good
as to compel an adjudication of its invalidity. See
57 Y ALE L. J. , supra, at pp. 1400-1404; proposed
Uniform Commercial Code, 1958 Official Text, §
202.
***
IV.
Proof of Breach of the Implied Warranty of
Merchantability.
***
Both defendants contend that since there was
no privity of contract between them and Mrs.
Henningsen, she cannot recover for breach of any
warranty made by either of them. On the facts, as
they were developed, we agree that she was not a
party to the purchase agreement. Faber v.
Creswick, 31 N. J. 234, 156 A. 2d 252 (1959). Her
right to maintain the action, therefore, depends
HENNINGSEN v. BLOOMFIELD MOTORS, INC.
upon whether she occupies such legal status
thereunder as to permit her to take advantage of a
breach of defendants' implied warranties.
For the most part the cases that have been
considered dealt with the right of the buyer or
consumer to maintain an action against the
manufacturer where the contract of sale was with
a dealer and the buyer had no contractual
relationship with the manufacturer. In the present
matter, the basic contractual relationship is
between Claus Henningsen, Chrysler, and
Bloomfield Motors, Inc. The precise issue
presented is whether Mrs. Henningsen, who is not
a party to their respective warranties, may claim
under them. In our judgment, the principles of
those cases and the supporting texts are just as
proximately applicable to her situation. We are
convinced that the cause of justice in this area of
the law can be served only by recognizing that she
is such a person who, in the reasonable
contemplation of the parties to the warranty, might
be expected to become a user of the automobile.
Accordingly, her lack of privity does not stand in
the way of prosecution of the injury suit against the
defendant Chrysler.
Questions and Notes
1. This case illustrates the difficulty of
conceptualizing products liability cases as both
contract and tort cases. Should the Henningsens be
required to state a cause of action in contract? If
they want to base their claim on tort law, can the
manufacturer force the case to be treated as a
contract case?
2. Warranty law (and contract law, of which it
was usually a component) was advantageous in
some respects for the plaintiff, but disadvantageous
in others. Before examining the cases that follow,
which adopt a tort analysis completely, see if you
can list the advantages and disadvantages of
warranty law from the consumer' s perspective.
PRODUCT LIABILITY
9-9
§ B. The Adoption of Strict Liability in Tort
ESCOLA v. COCA COLA BOTTLING
COMPANY OF FRESNO
24 Cal. 2d 453, 150 P. 2d 436 (1944)
GIBSON, Chief Justice
Plaintiff, a waitress in a restaurant, was
injured when a bottle of Coca Cola broke in her
hand. She alleged that defendant company, which
had bottled and delivered the alleged defective
bottle to her employer, was negligent in selling
"bottles containing said beverage which on account
of excessive pressure of gas or by reason of some
defect in the bottle was danger ous . .. and likely to
explode." This appeal is from a judgment upon a
jury verdict in favor of plaintiff.
Defendant' s driver delivered several cases of
Coca Cola to the restaurant, placing them on the
floor, one on top of the other, under and behind
the counter, where they remained at least thirty-six
hours. Immediately before the accident, plaintiff
picked up the top case and set it upon a nearby ice
cream cabinet in front of and about three feet from
the refrigerator. She then proceeded to take the
bottles from the case with her right hand, one at a
time, and put them into the refrigerator. Plaintiff
testified that after she had placed three bottles in
the refrigerator and had moved the fourth bottle
about 18 inches from the case "it exploded in my
hand." The bottle broke into two jagged pieces and
inflicted a deep five-inch cut, severing blood
vessels, nerves and muscles of the thumb and palm
of the hand.. ..
***
Many authorities state that the happening of the
accident does not speak for itself where it took
place some time after defendant had relinquished
control of the instrumentality causing the injury.
Under the more logical view, however, the
doctrine may be applied upon the theory that
defendant had control at the time of the alleged
negligent act, although not at the time of the
accident, provided plaintiff first proves that the
condition of the instrumentality had not been
changed after it left the defendant' s possession.
***
It is true that defendant presented evidence
tending to show that it exercised considerable
precaution by carefully regulating and checking the
pressure in the bottles and by making visual
inspections for defects in the glass at several stages
during the bottling process. It is well settled,
however, that when a defendant produces evidence
to rebut the inference of negligence which arises
upon application of the doctrine of res ipsa
loquitur, it is ordinarily a question of fact for the
jury to determine whether the inference has been
dispelled. Druzanich v. Criley, 19 Cal. 2d 439,
444, 122 P.2d 53; Michener v. Hutton, 203 Cal.
604, 610, 265 P. 238, 59 A. L. R. 480.
The judgment is affirmed.
SHENK, CURTIS, CARTER, and SCHAUER,
JJ., concurred.
TRAYNOR, Justice
I concur in the judgment, but I believe the
manufacturer' s negligence should no longer be
singled out as the basis of a plaintiff' s right to
recover in cases like the present one. In my
opinion it should now be recognized that a
manufacturer incurs an absolute liability when an
article that he has placed on the market, knowing
that it is to be used without inspection, proves to
have a defect that causes injury to human beings.
MacPherson v. Buick Motor Co. , 217 N. Y. 382,
111 N. E. 1050, L. R. A. 1916F, 696, Ann. Cas.
1916C, 440 established the principle, recognized
by this court, that irrespective of privity of
contract, the manufacturer is responsible for an
injury caused by such an article to any person who
comes in lawful contact with it. Sheward v. Virtue,
20 Cal. 2d 410, 126 P. 2d 345; Kalash v. Los
Angeles Ladder Co., 1 Cal. 2d 229, 34 P. 2d 481.
In these cases the source of the manufacturer' s
liability was his negligence in the manufacturing
process or in the inspection of component parts
supplied by others. Even if there is no negligence,
however, public policy demands that responsibility
be fixed wherever it will most effectively reduce
the hazards to life and health inherent in defective
products that reach the market. It is evident that the
manufacturer can anticipate some hazards and
guard against the recurrence of others, as the
public cannot. Those who suffer injury from
defective products are unprepared to meet its
consequences. The cost of an injury and the loss of
ESCOLA v. COCA COLA BOTTLING COMPANY OF FRESNO
PRODUCT LIABILITY
9-10
time or health may be an overwhelming misfortune
to the person injured, and a needless one, for the
risk of injury can be insured by the manufacturer
and distributed among the public as a cost of doing
business. It is to the public interest to discourage
the marketing of products having defects that are a
menace to the public. If such products nevertheless
find their way into the market it is to the public
interest to place the responsibility for whatever
injury they may cause upon the manufacturer,
who, even if he is not negligent in the manufacture
of the product, is responsible for its reaching the
market. However intermittently such injuries may
occur and however haphazardly they may strike,
the risk of their occurrence is a constant risk and a
general one. Against such a risk there should be
general and constant protection and the
manufacturer is best situated to afford such
protection.
The injury from a defective product does not
become a matter of indifference because the defect
arises from causes other than the negligence of the
manufacturer, such as negligence of a
submanufacturer of a component part whose
defects could not be revealed by inspection (see
Sheward v. Virtue, 20 Cal. 2d 410, 126 P. 2d 345;
O' Rourke v. Day & Night Water Heater Co., Ltd.,
31 Cal. App. 2d 364, 88 P.2d 191; Smith v.
Peerless Glass Co., 259 N.Y. 292, 181 N.E. 576),
or unknown causes that even by the device of res
ipsa loquitur cannot be classified as negligence of
the manufacturer. The inference of negligence may
be dispelled by an affir mative showing of proper
care. If the evidence against the fact inferred is
"clear, positive, uncontradicted, and of such a
nature that it can not rationally be disbelieved, the
court must instruct the jury that the nonexistence of
the fact has been established as a matter of law."
Blank v. Coffin, 20 Cal. 2d 457, 461, 126 P. 2d
868, 870. An injured person, however, is not
ordinar ily in a position to refute such evidence or
identify the cause of the defect, for he can hardly
be familiar with the manufacturing process as the
manufacturer himself is. In leaving it to the jury to
decide whether the inference has been dispelled,
regardless of the evidence against it, the negligence
rule approaches the rule of strict liability. It is
needlessly circuitous to make negligence the basis
of recovery and impose what is in reality liability
without negligence. If public policy demands that
a manufacturer of goods be responsible for their
quality regardless of negligence there is no reason
not to fix that responsibility openly.
***
Questions and Notes
1. What was the basis upon which the majority
affirmed liability?
2. What was Justice Traynor' s approach to
liability?
3. Which is the better approach?
GREENMAN v. YUBA POWER PRODUCTS
27 Cal. Rptr. 697, 377 P. 2d 897 (1963)
TRAYNOR, Justice
Plaintiff brought this action for damages
against the retailer and the manufacturer of a
Shopsmith, a combination power tool that could be
used as a saw, drill, and wood lathe. He saw a
Shopsmith demonstrated by the retailer and studied
a brochure prepared by the manufacturer. He
decided he wanted a Shopsmith for his home
workshop, and his wife bought and gave him one
for Christmas in 1955. In 1957 he bought the
necessary attachments to use the Shopsmith as a
lathe for turning a large piece of wood he wished
to make into a chalice. After he had worked on the
piece of wood several times without difficulty, it
suddenly flew out of the machine and struck him
on the forehead, inflicting serious injuries. About
ten and a half months later, he gave the retailer and
the manufacturer written notice of claimed
breaches of warranties and filed a complaint
against them alleging such breaches and
negligence.
After a trial before a jury, the court ruled that
there was no evidence that the retailer was
negligent or had breached any expr ess warranty
and that the manufacturer was not liable for the
breach of any implied warranty. Accordingly, it
submitted to the jury only the cause of action
alleging breach of implied warranties against the
retailer and the causes of action alleging negligence
and breach of expr ess warranties against the
manufacturer. The jury returned a verdict for the
ESCOLA v. COCA COLA BOTTLING COMPANY OF FRESNO
PRODUCT LIABILITY
retailer against plaintiff and for plaintiff against the
manufacturer in the amount of $65,000. The trial
court denied the manufacturer' s motion for a new
trial and entered judgment on the verdict. The
manufacturer and plaintiff appeal. Plaintiff seeks a
reversal of the part of the judgment in favor of the
retailer, however, only in the event that the part of
the judgment against the manufacturer is reversed.
Plaintiff introduced substantial evidence that
his injuries were caused by defective design and
construction of the Shopsmith. His expert witnesses
testified that inadequate set screws were used to
hold parts of the machine together so that normal
vibration caused the tailstock of the lathe to move
away from the piece of wood being turned
permitting it to fly out of the lathe. They also
testified that there were other more positive ways
of fastening the parts of the machine together, the
use of which would have prevented the accident.
The jury could therefore reasonably have
concluded that the manufacturer negligently
constructed the Shopsmith. The jury could also
reasonably have concluded that statements in the
manufacturer' s brochure were untrue, that they
constituted express warranties, 1 and that plaintiff' s
injuries were caused by their breach.
***
Moreover, to impose strict liability on the
manufacturer under the circumstances of this case,
it was not necessary for plaintiff to establish an
express warranty as defined in section 1732 of the
Civil Code. 2 A manufacturer is strictly liable in tort
when an article he places on the market, knowing
1
In this respect the trial court limited the jury to a
consideration of two statements in the manufacturer ' s
brochur e.
(1) W H E N SHOPSMITH IS IN HORIZONTAL P OSITION
Rugged construction of frame provides rigid support
from end to end. Heavy centerless-ground steel
tubing insurer s perfect alignment of components.
(2) SHOPSMITH maintains its accuracy because every
component has positive locks that hold adjustments
through rough or precision work.
2
"A ny affirmation of fact or any pr omise by the seller
relating to the goods is an express warranty if the natural
tendency of such affirmation or promise is to induce the
buyer to purchase the goods, and if the buyer pur chases
the goods relying thereon. No affirmation of the value of
the goods, nor any statement purporting to be a statement
of the seller' s opinion only shall be construed as a
warranty."
9-11
that it is to be used without inspection for defects,
proves to have a defect that causes injury to a
human being. Recognized first in the case of
unwholesome food products, such liability has now
been extended to a variety of other products that
create as great or greater hazards if defective.
Although in these cases strict liability has
usually been based on the theory of an express or
implied warranty running from the manufacturer to
the plaintiff, the abandonment of the requirement
of a contract between them, the recognition that the
liability is not assumed by agreement but imposed
by law (see e.g. , Graham v. Bottenfield's, Inc.,
176 Kan. 68, 269 P. 2d 413, 418; Rogers v. Toni
Home Permanent Co., 167 Ohio St. 244, 147
N. E. 2d 612, 614, 75 A.L.R.2d 103; Decker &
Sons, Inc. v. Capps, 139 Tex. 609, 617, 164
S.W.2d 828, 142 A. L. R. 1479), and the refusal to
permit the manufacturer to define the scope of its
own responsibility for defective products
(Henningsen v. Bloomfield Motors, Inc., 32 N . J.
358, 161 A.2d 69, 84-96; General Motors Corp. v.
Dodson, 47 Tenn. App. 438, 338 S.W.2d 655,
658-661; State Farm Mut. Auto. Ins. Co. v.
Anderson-Weber, Inc., 252 Iowa 1289, 110
N. W. 2d 449, 455-456; Pabon v. Hackensack Auto
Sales, Inc., 63 N.J. Super. 476, 164 A. 2d 773,
778; Linn v. Radio Center Delicatessen, 169 Misc.
879, 9 N. Y. S.2d 110, 112) make clear that the
liability is not one governed by the law of contract
warranties but by the law of strict liability in tort.
Accordingly, rules defining and governing
warranties that were developed to meet the needs
of commercial transactions cannot properly be
invoked to govern the manufacturer' s liability to
those injured by their defective products unless
those rules also serve the purposes for which such
liability is imposed.
We need not recanvass the reasons for
imposing strict liability on the manufacturer. They
have been fully articulated in the cases cited above.
(See also 2 H ARPER AND JAMES, T ORTS, §§
28.15-28, 16, pp. 1569-1574; Prosser, Strict
Liability to the Consumer, 69 Y ALE L. J. 1099;
Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453,
461, 150 P. 2d 436, concurring opinion.) The
purpose of such liability is to insure that the costs
of injuries resulting from defective products are
borne by the manufacturers that put such products
on the market rather than by the injured persons
who are powerless to protect themselves. Sales
GREENMAN v. YUBA POW ER PRODUCTS
PRODUCT LIABILITY
9-12
warranties serve this purpose fitfully at best. (See
Prosser, Strict Liability to the Consumer, 69 Y ALE
L. J. 1099, 1124-1134.) In the present case, for
example, plaintiff was able to plead and prove an
express warranty only because he read and relied
on the representations of the Shopsmith' s
ruggedness contained in the manufacturer' s
brochure. Implicit in the machine' s presence on the
market, however, was a representation that it
would safely do the jobs for which it was built.
Under these circumstances, it should not be
contr olling whether plaintiff selected the machine
because of the statements in the brochure, or
because of the machine' s own appearance of
excellence that belied the defect lurking beneath the
surface, or because he merely assumed that it
would safely do the jobs it was built to do. It
should not controlling whether the details of the
sales from manufacturer to retailer and from
retailer to plaintiff' s wife were such that one or
more of the implied warranties of the sales act
arose. (Civ. Code § 1735. ) "The remedies of
injured consumers ought not to be made to depend
upon the intricacies of the law of sales." (Ketterer
v. Armour & Co., D.C., 200 F. 322, 323; Klein v.
Duchess Sandwich which Co. , 14 Cal. 2d 272,
282, 93 P. 2d 799.) To establish the manufacturer' s
liability it was sufficient that plaintiff proved that
he was injured while using the Shopsmith in a way
it was intended to be used as a result of a defect in
design and manufacture of which plaintiff was not
aware that made the Shopsmith unsafe for its
intended use.
The manufacturer contends that the trial court
erred in refusing to give three instructions
requested by it. It appears from the record,
however, that the substance of two of the requested
instructions was adequately covered by the
instructions given and that the third instruction was
not supported by the evidence.
The judgment is affirmed.
GIBSON, C.J. , and SCHAUER, McCOMB,
PETERS, TOBRINER and PEEK, JJ., concur.
PHILLIPS v. KIMWOOD MACHINE CO.
Questions and Notes
1. The R ESTATEMENT (2D ), T ORTS, provides:
§ 402A. Special Liability of Seller of Product
for Physical Harm to User or Consumer
(1) One who sells any product in a
defective condition unreasonably
dangerous to the user or consumer or to
his property is subject to liability for
physical harm thereby caused to the
ultimate user or consumer, or to his
proper ty, if
(a) the seller is engaged in the
business of selling such a product, and
(b) it is expected to and does reach the
user or consumer without substantial
change in the condition in which it is
sold.
(2) The rule stated in Subsection (1)
applies although
(a) the seller has exercised all possible
care in the preparation and sale of his
product, and
(b) the user or consumer has not
bought the product from or entered
into any contractual relation with the
seller.
PHILLIPS v. KIMWOOD MACHINE CO.
269 Or. 485, 525 P. 2d 1033 (1974)
HOLMAN , Justice
Plaintiff was injured while feeding fiberboard
into a sanding machine during his employment with
Pope and Talbot, a wood products manufacturer.
The sanding machine had been purchased by Pope
and Talbot from defendant. Plaintiff brought this
action on a products liability theory, contending the
sanding machine was unreasonably dangerous by
virtue of defective design. At the completion of the
testimony, defendant' s motion for a directed
verdict was granted and plaintiff appealed.
As is required in such a situation, the evidence
is recounted in a manner most favorable to the
plaintiff. The machine in question was a six-headed
sander. Each sanding head was a rapidly moving
PRODUCT LIABILITY
belt which revolved in the direction opposite to that
which the pieces of fiberboard moved through the
machine. Three of the heads sanded the top of the
fiberboard sheet and three sanded the bottom. The
top half of the machine could be raised or lowered
depending upon the thickness of the fiberboar d to
be sanded. The bottom half of the machine had
powered rollers which moved the fiberboard
through the machine as the fiberboard was being
sanded. The top half of the machine had pinch
rolls, not powered, which, when pressed down on
the fiberboard by use of springs, kept the sanding
heads from for cefully rejecting it from the
machine.
On the day of the accident plaintiff was
engaged in feeding the sheets of fiberboard into the
sander. Because of the defective operation of a
press, a large group of sheets of extra thickness
was received for sanding. These sheets could not
be inserted into the machine as it was set, so the
top half of the sander was adjusted upwards to
leave a greater space between the top and bottom
halves to accommodate the extra thick fiberboard
sheets. During the sanding of the extra thick
sheets, a thin sheet of fiberboard, which had
become mixed with the lot, was inserted into the
machine. The pressure exerted by the pinch rolls in
the top half of the machine was insufficient to
counteract the pressure which the sanding belts
were exerting upon the thin sheet of fiberboard
and, as a result, the machine regurgitated the piece
of fiberboar d back at plaintiff, hitting him in the
abdomen and causing him the injuries for which he
now seeks compensation.
Plaintiff asserts in his complaint that the
machine was defective in its design and
unreasonably dangerous because (1) " it . .. could
not be operated in the manner and for the purpose
for which it was manufactured and sold without
throwing back towards the operator panels of
material being sanded.. .." and (2) "it did not . . .
contain . . . any guards, catches, shields, barricades
or similar devices to protect the operator of said
machine from being struck by panels of material
thrown back out of the sanding machine...." The
two allegations assert substantially the same thing,
the first one in general terms, and the second one
in particular terms. In effect, they allege the
machine was defective and was unreasonably
dangerous because there were no safety devices to
protect the person feeding the machine from the
9-13
regurgitation of sheets of fiberboard.
While we do not here attempt to recount all of
the testimony presented by plaintiff concerning the
defective design of the machine, there was
evidence from which the jury could find that at a
relatively small expense there could have been built
into, or subsequently installed on, the machine a
line of metal teeth which would point in the
direction that the fiberboard progresses through the
machine and which would press lightly against the
sheet but which, in case of attempted regurgitation,
would be jammed into it, thus stopping its
backward motion. The evidence also showed that
after the accident such teeth were installed upon the
machine for that purpose by Pope and Talbot,
whereupon subsequent regur gitations of thin
fiberboard sheets were prevented while the
efficiency of the machine was maintained. There
was also evidence that defendant makes smaller
sanders which usually are manually fed and on
which there is such a safety It was shown that the
machine in question was built for use with an
automatic feeder and that the one installed at Pope
and Talbot is the only six-headed sander
manufactured by defendant which is manually fed.
There also was testimony that at the time of the
purchase by Pope and Talbot, defendant had
automatic feeders for sale but that Pope and Talbot
did not purchase or show any interest in such a
feeder. Pope and Talbot furnished a feeding device
of their own manufacture for the machine which
was partially automatic and partially manual but
which, the jury could find, at times placed an
employee in the way of regurgitated sheets.
There was testimony that at the time
defendant' s employee inspected the installation of
the machine purchased by Pope and Talbot, which
inspection was required by their contract, the
inspecting employee became aware that the
machine was being manually fed. There was no
testimony of any warning given by defendant of the
danger concerning regurgitated sheets to a person
manually feeding the machine. Neither was there
any evidence that Pope and Talbot was told that the
machine was built for use with a fully automatic
feeder and that it was not to be fed manually, nor
was the recommendation made to plaintiff' s
employer that if the machine was to be used
without a fully automatic feeder, some sort of
safety device should be used for the protection of
anyone who was manually feeding the machine.
PHILLIPS v. KIMWOOD MACHINE CO.
PRODUCT LIABILITY
9-14
There was evidence that one of Pope and Talbot' s
representatives was told that the top of the machine
should not be raised sanding was taking place, but
there was no evidence of the danger from doing so
ever being mentioned.
Defendant contends there is no proper
assignment of error because, instead of being
designated as an assignment of error, the claim that
the trial court should not have granted a directed
verdict is designated as an issue on appeal. Because
plaintiff' s contention upon appeal is clearly
evident, we choose in this case to overlook the
formal defects in his opening brief which have
somewhat been alleviated by his reply brief.
In defense of its judgment based upon a
directed verdict, defendant contends there was no
proof of a defect in the product, and therefore strict
liability should not apply. This court and other
cour ts continue to flounder while attempting to
determine how one decides whether a product is
"in a defective condition unreasonably dangerous
to the user." 1 It has been recognized that
unreasonably dangerous defects in products come
from two principal sources: (1) mismanufacture
and (2) faulty design. 2 Mismanufacture is relatively
simple to identify because the item in question is
capable of being compared with similar articles
made by the same manufacturer. However,
whether the mismanufactured article is danger ously
defective because of the flaw is sometimes difficult
to ascertain because not every such flaw which
causes injury makes the article danger ously
defective. 3
1
2 R EST A T E M E N T (SE C ON D )
(1965).
2
Wade, On the Nature of Strict Tort Liability for Products,
44 M ISS. L. J. 825, 830 (1973) (including failure to warn
as a design defect).
3
The California Supreme Court recognized this problem
and attempted to eliminate it by requiring only a defect
that causes injury, and not an unreasonably dangerous
defect. In Cronin v. J. B. E. Olson Corp., 8 Cal. 3d 121,
104 Cal. Rptr. 433, 501 P. 2d 1153 (1972), the court felt
that requiring proof of an unreasonably dangerous defect
would put an additional burden on plaintiff which the
court deemed improper. We, however, feel that regardless
of whether the term used is "defective," as in Cronin, or
"defective condition unreasonably dangerous, " as in T H E
R E ST A TE M E N T, or " dangerously defective, " as used here,
or "not duly safe," as used by Professor Wade, the same
(continued.. . )
OF
The problem with strict liability of products
has been one of limitation. 4 No one wants absolute
liability where all the article has to do is to cause
injury. To impose liability there has to be
something about the article which makes it
dangerously defective without regard to whether
the manufacturer was or was not at fault for such
condition. A test for unreasonable danger is
therefore vital. A dangerously defective article
would be one which a reasonable person would not
put into the stream of commerce if he had
knowledge of its harmful character. 5 The test,
therefore, is whether the seller would be negligent
if he sold the article knowing of the risk involved. 6
Strict liability imposed what amounts to
constructive knowledge of the condition of the
product.
3
(. . . continued)
considerations will necessarily be utilized in fixing
liability on sellers; and, therefore, the supposedly
different standards will come ultimately to the same
conclusion. See Wade, Strict Tort Liability of
Manufacturers, 19 SW . L. J. 5, 14-15 (1965); Wade,
supra note 2.
4
Cf. Markle v. Mulholland' s, Inc. , 265 Or. 259, 266, 509
P. 2d 529 (1973). Holford, The Limits of Strict Liability
for Product Design and Manufacture, 52 T EX . L. R EV . 81
(1973).
5
See Borel v. Fibreboard Paper Products Corp., 493 F. 2d
1076, 1088 (5th Cir. 1973); Welch v. Outboard Marine
Corp. , 481 F.2d 252, 254 (5th Cir. 1973); Helene Curtis
Industries, Inc. v. Pruitt, 385 F.2d 841, 850 (5th Cir.
1967), cert. denied, 391 U. S. 913, 88 S. Ct. 1806, 20 L.
Ed. 2d 652 (1968); Olsen v. Royal Metals Corporation,
392 F. 2d 116, 119 (5th Cir. 1968); Dorsey v. Yoder, 331
F. Supp. 753, 759-760 (E.D. Pa. 1971). aff' d, 474 F. 2d
1339 (3 Cir. 1973). See generally, P. Keeton,
Manufacturer' s Liability: The Meaning of "Defect" in the
Manufacture and Design of Products, 20 SYRACUSE L.
R EV . 559, 568 (1969); P. Keeton, Products Liability —
Inadequacy of Information, 48 T EX . L. R EV . 398, 403-404
(1970); Wade, Strict Tort Liability of Manufacturers, 19
SW . L. J. 5, 15-16 (1965).
6
Cf. Welch v. Outboard Marine Corp., 481 F. 2d 252, 254
(5th Cir. 1973). See generally, W ade, supra note 2, at
834-835; P. Keeton, Products Liability — Some
Observations About Allocation of Risks, 64 M I CH . L. R EV .
1329, 1335 (1966). The W ade and Keeton formulations of
the standard appear to be identical except that Keeton
would impute the knowledge of dangers at time of trial to
the manufacturer, while Wade would impute only the
knowledge existing at the time the product was sold.
Compare P. Keeton, Product Liability and the Meaning of
Defect, 5 ST . M ARY ' S L. J. 30, 38 (1973), with Wade,
supra note 3, at 15, and Wade, supra note 2, at 834.
T ORTS § 402A, at 347
PHILLIPS v. KIMWOOD MACHINE CO.
PRODUCT LIABILITY
On the surface such a test would seem to be
different than the test of 2 RESTATEMENT
(SECOND ) OF T ORTS § 402A, Comment I. , of
"dangerous to an extent beyond that which would
be contemplated by the ordinary consumer who
purchases it." This court has used this test in the
past. 7 These are not necessarily different standards,
however. As stated in Welch v. Outboard Marine
Corp., 8 where the court affirmed an instruction
containing both standards:
We see no necessary inconsistency
between a seller-oriented standard and a
user-oriented standard when, as here, each
turns on foreseeable risks. They are two
sides of the same standard. A product is
defective and unreasonably dangerous
when a reasonable seller would not sell the
product if he knew of the risk involved or
if the risks are greater than a reasonable
buyer would expect.
To elucidate this point further, we feel that the
two standards are the same because a seller acting
reasonably would be selling the same product
which a reasonable consumer believes he is
purchasing. That is to say, a manufacturer who
would be negligent in marketing a given product,
considering its risks, would necessarily be
marketing a product which fell below the
reasonable expectations of consumers who
purchase it. The foreseeable uses to which a
product could be put would be the same in the
minds of both the seller and the buyer unless one
of the parties was not acting reasonably. The
advantage of describing a dangerous defect in the
manner of Wade and Keeton is that it preserves the
use of familiar terms and thought processes with
which courts, lawyers, and jurors customarily deal.
While apparently judging the seller' s conduct,
the test set out above would actually be a
characterization of the product by a jury. If the
manufacturer was not acting reasonably in selling
the product, knowing of the risks involved, then
the product would be dangerously defective when
sold and the manufacturer would be subject to
7
8
See Markle v. Mulholland' s, Inc. , 265 Or. 259, 266, 509
P. 2d 529 (1973); Cornelius v. Bay Motors, Inc. , 258 Or.
564, 572, 484 P.2d 299, 54 A.L. R.3 D 340 (1971).
481 F. 2d 252, 254 (5th Cir . 1973).
9-15
liability.
In the case of a product which is claimed to be
dangerously defective because of misdesign, the
process is not so easy as in the case of
mismanufacture. All the products made to that
design are the same. The question of whether the
design is unreasonably dangerous can be
determined only by taking into consideration the
surrounding circumstances and knowledge at the
time the article was sold, and determining
therefrom whether a reasonably prudent
manufacturer would have so designed and sold the
article in question had he known of the risk
involved which injured plaintiff. The issue has
been raised in some courts concerning whether, in
this context, there is any distinction between strict
liability and negligence. 9 The evidence which
proves the one will almost always, if not always,
prove the other. 10 We discussed this matter recently
in the case of Roach v. Kononen, 99 Or. Adv. Sh.
1092, 525 P.2d 125 (1974), and pointed out that
there is a difference between strict liability for
misdesign and negligence. We said:
However, be all this as it may, it is
generally recognized that the basic
difference between negligence on the one
hand and strict liability for a design defect
on the other is that in strict liability we are
t a l k in g
about
the condition
(dangerousness) of an article which is
designed in a particular way, while in
negligence we are talking about the
reasonableness of the manufacturer' s
actions in designing and selling the article
as he did. The article can have a degree of
dangerousness which the law of strict
liability will not tolerate even though the
actions of the designer were entirely
reasonable in view of what he knew at the
time he planned and sold the manufactured
article. As Professor Wade points out, a
way of determining whether the condition
of the article is of the requisite degree of
d a n g e rousness to be d efectiv e
(unreasonably dangerous; greater degree
of danger than a consumer has a right to
9
See Jones v. Hutchinson Mfg. , Inc. , 502 S.W . 2d 66,
69-70 (Ky. 1973).
10
Wade, supra note 2, at 836-837.
PHILLIPS v. KIMWOOD MACHINE CO.
PRODUCT LIABILITY
9-16
expect; not duly safe) is to assume that the
manufacturer knew of the product' s
propensity to injury as it did, and then to
ask whether, with such knowledge,
something should have been done about
the danger before it was sold. In other
words, a greater burden is placed on the
manufacturer than is the case in
negligence because the law assumes he has
knowledge of the article' s dangerous
propensity which he may not reasonably
be expected to have, had he been charged
with negligence. 99 Or. Adv. Sh. at 1099,
525 P. 2d at 129.
To some it may seem that absolute liability has
been imposed upon the manufacturer since it might
be argued that no manufacturer could reasonably
put into the stream of commerce an article which
he realized might result in injury to a user. This is
not the case, however. The manner of injury may
be so fortuitous and the chances of injury occurring
so remote that it is reasonable to sell the product
despite the danger. In design cases the utility of the
article may be so great, and the change of design
necessary to alleviate the danger in question may
so impair such utility, that it is reasonable to
market the product as it is, even though the
possibility of injury exists and was realized at the
time of the sale. Again, the cost of the change
necessary to alleviate the danger in design may be
so great that the article would be priced out of the
market and no one would buy it even though it was
of high utility. Such an article is not dangerously
defective despite its having inflicted injury.
In this case defendant contends it was Pope and
Talbot' s choice to purchase and use the sander
without an automatic feeder, even though it was
manufactured to be used with one, and, therefore,
it was Pope and Talbot' s business choice which
resulted in plaintiff' s injury and not any misdesign
by defendant. However, it is recognized that a
failure to warn may make a product unreasonably
dangerous. 11 Comment j, Section 402A, 2
R ESTATEMENT (SECOND) OF T ORTS, has the
11
See Borel v. Fibreboard Paper Products Corp., 493 F. 2d
1076, 1088-1090, (5th Cir . 1973). See generally, P.
Keeton, Products Liability — Inadequacy of Information,
48 T EX . L. R EV . 398, 403-404 (1970); P. Keeton,
Product Liability and the Meaning of Defect, 5 ST .
M ARY ' S L. J. 30, 33-34 (1973).
PHILLIPS v. KIMWOOD MACHINE CO.
following to say:
In order to prevent the product from being
unreasonably dangerous, the seller may be
required to give directions or warning, on
the container, as to its use. The seller may
reasonably assume that those with
common allergies, as for example to eggs
or strawberries, will be aware of them,
and he is not required to warn against
them. Where, however, the product
contains an ingredient to which a
substantial number of the population are
allergic, and the ingredient is one whose
danger is not generally known, or if
known is one which the consumer would
reasonably not expect to find in the
product, the seller is required to give
warning against it, if he had knowledge,
or by the application of reasonable,
developed human skill and foresight
should have knowledge, of the presence of
the ingredient and the danger . Likewise in
the case of poisonous drugs, or those
unduly dangerous for other reasons,
warning as to use may be required.
Although the examples cited in the comment
do not encompass machinery or such products, it
has been recognized that a piece of machinery may
or may not be dangerously defective, depending on
the directions or warnings that may be given with
it. 12
It is our opinion that the evidence was
sufficient for the jury to find that a reasonably
prudent manufacturer, knowing that the machine
would be fed manually and having the constructive
12
H UR SH & BAILEY, 1 A M E R IC A N L A W O F P RODUCTS
L IABILITY 2D , § 4.13 and cases cited therein (1974); See
Berkebile v. Brantly Helicopter Corp., 225 Pa. Super.
349, 311 A. 2d 140, 143 (1973). In fact, in the leading
case in the area of strict liability, Greenman v. Yuba
Power Products, 59 Cal. 2d 57, 27 C al. Rptr. 697, 377
P. 2d 897, 13 A. L. R. 3D 1049 (1963), the California
Supreme Court stated: " To establish the manufacturer' s
liability it was sufficient that plaintiff proved that he was
injured while using the Shopsmith in a way it was
intended to be used as a result of a defect in design and
manufacture of Which plaintiff was not aware that made
the Shopsmith unsafe for its intended use." (Emphasis
added. ) 27 Cal. Rptr. at 701, 377 P. 2d at 901. Thus it
appears that the piece of machinery might not have been
"defective" had the purchaser been made aware of its
propensities through proper warnings.
PRODUCT LIABILITY
knowledge of its propensity to regur gitate thin
sheets when it was set for thick ones, which the
cour ts via strict liability have imposed upon it,
would have warned plaintiff' s employer either to
feed it automatically or to use some safety device,
and that, in the absence of such a warning, the
machine was dangerously defective. It is therefore
unnecessary for us to decide the questions that
would arise had adequate warnings been given.
In Anderson v. Klix Chemical, 256 Or. 199,
472 P. 2d 806 (1970), we came to the conclusion
that there was no difference between negligence
and strict liability for a product that was
unreasonably dangerous because of failure to warn
of certain characteristics. We have now come to
the conclusion that we were in error. The reason
we believe we were in error parallels the rationale
that was expressed in the previously quoted
material from Roach v. Kononen, supra, where we
discussed the difference between strict liability for
misdesign and negligence. In a strict liability case
we are talking about the condition (dangerousness)
of an article which is sold without any warning,
while in negligence we are talking about the
reasonableness of the manufacturer' s actions in
selling the article without a warning. The article
can have a degree of dangerousness because of a
lack of warning which the law of str ict liability will
not tolerate even though the actions of the seller
were entirely reasonable in selling the article
without a warning considering what he knew or
should have known at the time he sold it. A way to
determine the dangerousness of the article, as
distinguished from the seller' s culpability, is to
assume the seller knew of the product' s propensity
to injure as it did, and then to ask whether, with
such knowledge, he would have been negligent in
selling it without a warning.
It is apparent that the language being used in
the discussion of the above problems is largely that
which is also used in negligence cases, i.e.,
"unreasonably dangerous, " "have reasonably
anticipated," "reasonably prudent manufacturer,"
etc. It is necessary to remember that whether the
doctrine of negligence, ultrahazardousness, or
strict liability is being used to impose liability, the
same process is going on in each instance, i. e.,
weighing the utility of the article against the risk of
its use. Therefore, the same language and concepts
of reasonableness are used by courts for the
determination of unreasonable danger in products
9-17
liability cases. F or example, see the criteria set out
in Roach v. Kononen, supra. 13 The difference
between the three theories of recovery is in the
manner in which the decisional functions are
distributed between the court and the jury. The
following language, we believe, is appropriate:
In an action for negligence it is normally
the function of the jury to determine
whether the defendant was negligent,
subject, of course, to the authority of the
judge to direct a verdict for the defendant,
if he finds that the jury could not
reasonably find for the plaintiff. On the
other hand, in an action based on strict
liability of the Rylands [Rylands v.
Fletcher] type, for an abnormally
dangerous activity, the determination as to
whether strict liability will be imposed for
the activity is held to be one for the judge,
not the jury — for the reason that the
decision involves issues of general social
policy. In the products cases the courts
seem not to have approached the problem
in this fashion. Instead, they seem to have
assumed that strict products liability is like
negligence in this respect, so that a
plaintiff, in order to recover, must
convince the jury that the product was
` defective' or ` unreasonably dangerous'
or ` not duly safe,' or whatever test is
used. This generally works quite
satisfactorily when the question is whether
the product was unsafe because of an error
in the manufacturing process so that it was
not in the condition in which it was
13
(1) The usefulness and desirability of the product — its
utility to the user and to the public as a whole. (2) The
safety aspects of the product —the likelihood that it will
cause injur y, and the probable seriousness of the injury.
(3) The availability of a substitute product which would
meet the same need and not be as unsafe. (4) The
manufacturer' s ability to eliminate the unsafe character of
the product without impairing its usefulness or making it
too expensive to maintain its utility. (5) The user' s ability
to avoid danger by the exercise of care in the use of the
product. (6) The user' s anticipated awareness of the
dangers inherent in the product and their avoidability,
because of general public knowledge of the obvious
condition of the product, or of the existence of suitable
warnings or instructions. (7) The feasibility, on the part of
the manufacturer, of spreading the loss by setting the price
of the product or carrying liability insurance.
PHILLIPS v. KIMWOOD MACHINE CO.
PRODUCT LIABILITY
9-18
intended to be. The issue then seems more
factual, of the kind the jury is accustomed
to handling. The difficulty comes when it
is not just the single article which is to be
classed as unsafe because something went
wrong in the making of it, but a whole
group or class or type which may be
unsafe because of the nature of the design.
It is here that the policy issues become
very important and the factors which were
enumerated above must be collected and
carefully weighed [as set out in Roach v.
Kononen, supra]. It is here that the court
— whether trial or appellate — does
consider these issues in deciding whether
to submit the case to the jury. If a plaintiff
sues the manufacturer of a butcher knife
because he cut his finger, on the sole
ground that the knife was so sharp that it
was likely to cut human flesh, the court
would probably take the case out of the
hands of the jury and not give it the
opportunity to find that the knife was
unsafe. Similarly with an aspirin
manufacturer, when an ordinary tablet
stuck to the lining of the plaintiff' s
stomach and caused a hemorrhage, or the
manufacturer of the Pasteur treatment for
rabies, when there were untoward
reactions. The problem in these cases is
likely to be called one of law and decided
by the court. Court control of jury action
is more extensive here than in the ordinary
negligence action. And yet, of course, if
the court decides that it would be
reasonable to allow the jury to find for the
plaintiff, the issue of lack of due safety
will be submitted to the jury even in these
cases." (Footnotes omitted.) 14
It is important to point out, as indicated in the
above quotation, that while the decision is made by
the court whether an activity is abnormally
dangerous and strict liability of the Rylands v.
Fletcher15 type is to be applied, the determination
14
Wade, supra note 2, at 838-839.
15
Fletcher v. Rylands, 3 H & C 774, 159 Eng. Rep. 737
(Ex. 1865), Reversed in Fletcher v. Rylands, LR 1 Ex.
265 (1866), Affirmed in Rylands v. Fletcher, LR 3 HL 330
(continued.. . )
PHILLIPS v. KIMWOOD MACHINE CO.
of whether a product is dangerously defective and
strict liability is to be applied has been treated as
one primarily for the jury, similar to the manner in
which negligence is determined. Therefore, the
factors set forth by Wade and used in Roach v.
Kononen, supra, are not the bases for instructions
to the jury but are for the use of the court in
determining whether a case has been made out
which is submissible to the jury. If such a case has
been made out, then it is submitted to the jury for
its determination under instructions as to what
constitutes a "dangerously defective" product,
much in the same manner as negligence is
submitted to the jury under the "reasonable man"
rule. 16
Defendant contends that other and different
instructions were given to plaintiff' s employer,
Pope and Talbot, and the accident occurred
because these instructions were not followed and,
therefore, the sander was misused and defendant is
not responsible for the accident. Defendant' s
employee who inspected the installation of the
sander testified that he told Pope and Talbot' s
sander superintendent, as previously indicated, that
the top half of the sander should not be raised
while material was being run through it, and this
evidence was not refuted. It is not clear from the
testimony of the sander operator whether the top
half of the machine was in the process of being
raised at the time the accident occurred, as is
contended by defendant. believe the testimony is
capable of being interpreted to the effect that when
the thicker sheets caused by the press malfunction
showed up, they all seemed to be of a uniform
thickness, and the top of the machine was set to
accommodate the extra thickness; then a number of
pieces were run through before the thin piece,
15
(. . . continued)
(1868).
16
Wade, supra note 2, at 834-835. Professor Wade also
suggests an appropriate jury instruction which embodies
the new standard. W e have taken the liberty of modifying
his suggestion to a form which seems to us more
appropriate for use by a jur y. It is as follows: ` The law
imputes to a manufacturer [supplier] knowledge of the
harmful character of his product whether he actually
knows of it or not. He is presumed to know of the harmful
characteristics of that which he makes [supplies].
Therefore, a product is dangerously defective if it is so
harmful to persons [or proper ty] that a reasonable prudent
manufacturer [supplier] with this knowledge would not
have placed it on the market."
PRODUCT LIABILITY
which had been mixed in with the thick ones, came
along and was regur gitated due to the insufficient
pressure exerted by the pinch rolls to offset the
backward pressure of the sanding heads. In any
event, we believe the testimony would permit the
jury to find that whether the top had been regulated
for a specific thickness of material at the time of
the accident or was in the process of being raised,
the accident would have occurred in either
circumstance.
Even if the testimony is capable of the sole
construction which defendant puts on it, there is no
testimony that the danger of raising the top of the
sander while running material through it was ever
explained to Pope and Talbot, 17 and, in the absence
of such an explanation, we believe the question of
whether the accident occurred because the sander
was dangerously defective or because it was
misused was one for the jury and should not be
decided as a matter of law, as contended by
defendant.
Defendant calls to our attention that one of the
principal rationales behind the imposition of strict
liability upon the manufacturer for injuries caused
by dangerously defective products is that the
manufacturer is in the position of distributing the
cost of such risks among all users of the product.
Defendant then argues that in the present situation
Pope and Talbot would normally bear the
responsibility for the injury to its employee and
that because Pope and Talbot is just as capable of
spreading the cost of injury by the sale of its
product as is defendant, there is no logic in
imposing liability without fault upon defendant for
the purpose of distributing the risk.
Defendant thus confronts us with the problem
we have already been faced with in Wights v. Staff
Jennings, 241 Or. 301, 405 P.2d 624 (1965),
where we noted the difficulty of limiting the
applicability of the enterprise liability theory as a
basis for recovery in tort. While the enterprise
liability theory may be indifferent as to whether the
defendant or plaintiff' s employer should bear this
loss, there are other theories which allow us to
make a choice.
17
Where a user might not realize that a minor departure
from instructions may cause serious danger, an additional
duty to warn of a danger arises. N oel, Products Defective
Because of Inadequate Directions or Warnings, 23 SW .
L. J. 256, 263 (1969).
9-19
Where a defendant' s product is adjudged by a
jury to be dangerously defective, imposition of
liability on the manufacturer will cause him to take
some steps (or at least make calculations) to
improve his product. Although such inducement
may not be any greater under a system of strict
liability than under a system of negligence
recovery, it is certainly greater than if the liability
was imposed on another party simply because that
other party was a better risk distributor. We
suspect that, in the final analysis, the imposition of
liability has a beneficial effect on manufacturers of
defective products both in the care they take and in
the warning they give.
The case is reversed and remanded for a new
trial.
Questions and Notes
1. Oregon adopted a product liability statute
that rendered the court’ s holding in Phillips
obsolete. McCathern v. Toyota Motor Corp., 332
Or. 59, 23 P. 3d 320 (2001).
2. Note that evidence of post-accident
improvements was admitted. Should it have been?
See Ault v. International Harvester Co., 13 Cal. 3d
113, 117 Cal. Rptr. 812, 528 P. 2d 1148 (1974)
(holding post-accident evidence admissible);
contra, Grenada Steel Indus. , Inc. v. Alabama
Oxygen Co., Inc., 695 F .2d 883 (5th Cir. 1983).
2. What does the court mean in footnote 3?
3. Some courts consider failure to warn as a
negligence theory. "[N]otwithstanding what a few
cour ts have said, a claimant who seeks recovery on
this basis [failure to warn] must, according to the
generally accepted view, prove that the
manufacturer-designer was negligent. " P ROSSER &
KEETON , § 99, at 697. Is this sound public policy?
4. Note that in some cases the duty to warn
extends beyond the sale of the product, so that a
defect discovered only after the product is sold will
still create a duty to warn. See the Washington
statute, infra, R. C. W. 7. 72. 030(1)(c).
5. One commentator suggests that in this type
of case the court is making the employer into a
PHILLIPS v. KIMWOOD MACHINE CO.
PRODUCT LIABILITY
9-20
"conscripted samaritan" through "the use of tort
law to force one actor (e.g., a manufacturer) to
adopt measures to protect a potential victim (e.g.,
a worker) from the misdeeds of a third party (e.g.,
an employer) or even from the foolhardiness of the
victim himself. " Weiler, Workers' Compensation
and Product Liability: The Interaction of a Tort
and a Non-Tort Regime, 50 O HIO ST . L. J. 825, 829
(1989). Do you agree?
6. As this case illustrates, one of the thorniest
problems in products liability law is the
harmonization of the workers' compensation
regime and tort liability for manufacturers of
products. Many product liability claims arise out of
the use of dangerous products in the workplace,
and many times the employer is at fault in the use
of the machinery alleged to be defective. Does the
workers' compensation regime shield the employer
from claims by the manufacturer for contribution
in the event of a combination of employer fault and
product defect? The Washington Supreme Court
recently tried to find a coherent approach to
conflicting statutory instructions regarding
comparative fault and the worker' s compensation
system. In Clark v. Pacificorp, 118 Wash. 2d 167,
822 P. 2d 162 (1992), the court held that in a
products liability case involving worker' s
compensation, a third party claim by the employee
or beneficiary of the employee, and determination
of whether the insurer of the worker' s
compensation receives reimbursement, the trier of
fact shall first apportion fault to all at-fault
participators according to the appropriate statute.
These participators include the injured worker or
beneficiary, the employer, and the third party.
Each party is responsible for paying his share of
the damages. The insurer pays the employer' s
percentage of fault through worker' s compensation
benefits. If the employer' s share of fault exceeds
the amounts of benefits already paid, then the
insurer' s right to reimbursement is reduced. If the
employer' s fault exceeds that of the third party, the
right to reimbursement is extinguished. For a
thoughtful analysis of the general problem of
integrating the two regimes (product liability and
worker' s compensation), see the Weiler article,
supra note 5.
BROWN v. SUPERIOR COURT
44 Cal. 3d 1049, 245 Cal. Rptr. 412, 751 P. 2d
470 (1988)
[You will recall that portions of this opinion
were included supra (Chapter Three, § B). The
court held that the Sindell market share approach
was not available for actions of fraud and breach
of warranty and that defendants would in other
ways be severally, not jointly, liable based on their
market share. The following sections address the
product liability issues.]
***
A. Strict Liability in General
The doctrine of strict liability had its genesis in
a concurring opinion by Justice Roger Traynor in
Escola v. Coca Cola Bottling Co. (1944) 24 Cal.
2d 453, 461, 150 P. 2d 436. He suggested that a
manufacturer should be absolutely liable if, in
placing a product on the market, it knew the
product was to be used without inspection, and it
proved to have a defect that caused injury. The
policy considerations underlying this suggestion
were that the manufacturer, unlike the public, can
anticipate or guard against the recurrence of
hazards, that the cost of injury may be an
overwhelming misfortune to the person injured
whereas the manufacturer can insure against the
risk and distribute the cost among the consuming
public, and that it is in the public interest to
discourage the marketing of defective products.
This court unanimously adopted Justice Traynor' s
concept in Greenman v. Yuba Power Products,
Inc. (1963) 59 Cal. 2d 57, 62, 27 Cal. Rptr. 697,
377 P. 2d 897, holding a manufacturer strictly
liable in tort and using the formulation of the
doctrine set forth in Escola.
Strict liability differs from negligence in that it
eliminates the necessity for the injured party to
prove that the manufacturer of the product which
caused injury was negligent. It focusses not on the
conduct of the manufacturer but on the product
itself, and holds the manufacturer liable if the
product was defective.
In 1965, soon after our decision in Greenman,
the RESTATEMENT SECOND OF T ORTS published
section 402A, which set forth the strict liability
doctrine (hereinafter section 402A). 1 Almost all
1
BROWN v. SUPERIOR COURT
Section 402A provides: " (1) One who sells any product in
a defective condition unreasonably dangerous to the user
(continued.. . )
PRODUCT LIABILITY
states have adopted some form of strict liability
since that time. (P ROSSER & KEETON ON T ORTS
(5th ed. 1984) § 99, p. 694.)
This court refined and explained application of
the principle in Cronin v. J.B.E. Olson Corp.
(1972) 8 Cal. 3d 121, 104 Cal. Rptr. 433, 501
P. 2d 1153, and Barker v. Lull Engineering Co.
(1978) 20 Cal. 3d 413, 143 Cal. Rptr. 225, 573
P. 2d 443 (hereafter Barker). In Cronin, we
rejected the requirement of section 402A that the
defect in a product must be "unreasonably
dangerous" to the consumer in order to invoke
strict liability, holding that the requirement "rings
of negligence" (8 Cal. 3d at p. 132, 104 Cal. Rptr.
433, 501 P. 2d 1153) and that the showing of a
defect which proximately caused injury is sufficient
to justify application of the doctrine.
Barker defined the term "design defect" in the
context of strict liability. In that case the plaintiff
was injured while operating a piece of heavy
construction equipment, and claimed that a safety
device called an "outrigger" would have prevented
the accident. We held that the defendant could be
held liable for a defect in design.
Barker identified three types of product
defects. (20 Cal. 3d at p. 428, 143 Cal. Rptr. 225,
573 P. 2d 443.) First, there may be a flaw in the
manufacturing process, resulting in a product that
differs from the manufacturer' s intended result.
The archetypal example of such a defect was
involved in Escola, supra, 24 Cal. 2d 453, 150
P. 2d 436, a Coca Cola bottle that exploded. Such
a manufacturing defect did not exist in the heavy
equipment that caused the injury in Barker, and is
not alleged in the present case.
Second, there are products which are
"perfectly" manufactured but are unsafe because of
the absence of a safety device, i.e., a defect in
design. This was the defect alleged in Barker. It
1
(. . . continued)
or consumer or to his property is subject to liability for
physical harm thereby caused to the ultimate user or
consumer, or to his property, if [¶ ] (a) the seller is
engaged in the business of selling such a product, and [¶ ]
(b) it is expected to and does reach the user or consumer
without substantial change in the condition in which it is
sold. [¶ ] (2) The r ule stated in Subsection (1) applies
although [¶ ] (a) the seller has exercised all possible care
in the preparation and sale of the product, and [¶ ] (b) the
user or consumer has not bought the product from or
entered into any contractual relation with the seller."
9-21
held that a product is defectively designed if it
failed to perform as safely as an ordinary consumer
would expect when used as intended or reasonably
foreseeable, or if, on balance, the risk of danger
inherent in the challenged design outweighs the
benefits of the design. (20 Cal. 3d at p. 430, 143
Cal. Rptr. 225, 573 P. 2d 443.) Plaintiff asser ts this
test should be applied in the present case because
DE S contained a design defect.
The third type of defect identified in Barker is
a product that is dangerous because it lacks
adequate warnings or instructions. According to
plaintiff, defendants here failed to warn of the
dangers inherent in the use of DES. We are
concerned, therefore, with the second and third
types of defects described in Barker.
B. Strict Liability and Prescription Drugs
Even before Greenman was decided, the
members of the American Law Institute, in
considering whether to adopt a rule of strict
liability, pondered whether the manufacturer of a
prescription drug should be subject to the doctrine.
(38 ALI Proc. 19, 90-92, 98 (1961).) Dur ing a
rather confusing discussion of a draft of what was
to become section 402A, a member of the institute
proposed that drugs should be exempted from strict
liability on the ground that it would be "against the
public interest" to apply the doctrine to such
products because of "the very serious tendency to
stifle medical research and testing." Dean Prosser,
who was the reporter for the RESTATEMENT
SECOND OF T ORTS, responded that the problem
was a real one, and that he had it in mind in
drafting section 402A. A motion to exempt
prescription drugs from the section was defeated on
the suggestion of Dean Prosser that the problem
could be dealt with in the comments to the section. 2
However, a motion to state the exemption in a
comment was also defeated. (38 ALI Proc. 19,
90-98, supra. ) At the next meeting of the institute
in 1962, section 402A was approved together with
comment k thereto. (41 ALI Proc. 227, 244
(1962). )
The comment provides that the producer of a
2
One commentator has pointed out that at the 1961 meeting
Dean Prosser proposed an exemption even br oader than
that suggested by the motion to exempt prescription drugs
from strict liability. (Page, Generic Product Risks: The
Case Against Comment k and for Strict Tort Liability
(1983) 58 N.Y. U. L. R EV . , 853, 863, 866.)
BROWN v. SUPERIOR COURT
PRODUCT LIABILITY
9-22
proper ly manufactured prescription drug may be
held liable for injuries caused by the product only
if it was not accompanied by a warning of dangers
that the manufacturer knew or should have known
about. It declares: " k. Unavoidably unsafe
products. 3 There are some products which, in the
present state of human knowledge, are quite
incapable of being made safe for their intended and
ordinary use. These are especially common in the
field of drugs. An outstanding example is the
vaccine for the Pasteur treatment of rabies, which
not uncommonly leads to very serious and
damaging consequences when it is injected. Since
the disease itself invariably leads to a dreadful
death, both the marketing and use of the vaccine
are fully justified, notwithstanding the unavoidable
high degree of risk which they involve. Such a
product, properly prepared, and accompanied by
proper directions and warning, is not defective, nor
is it unreasonably dangerous. The same is true of
many other drugs, vaccines, and the like, many of
which for this very reason cannot legally be sold
except to physicians, or under the prescription of
a physician. It is also true in particular of many
new or experimental drugs as to which, because of
lack of time and opportunity for sufficient medical
experience, there can be no assurance of safety, or
perhaps even of purity of ingredients, but such
experience as there is justifies the marketing and
use of the drug notwithstanding a medically
recognizable risk. The seller of such products,
again with the qualification that they are proper ly
prepared and marketed, and proper warning is
given, where the situation calls for it, is not to be
held to strict liability for unfortunate consequences
attending their use, merely because he has
undertaken to supply the public with an appar ently
useful and desirable product, attended with a
known but apparently reasonable risk."
Comment k has been analyzed and criticized
by numerous commentators. While there is some
disagreement as to its scope and meaning, there is
a general consensus that, although it purports to
explain the strict liability doctrine, in fact the
principle it states is based on negligence. (E.g.,
Schwartz, Unavoidably Unsafe Products:
Clarifying the Meaning and Policy Behind
3
We discuss in footnote 11, post, plaintiff' s assertion that
comment k does not apply to all prescription drugs but
only to those found to be " unavoidably dangerous. "
BROWN v. SUPERIOR COURT
Comment K (1985) 42 WASH . & L EE L. R EV .
1139, 1141; McClellan, Drug Induced Injury
(1978) 25 W AYNE L. R EV . 1, 2; Kidwell, The Duty
to Warn: A Description of the Model of Decision
(1975) 53 T EX . L. R EV . 1375, 1377-1378; Merrill,
Compensation for Prescription Drug Injuries
(1973) 59 V A . L. R EV . 1, 50. ) That is, comment k
would impose liability on a drug manufacturer only
if it failed to warn of a defect of which it either
knew or should have known. This concept focuses
not on a deficiency in the product — the hallmark
of strict liability —but on the fault of the producer
in failing to warn of dangers inherent in the use of
its product that were either known or knowable —
an idea which "rings of negligence," in the words
of Cronin, supra, 8 Cal. 3d 121, 132, 104 Cal.
Rptr. 433, 501 P. 2d 1153. 4
Comment k has been adopted in the
overwhelming majority of jurisdictions that have
considered the matter . (E.g., DeLuryea v.
Winthrop Laboratories, etc. (8th Cir. 1983) 697
F. 2d 222, 228-229; Basko v. Sterling Drug, Inc.
(2d Cir. 1969) 416 F.2d 417, 425-426; Stone v.
Smith, Kline & French Lab. (Ala. 1984) 447 So.
2d 1301, 1303-1304; Gaston v. Hunter (App.
1978) 121 Ariz. 33, 588 P.2d 326, 338-341;
Chambers v. G. D. Searle & Co. (D. Md. 1975)
441 F. Supp. 377, 380-381; Johnson v. American
Cyanamid Co. (1986) 239 Kan. 279, 718 P. 2d
1318, 1323. ) In California, several decisions of the
Courts of Appeal have embraced the comment k
exemption (Carmichael v. Reitz (1971) 17 Cal.
App. 3d 958, 988-989, 95 Cal. Rptr. 381;
Christofferson v. Kaiser Foundation Hospitals
(1971) 15 Cal. App. 3d 75, 79-80, 92 Cal. Rptr.
825; Toole v. Richardson-Merrell Inc. (1967) 251
4
The test stated in comment k is to be distinguished from
strict liability for failure to warn. Although both concepts
identify failure to warn as the basis of liability, comm ent
k imposes liability only if the manufacturer knew or
should have known of the defect at the tim e the product
was sold or distributed. Under strict liability, the reason
why the warning was not issued is irrelevant, and the
manufacturer is liable even if it neither knew nor could
have known of the defect about which the warning was
required. Thus, comment k, by focussing on the
blameworthiness of the manufactur er, sets forth a test
which sounds in negligence, while imposition of liability
for failure to war n without regard to the r eason for such
failure is consistent with strict liability since it asks only
whether the product that caused injury contained a defect.
(See Little v. PPG Industries, Inc. (1978), 19 Wash. App.
812, 579 P. 2d 940, 946. )
PRODUCT LIABILITY
Cal. App. 2d 689, 708-711, 60 Cal. Rptr. 398),
but this court has never spoken to the issue. 5
We are aware of only one decision that has
applied the doctrine of strict liability to prescription
drugs. (Brochu v. Ortho Pharmaceutical Corp. (1st
Cir. 1981) 642 F. 2d 652, 654-657.)6 Most cases
have embraced the rule of comment k without
detailed analysis of its language. A few, notably
Kearl v. Lederle Laboratories, supra, 172 Cal.
App. 3d 812, 218 Cal. Rptr. 453 (hereafter Kearl),
have conditioned application of the exemption
stated therein on a finding that the drug involved is
in fact "unavoidably dangerous, " reasoning that the
comment was intended to exempt only such drugs
from strict liability. (Accord, Toner v. Lederle
Laboratories (1987) 112 Idaho 328, 732 P.2d 297,
303-309; see also Feldman v. Lederle Laboratories
(1984) 97 N. J. 429, 479 A. 2d 374, 382-383
(involving allegations of a failure to warn, but
stating that "whether a drug is unavoidably unsafe
should be decided on a case- by-case basis.").)
And in Collins v. Eli Lilly Co. (1984) 116 Wisc. 2d
166, 342 N. W. 2d 37, 52, it was held that comment
k was applicable only if the drug in question was
placed on the market without adequate testing
because of exigent circumstances. 7
5
6
7
Contrary to plaintiff' s assertion, we did not "envision" the
application of strict liability to prescription drugs in
Sindell. That issue was not discussed in the opinion,
although we relied on some of the policy considerations
underlying strict liability in justifying modification of the
rules of proximate cause in a manner we discuss below.
Nor do we agree w ith plaintiff' s claim that Carmichael
and Toole did not adopt comment k. Even though
Carmichael was decided before Barker defined a design
defect, Carmichael' s holding that comment k applies to
prescription drugs was not affected by that definition.
Toole relied on and applied the comment k test, since its
conclusion that the defendant was liable for the plaintiff' s
injuries was based on the defendant' s failure to provide
adequate warnings regarding dangers of the drug and to
disclose certain test results to the government.
In Brochu, the plaintiff had taken an oral contraceptive
which contained 100 milligrams of estrogen as well as
other ingredients. According to the evidence at trial,
estrogen posed a serious risk of harm to her, and the
defendant manufactured another contraceptive pill
containing only 50 milligr ams of estrogen which was
equally effective.
In her dissenting opinion in Finn v. G. D. Searle & Co.
(1984) 35 Cal. 3d 691, 705, 200 Cal. Rptr. 870, 677 P. 2d
1147, Chief Justice Bird advocated a strict liability rule
(continued.. . )
9-23
We appear, then, to have three distinct
choices: (1) to hold that the manufacturer of a
prescription drug is strictly liable for a defect in its
product because it was defectively designed, as that
term is defined in Barker, or because of a failure to
warn of its dangerous propensities even though
such dangers were neither known nor scientifically
knowable at the time of distribution; 8 (2) to
determine that liability attaches only if a
manufacturer fails to warn of dangerous
propensities of which it was or should have been
aware, in conformity with comment k; or (3) to
decide, like Kearl and Toner v. Lederle
Laboratories, supra, 732 P. 2d 297, 303-309, that
strict liability for design defects should apply to
prescription drugs unless the particular drug which
caused the injury is found to be "unavoidably
dangerous. "
We shall conclude that (1) a drug
manufacturer' s liability for a defectively designed
drug should not be measured by the standards of
strict liability; (2) because of the public interest in
the development, availability, and reasonable price
of drugs, the appropriate test for determining
responsibility is the test stated in comment k; and
(3) for these same reasons of policy, we disapprove
the holding of Kearl that only those prescription
drugs found to be "unavoidably dangerous" should
be measured by the comment k standard and that
strict liability should apply to drugs that do not
meet that description.
1. Design Defect
***
[T]here is an important distinction between
prescription drugs and other products such as
construction machinery (Barker; Pike v. Frank G.
Hough Co. (1970) 2 Cal. 3d 465, 85 Cal. Rptr.
629, 467 P.2d 229), a lawnmower (Luque v.
McLean (1972) 8 Cal. 3d 136, 104 Cal. Rptr. 443,
501 P. 2d 1163), or perfume (Moran v. Faberge,
7
(. . . continued)
for prescription drugs based on the test set forth in Barker.
8
We agree with the suggestion of a commentator that a
manufacturer' s knowledge should be measured at the time
a drug is distributed because it is at this point that the
manufactur er relinquishes control of the product. (Wade,
On the Effect in Product Liability of Knowledge
Unavailable Prior to Marketing (1983) 58 N.Y. U. L.
R EV . 734, 753-754.)
BROWN v. SUPERIOR COURT
PRODUCT LIABILITY
9-24
Inc. (1975) 273 Md. 538, 332 A. 2d 11), the
producers of which were held strictly liable. In the
latter cases, the product is used to make work
easier or to provide pleasure, while in the former
it may be necessary to alleviate pain and suffering
or to sustain life. Moreover, unlike other important
medical products (wheelchairs, for example), harm
to some users from prescription drugs is
unavoidable. Because of these distinctions, the
broader public interest in the availability of drugs
at an affordable price must be considered in
deciding the appropriate standard of liability for
injuries resulting from their use.
Perhaps a drug might be made safer if it was
withheld from the market until scientific skill and
knowledge advanced to the point at which
additional dangerous side effects would be
revealed. But in most cases such a delay in
marketing new drugs —added to the delay required
to obtain approval for release of the product from
the Food and Drug Administration — would not
serve the public welfare. Public policy favors the
development and marketing of beneficial new
drugs, even though some risks, perhaps serious
ones, might accompany their introduction, because
drugs can save lives and reduce pain and suffering.
If drug manufacturers were subject to strict
liability, they might be reluctant to undertake
r e s e a r c h p r og r am s t o d e v e lo p s o m e
phar maceuticals that would prove beneficial or to
distribute others that are available to be marketed,
because of the fear of large adverse monetary
judgments. Further, the additional expense of
insuring against such liability — assuming
insurance would be available — and of research
programs to reveal possible dangers not detectable
by available scientific methods could place the cost
of medication beyond the reach of those who need
it most.
***
The possibility that the cost of insurance and of
defending against lawsuits will diminish the
availability and increase the price of
phar maceuticals is far from theoretical. Defendants
cite a host of examples of products which have
greatly increased in price or have been withdrawn
or withheld from the market because of the fear
that their producers would be held liable for large
judgments.
For example, according to defendant E. R.
Squibb & Sons, Inc. , Bendectin, the only
BROWN v. SUPERIOR COURT
antinauseant drug available for pregnant women,
was withdrawn from sale in 1983 because the cost
of insurance almost equalled the entire income
from sale of the drug. Before it was withdrawn, the
price of Benedictin increased by over 300 percent.
(132 C HEMICAL W EEK (June 12, 1983) p. 14.)
Drug manufacturers refused to supply a newly
discovered vaccine for influenza on the ground that
mass inoculation would subject them to enormous
liability. The government therefore assumed the
risk of lawsuits resulting from injuries caused by
the vaccine. (Franklin & Mais, Tort Law and Mass
Immunization Programs (1977) 65 CAL . L. R EV .
754, 769 et seq.; Feldman v. Lederle Laboratories
(1983) 189 N. J. Super. 424, 460 A. 2d 203, 209.)
One producer of diphtheria-tetanus-pertussis
vaccine withdrew from the market, giving as its
reason "extreme liability exposure, cost of
litigation and the difficulty of continuing to obtain
adequate insurance." (Hearing Before Subcom. on
Health and the Environment of House Com. on
Energy and Commerce on Vaccine Injury
Compensation, 98th Cong. , 2d Sess. (Sept. 10,
1984) p. 295.) There are only two manufacturers
of the vaccine remaining in the market, and the
cost of each dose rose a hundredfold from 11 cents
in 1982 to $11.40 in 1986, $8 of which was for an
insurance reserve. The price increase roughly
paralleled an increase in the number of lawsuits
from one in 1978 to 219 in 1985. (232 S CIENCE
(June 13, 1986) p. 1339. ) Finally, a manufacturer
was unable to market a new drug for the treatment
of vision problems because it could not obtain
adequate liability insurance at a reasonable cost.
(N.Y. T IMES (Oct. 14, 1986) p. 10. )
There is no doubt that, from the public' s
standpoint, these are unfortunate consequences.
And they occurred even though almost all
jurisdictions follow the negligence standard of
comment k. It is not unreasonable to conclude in
these circumstances that the imposition of a harsher
test for liability would not further the public
interest in the development and availability of these
important products. 9
We decline to hold, therefore, that a drug
9
We express no opinion whether the products to which
these examples relate were in fact beneficial to the public
health. Our purpose is to demonstrate that there is a
rational connection between the cost and availability of
pharmaceuticals and the liability imposed on their
manufactur ers for injuries resulting from their use.
PRODUCT LIABILITY
9-25
manufacturer' s liability for injuries caused by the
defective design of a prescription drug should be
measured by the standard set forth in Barker.
2. Failure to Warn
For these same reasons of policy, we reject
plaintiff' s assertion that a drug manufacturer
should be held strictly liable for failure to warn of
risks inherent in a drug even though it neither
knew nor could have known by the application of
scientific knowledge available at the time of
distribution that the drug could produce the
undesirable side effects suffered by the plaintiff.
Numerous cases have recognized that a
product may be defective because of the absence of
a warning that was necessar y to allow its safe
use.... While some decisions apply strict liability
principles to such a defect by holding that it is
irrelevant whether the manufacturer knew of the
danger or should have known of it .. ., most
jurisdictions hold to the contrary. That is, liability
is conditioned on the actual or constructive
knowledge of the risk by the manufacturer as of the
time the product was sold or distributed. . . . This
rule is consistent with comment j to section 402A,
which confines the duty to warn to a situation in
which the seller "has knowledge, or by the
application of reasonable, developed human skill
and foresight should have knowledge of . . . the
danger."
It has been said that to "hold the manufacturer
liable for failure to warn of a danger of which it
would be impossible to know based on the present
state of human knowledge would make the
manufacturer the virtual insurer of the product. ..."
(Woodill v. Parke Davis & Co. , supra, 402 N. E. 2d
194, 199; accord, Leibowitz v. Ortho
Pharmaceutical Corp. (1973) 224 Pa. Super. 418,
307 A.2d 449, 458; see Schwartz, The Post-Sale
Duty to Warn: Two Unfortunate Forks in the Road
to a Reasonable Doctrine (1983) 58 N.Y.U. L.
R EV . 892, 894-905.) The likelihood of the
producer' s liability would increase with significant
advances in scientific knowledge, discouraging the
development of new and improved drugs to combat
disease. Thus, we disagree with plaintiff' s assertion
that defendants should be held liable for failing to
warn the physician who prescribed D ES to
plaintiff' s mother of alleged defects in the drug that
were neither known by defendants nor scientifically
knowable at the time the drug was distributed.
***
§ C. Statutory Modifications
REVISED CODE
OF
WASHINGTON
relation between such conduct and the damages.
4.22.015; 7. 70.010 et seq. (1988)
7.72.010 A Definitions
4.22.015 A "Fault" defined
"Fault" includes acts or omissions, including
misuse of a product, that are in any measure
negligent or reckless toward the person or proper ty
of the actor or others, or that subject a person to
strict tort liability or liability on a product claim.
The term also includes breach of warranty,
unreasonable assumption of risk, and unreasonable
failure to avoid an injury or to mitigate damages.
Legal requirements of causal relation apply both to
fault as the basis for liability and to contributory
fault.
A comparison of fault for any purpose under
R.C. W. 4.22.005 through 4.22.060 shall involve
consideration of both the nature of the conduct of
the parties to the action and the extent of the causal
For the purposes of this chapter, unless the context
clearly indicates to the contrary:
(1) Product seller. "Product seller" means any
person or entity that is engaged in the business
of selling products, whether the sale is for
resale, or for use or consumption. The term
includes a manufacturer, w holesaler,
distributor, or retailer of the relevant product.
The term also includes a party who is in the
business of leasing or bailing such products.
The term "product seller" does not include:
(a) A seller of real property, unless that
person is engaged in the mass production
and sale of standardized dwellings or is
otherwise a product seller;
(b) A provider of professional services
BROWN v. SUPERIOR COURT
PRODUCT LIABILITY
9-26
who utilizes or sells products within the
legally author ized scope of the
professional practice of the provider;
(c) A commercial seller of used products
who resells a product after use by a
consumer or other product user: Provided,
That when it is resold, the used product is
in essentially the same condition as when
it was acquired for resale; and
(d) A finance lessor who is not otherwise
a product seller. A "finance lessor" is one
who acts in a financial capacity, who is
not a ma nufa cturer, wholesaler,
distributor, or retailer , and who leases a
product without having a reasonable
opportunity to inspect and discover defects
in the product, under a lease arrangement
in which the selection, possession,
maintenance, and operation of the product
are controlled by a person other than the
lessor.
(2) Manufacturer. "M anufacturer" includes a
product seller who designs, produces, makes,
fabricates, constructs, or remanufactures the
relevant product or component part of a
product before its sale to a user or consumer.
The term also includes a pr oduct seller or
entity not otherwise a manufacturer that holds
itself out as a manufacturer.
A product seller acting primarily as a
wholesaler, distributor, or retailer of a product
may be a "manufacturer" but only to the extent
that it designs, produces, makes, fabricates,
constructs, or remanufactures the product for
its sale. A product seller who performs minor
assembly of a product in accordance with the
instructions of the manufacturer shall not be
deemed a manufacturer. A product seller that
did not participate in the design of a product
and that constructed the product in accordance
with the design specifications of the claimant
or another product seller shall not be deemed
a manufacturer for the purposes of R.C. W.
7. 72. 030(1)(a).
(3) Product. "Product" means any object
possessing intrinsic value, capable of delivery
either as an assembled whole or as a
component part or parts, and produced for
introduction into trade or commerce. Human
tissue and organs, including human blood and
R EVISED C ODE
OF
W A S HI NG T O N
its components, are excluded from this term.
The "relevant product" under this chapter is
that product or its component part or parts,
which gave rise to the product liability claim.
(4) Product liability claim. "Product liability
claim" includes any claim or action brought
for harm caused by the manufacture,
production, making, construction, fabrication,
design, formula, preparation, assembly,
installation, testing, warnings, instructions,
marketing, packaging, storage or labeling of
the relevant product. It includes, but is not
limited to, any claim or action previously
based on: Strict liability in tort; negligence;
breach of express or implied warranty; breach
of, or failure to, discharge a duty to warn or
instruct, whether negligent or innocent;
m i s r e p r e s e n t a t io n ,
c o n c ealm ent,
or
nondisclosure, whether negligent or innocent;
or other claim or action previously based on
any other substantive legal theory except
fraud, intentionally caused harm or a claim or
action under the consumer protection act,
chapter 19.86 RCW.
(5) Claimant. " Claimant" means a person or
entity asserting a product liability claim,
including a wrongful death action, and, if the
claim is asserted through or on behalf of an
estate, the term includes claimant' s decedent.
"Claimant" includes any person or entity that
suffers harm. A claim may be asserted under
this chapter even though the claimant did not
buy the product from, or enter into any
contr actual relationship with, the product
seller.
(6) Harm. "H arm" includes any damages
recognized by the courts of this state:
Provided, That the term " harm" does not
include direct or consequential economic loss
under Title 62A RCW.
Notes:
Preamble — 1981 c 27: "Tort reform in this state
has for the most part been accomplished in the
cour ts on a case-by-case basis. While this process
has resulted in significant progress and the
harshness of many common law doctrines has to
some extent been ameliorated by decisional law,
the legislature has from time to time felt it
PRODUCT LIABILITY
9-27
necessary to intervene to bring about needed
reforms such as those contained in the 1973
comparative negligence act.
The purpose of this amendatory act is to enact
further reforms in the tort law to create a fairer and
more equitable distribution of liability among
parties at fault.
Of particular concern is the area of tort law
known as product liability law. Sharply rising
premiums for product liability insurance have
increased the cost of consumer and industrial
goods. These increases in premiums have resulted
in disincentives to industrial innovation and the
development of new products. High product
liability premiums may encourage product sellers
and manufacturers to go without liability insurance
or pass the high cost of insurance on to the
consuming public in general.
It is the intent of the legislature to treat the
consuming public, the product seller, the product
manufacturer, and the product liability insurer in a
balanced fashion in order to deal with these
problems. It is the intent of the legislature that
the right of the consumer to recover for injuries
sustained as a result of an unsafe product not be
unduly impaired. It is further the intent of the
legislature that retail businesses located primarily
in the state of Washington be protected from the
substantially increasing product liability insurance
costs and unwarranted exposure to product liability
litigation."
7.72.020 A Scope
(1) The previous existing applicable law of this
state on product liability is modified only to the
extent set forth in this chapter.
(2) Nothing in this chapter shall prevent the
recovery of direct or consequential economic loss
under Title 62A RCW.
7.72.030 A Liability of manufacturers
(1) A product manufacturer is subject to liability to
a claimant if the claimant' s harm was proximately
caused by the negligence of the manufacturer in
that the product was not reasonably safe as
designed or not reasonably safe because adequate
warnings or instructions were not provided.
(a) A product is not reasonably safe as
designed, if, at the time of manufacture, the
likelihood that the product would cause the
claimant' s harm or similar harms, and the
seriousness of those harms, outweighed the
burden on the manufacturer to design a
product that would have prevented those harms
and the adverse effect that an alternative
design that was practical and feasible would
have on the usefulness of the product:
Provided, That a firearm or ammunition shall
not be deemed defective in design on the basis
that the benefits of the product do not
outweigh the risk of injury posed by its
potential to cause serious injury, damage, or
death when discharged.
(b) A product is not reasonably safe because
adequate warnings or instructions were not
provided with the product, if, at the time of
manufacture, the likelihood that the product
would cause the claimant' s harm or similar
harms, and the seriousness of those harms,
rendered the warnings or instructions of the
manufacturer inadequate and the manufacturer
could have provided the warnings or
instructions which the claimant alleges would
have been adequate.
(c) A product is not reasonably safe because
adequate warnings or instructions were not
provided after the product was manufactured
where a manufacturer learned or where a
reasonably prudent manufacturer should have
learned about a danger connected with the
product after it was manufactured. In such a
case, the manufacturer is under a duty to act
with regard to issuing warnings or instructions
concerning the danger in the manner that a
reasonably prudent manufacturer would act in
the same or similar circumstances. This duty is
satisfied if the manufacturer exercises
reasonable care to inform product users.
(2) A product manufacturer is subject to strict
liability to a claimant if the claimant' s harm was
proximately caused by the fact that the product was
not reasonably safe in construction or not
reasonably safe because it did not conform to the
manufacturer' s express warranty or to the implied
warranties under Title 62A RCW.
(a) A product is not reasonably safe in
construction if, when the product left the
control of the manufacturer, the product
deviated in some material way from the design
R EVISED C ODE
OF
W A S HI NG T O N
PRODUCT LIABILITY
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specifications or performance standards of the
manufacturer, or deviated in some material
way from otherwise identical units of the same
product line.
specifications for the manufacturer preparation
of the product and such plans or specifications
were a proximate cause of the defect in the
product; or
(b) A product does not conform to the express
warranty of the manufacturer if it is made part
of the basis of the bargain and relates to a
material fact or facts concerning the product
and the express warranty proved to be untrue.
(e) The product was marketed under a trade
name or brand name of the product seller.
(c) Whether or not a product conforms to an
implied warranty created under Title 62A
R. C. W. shall be determined under that title.
(3) In determining whether a product was not
reasonably safe under this section, the trier of fact
shall consider whether the product was unsafe to an
extent beyond that which would be contemplated
by the ordinary consumer.
7.72.040 A Liability of product sellers other
than manufacturers
(1) Except as provided in subsection (2) of this
section, a product seller other than a manufacturer
is liable to the claimant only if the claimant' s harm
was proximately caused by:
(a) The negligence of such product seller; or
(b) Breach of an express warranty made by
such product seller; or
(c) The intentional misrepresentation of facts
about the product by such product seller or the
intentional concealment of information about
the product by such product seller.
(2) A product seller, other than a manufacturer,
shall have the liability of a manufacturer to the
claimant if:
(a) No solvent manufacturer who would be
liable to the claimant is subject to service of
process under the laws of the claimant' s
domicile or the state of Washington; or
(b) The court determines that it is highly
probable that the claimant would be unable to
enforce a judgment against any manufacturer;
or
(c) The product seller is a controlled subsidiary
of a manufacturer , or the manufacturer is a
controlled subsidiary of the product seller; or
(d) The product seller provided the plans or
R EVISED C ODE
OF
W A S HI NG T O N
7.72.050 A Relevance of industry custom,
technological feasibility, and nongovernmental,
legislative or adm inistrative regulatory
standards
(1) Evidence of custom in the product seller' s
industry, technological feasibility or that the
product was or was not, in compliance with
nongovernmental standards or with legislative
regulatory standards or administrative regulatory
standards, whether relating to design, construction
or performance of the product or to warnings or
instructions as to its use may be considered by the
trier of fact. (2) When the injury-causing aspect of
the product was, at the time of manufacture, in
compliance with a specific mandatory government
contract specification relating to design or
warnings, this compliance shall be an absolute
defense. When the injury-causing aspect of the
product was not, at the time of manufacture, in
compliance with a specific mandatory government
specification relating to design or warnings, the
product shall be deemed not reasonably safe under
R. C. W. 7. 72. 030(1).
7.72.060 A Length of time product sellers are
subject to liability
(1) Useful safe life.
(a) Except as provided in subsection (1)(b)
hereof, a product seller shall not be subject to
liability to a claimant for harm under this
chapter if the product seller proves by a
preponderance of the evidence that the harm
was caused after the product' s "useful safe
life" had expired.
Useful safe life" begins at the time of delivery
of the product and extends for the time during
which the product would normally be likely to
perform or be stored in a safe manner. For the
purposes of this chapter, "time of delivery"
means the time of delivery of a product to its
first purchaser or lessee who was not engaged
in the business of either selling such products
PRODUCT LIABILITY
or using them as component parts of another
product to be sold. In the case of a product
which has been remanufactured by a
manufacturer, "time of delivery" means the
time of delivery of the remanufactured product
to its first purchaser or lessee who was not
engaged in the business of either selling such
products or using them as component parts of
another product to be sold.
(b) A product seller may be subject to liability
for harm caused by a product used beyond its
useful safe life, if:
(i) The product seller has warranted that
the product may be utilized safely for such
longer period; or
(ii) The product seller intentionally
misrepresents facts about its product, or
intentionally conceals information about it,
and that conduct was a proximate cause of
the claimant' s harm; or
(iii) The harm was caused by exposure to
a defective product, which exposure first
occurred within the useful safe life of the
product, even though the harm did not
manifest itself until after the useful safe
life had expired.
(2) Presumption regarding useful safe life. If
the harm was caused more than twelve years after
the time of delivery, a presumption arises that the
harm was caused after the useful safe life had
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expired. This presumption may only be rebutted by
a preponderance of the evidence.
(3) Statute of limitation. Subject to the
applicable provisions of chapter 4.16 R.C. W.
pertaining to the tolling and extension of any
statute of limitation, no claim under this chapter
may be brought more than three years from the
time the claimant discovered or in the exercise of
due diligence should have discovered the harm and
its cause.
Questions and Notes
1. In the notes to R.C.W. 7.72.010 the
legislature refers to what is sometimes called the
"crisis" in product liability law. F or an attempt to
justify the perception of crisis with empirical data,
see Viscusi, The Dimensions of the Product
Liability Crisis, 20 J. L EGAL STUD . 147 (1991).
For a critical response, see Eisenberg &
Henderson, Inside the Quiet Revolution in Products
Liability, 39 UCLA L. R EV . 731 (1992).
2. Is electricity a product? See Note,
Electrifying Solutions for the Shocking and
Disparate Treatment of Electricity Within Product
Liability Law, 93 D ICK. L. R EV . 851 (1989).
PRODUCT LIABILITY
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§ D. The Restatement (3d) of Torts (Product Liability)
The most recent development in product
liability law is the drafting of the Restatement (3d)
of Torts (Product Liability). It has generated a fair
degree of controversy because of the perception
that it is unduly favorable to manufacturers. See,
e.g., Frank J. Vandall, State Judges Should Reject
the Reasonable Alternative Design Standard of the
Restatement (3rd) Products Liability, § 2(B),
KANSAS JOURNAL OF L AW AND P UBLIC P OLICY ,
Fall, 1998.
Proponents of the Restatement,
however, have argued that it is a balanced
approach to the issue that will resolve many of the
uncertainties left over from the adoption of the
Restatement (2d), § 402A. Read the provisions of
the Restatement (3d) yourself and see if you can
detect any significant change from what § 402A
provided.
Restatement of the Law Third
Torts: Products Liability
Proposed Final Draft
(April 1, 1997)
Chapter 1. Liability of Commercial Product
Sellers Based on Product Defects at
Time of Sale
Topic 1. Liability Rules Applicable to Products
Generally
Copyright (c) 1997 The American Law Institute
§ 1. LIABILITY OF COMMERCIAL
SELLER OR DISTRIBUTOR
FOR HARM CAUSED BY DEFECTIVE
PRODUCTS
One engaged in the business of selling or
otherwise distributing products who sells or
distributes a defective product is subject to liability
for harm to persons or property caused by the
defect.
§ 2. CATEGORIES OF PRODUCT DEFECT
A product is defective when, at the time of sale
or distribution, it contains a manufacturing defect,
is defective in design, or is defective because of
inadequate instructions or warnings. A product:
(a) contains a manufacturing defect when the
product departs from its intended design even
though all possible care was exercised in the
preparation and marketing of the product;
(b) 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 by the seller or
other distributor, or a predecessor in the
commercial chain of distribution, and the
omission of the alternative design renders the
product not reasonably safe;
(c) is defective because of inadequate
instructions or warnings when the foreseeable
risks of harm posed by the product could have
been reduced or avoided by the provision of
reasonable instructions or warnings by the
seller or other distributor, or a predecessor in
the commercial chain of distribution, and the
omission of the instructions or warnings
renders the product not reasonably safe. 1
1
[Ed. Note: T he following appears in Comment a.
Rationale. ])
. . . In contrast to manufacturing defects, design
defects and defects based on inadequate instructions or
warnings are predicated on a different concept of
responsibility. In the first place, such defects cannot be
determined by reference to the manufacturer' s own design
or marketing standards because those standards are the
very ones that plaintiffs attack as unreasonable. Some sort
of independent assessment of advantages and
disadvantages, to which some attach the label "risk-utility
balancing," is necessary. Products are not generically
defective merely because they are dangerous. Many
product-r elated accident costs can be eliminated only by
excessively sacrificing product features that make the
products useful and desirable. Thus, trade-offs are
necessary to determine which accident costs are more
fairly and efficiently borne by those who incur them, on
the one hand, and, on the other hand, by product users
and consumers through the mechanism of holding product
sellers liable and having product prices reflect the relevant
costs.
Subsections (b) and (c), which impose liability for
products that are defectively designed or sold without
adequate warnings or instructions and are thus not
reasonably safe, achieve the same general objectives as
does liability predicated on negligence. The emphasis is on
creating incentives for manufacturer s to achieve optimal
levels of safety in designing and mar keting products.
Society does not benefit from products that are excessively
safe -- for example, automobiles designed with maximum
speeds of 20 miles per hour -- any more than it benefits
from products that are too risky. Society benefits most
when the right, or optimal, amount of product safety is
achieved. Fr om a fairness perspective, requiring
(continued.. . )
PRODUCT LIABILITY
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§ 3. CIRCUMSTANTIAL EVIDENCE
SUPPORTING
INFERENCE OF PRODUCT DEFECT
§ 4. NONCOMPLIANCE AND
COMPLIANCE WITH PRODUCT
SAFETY STATUTES OR REGULATIONS
It may be inferred that the harm sustained by
the plaintiff was caused by a product defect
existing at the time of sale or distribution, without
proof of a specific defect, when the incident that
harmed the plaintiff:
In connection with liability for defective design
or inadequate instructions or warnings:
(a) Was of a kind that ordinarily occurs as a
result of product defect; and
(b) Was not, in the particular case, solely the
result of causes other than product defect
existing at the time of sale or distribution.
1
(. . . continued)
individual users and consumers to bear appropriate
responsibility for proper pr oduct use prevents car eless
users and consumer s from being subsidized by more
careful users and consumers, when the former are paid
damages out of funds to which the latter are forced to
contribute thr ough higher pr oduct prices.
In general, the rationale for imposing strict liability
on manufacturers for harm caused by manufacturing
defects does not apply in the context of imposing liability
for defective design and defects based on inadequate
instruction or warning. Consumer expectations as to
proper product design or warning are typically more
difficult to discern than in the case of a manufacturing
defect. Moreover, the element of deliberation in setting
appropriate levels of design safety is not directly
analogous to the setting of levels of quality control by the
manufacturer. When a manufacturer sets its quality
control at a certain level, it is aware that a given num ber
of products may leave the assembly line in a defective
condition and cause injury to innocent victim s who can
generally do nothing to avoid injury. The implications of
deliberately drawing lines with respect to product design
safety are different. A reasonably designed product still
carries with it elements of risk that must be protected
against by the user or consumer since some risks cannot
be designed out of the product at reasonable cost.
For the liability system to be fair and efficient, most
courts agree that the balancing of risks and benefits in
judging product design and marketing must be done in
light of the knowledge of r isks and risk-avoidance
techniques reasonably attainable at the time of
distribution. To hold a manufacturer liable for a risk that
was not foreseeable when the product was marketed might
foster increased manufacturer investment in safety. But
such investment by definition would be a matter of
guesswork. Furthermore, manufacturers may persuasively
ask to be judged by a normative behavior standard to
which it is reasonably possible for manufacturers to
conform. For these reasons, Subsections (b) and (c) speak
of products being defective only when risks were
reasonably for eseeable.
(a) A product' s noncompliance with an
applicable product safety statute or
administrative regulation renders the product
defective with respect to the risks sought to be
reduced by the statute or regulation; and
(b) A product' s compliance with an applicable
product safety statute or administrative
regulation is properly considered in
determining whether the product is defective
with respect to the risks sought to be reduced
by the statute or regulation, but such
compliance does not preclude as a matter of
law a finding of product defect.
§ 5. LIABILITY OF COMMERCIAL
SELLER OR DISTRIBUTOR OF
PRODUCT COMPONENTS FOR HARM
CAUSED BY PRODUCTS
INTO WHICH COMPONENTS ARE
INTEGRATED
One engaged in the business of selling or
otherwise distributing product components who
sells or distributes a component is subject to
liability for harm to persons or property caused by
a product into which the component is integrated
if:
(a) The component is defective in itself, under
§§ 1-4, and the defect causes the harm; or
(b) (1) The seller or distributor of the
component substantially participates in the
integration of the component into the
design of the product; and
(2) The integration of the component
causes the product to be defective as defined
under §§ 1-4; and
(3) The defect in the product causes the
harm.
PRODUCT LIABILITY
9-32
§ 7. LIABILITY OF COMMERCIAL
SELLER OR DISTRIBUTOR
FOR HARM CAUSED BY DEFECTIVE
FOOD PRODUCTS
One engaged in the business of selling or
otherwise distributing food products who sells or
distributes a defective food product under § 2, § 3,
or § 4 is subject to liability for harm to persons or
proper ty caused by the defect. Under § 2(a) a
harm-causing ingredient of the food product
constitutes a defect if a reasonable consumer would
not expect the food product to contain that
ingredient.
§ 8. LIABILITY OF COMMERCIAL
SELLER OR DISTRIBUTOR
OF DEFECTIVE USED PRODUCTS
One engaged in the business of selling or
otherwise distributing used products who sells or
distributes a defective used product is subject to
liability for harm to persons or property caused by
the defect if the defect:
(a) results from the seller' s failure to exercise
reasonable care; or
(b) is a manufacturing defect under § 2(a) or a
defect that may be inferred under § 3 and the
seller' s marketing of the product would cause
a reasonable person in the position of the
buyer to expect the used product to present no
greater risk of defect than if the product were
new; or
(c) is a defect under § 2 or § 3 in a used
product remanufactured by the seller or a
predecessor in the commercial chain of
distribution of the used product.
A used product is a product that, prior to the
time of sale or other distribution referred to in this
Section, is commercially sold or otherwise
distributed to a buyer not in the commercial chain
of distribution and used for some period of time.
§ 9. LIABILITY OF COMMERCIAL
PRODUCT SELLER OR DISTRIBUTOR
FOR HARM CAUSED BY
MISREPRESENTATION
One engaged in the business of selling or
otherwise distributing products who, in connection
with the sale of a product, makes a fraudulent,
negligent, or innocent m isre pr esen tation
concerning the product is subject to liability for
harm to persons or property caused by the
misrepresentation.
§ 10. LIABILITY OF COMMERCIAL
PRODUCT SELLER OR DISTRIBUTOR
FOR HARM CAUSED BY POST-SALE
FAILURE TO WARN
(a) One engaged in the business of selling or
otherwise distributing products is subject to
liability for harm to persons or property caused
by the seller' s failure to provide a warning
after the time of sale or distribution of a
product when a reasonable person in the
seller' s position would provide such a
warning.
(b) A reasonable person in the seller' s position
would provide a warning after the time of sale
when:
(1) the seller knows or reasonably should
know that the product poses a substantial
risk of harm to persons or property; and
(2) those to whom a warning might be
provided can be identified and may
reasonably be assumed to be unaware of
the risk of harm; and
(3) a warning can be effectively
communicated to and acted on by those to
whom a warning might be provided; and
(4) the risk of harm is sufficiently great to
justify the burden of providing a warning.
§ 11. LIABILITY OF COMMERCIAL
PRODUCT SELLER OR DISTRIBUTOR
FOR HARM CAUSED BY POST-SALE
FAILURE TO RECALL PRODUCT
One engaged in the business of selling or
otherwise distributing products is subject to
liability for harm to persons or property caused by
the seller' s failure to recall a product after the time
of sale or distribution if:
(c) (1) a statute or other governmental
regulation specifically requires the seller
or distributor to recall the product; or
(2) the seller or distributor, in the absence
of a recall requirement under Subsection
PRODUCT LIABILITY
(1), undertakes to recall the product; and
(b) the seller or distributor fails to act as a
reasonable person in recalling the product.
§ 12. LIABILITY OF SUCCESSOR FOR
HARM CAUSED BY DEFECTIVE
PRODUCTS SOLD COMMERCIALLY BY
PREDECESSOR
A successor corporation or other business
entity that acquires assets of a predecessor
corporation or other business entity is subject to
liability for harm to persons or property caused by
a defective product sold or otherwise distributed
commercially by the predecessor if the acquisition:
(a) is accompanied by an agreement for the
successor to assume such liability; or
(b) results from a fraudulent conveyance to
escape liability for the debts or liabilities of the
predecessor; or
(c) constitutes a consolidation or merger with
the predecessor; or
(d) results in the successor' s becoming a
continuation of the predecessor.
§ 14. SELLING OR OTHERWISE
DISTRIBUTING AS ONE'S OWN
A PRODUCT MANUFACTURED BY
ANOTHER
One engaged in the business of selling or
otherwise distributing products who sells or
distributes as its own a product manufactured by
another is subject to the same liability as though
the seller or distributor were the product' s
manufacturer.
§ 15. GENERAL RULE GOVERNING
CAUSAL CONNECTION BETWEEN
PRODUCT DEFECT AND HARM
Whether a product defect caused harm to
persons or proper ty is determined by the prevailing
rules and principles governing causation in tort.
§ 16. INCREASED HARM DUE TO
PRODUCT DEFECT
(a) When a product is defective at the time of
sale and the defect is a substantial factor in
increasing the plaintiff' s harm beyond that
9-33
which would have resulted from other causes,
the product seller is subject to liability for the
increased harm.
(b) If proof supports a determination of the
harm that would have resulted from other
causes in the absence of the product defect, the
product seller' s liability is limited to the
increased harm attributable solely to the
product defect.
(c) If proof does not support a determination
under Subsection (b) of the harm that would
have resulted in the absence of the product
defect, the product seller is liable for all of the
plaintiff' s harm attributable to the defect and
other causes.
(d) A seller of a defective product who is held
liable for part of the harm suffered by the
plaintiff under Subsection (b), or all of the
harm suffered by the plaintiff under Subsection
(c), is jointly and severally liable with other
parties who bear legal responsibility for
causing the harm, determined by applicable
rules of joint and several liability.
§ 17. APPORTIONMENT OF
RESPONSIBILITY BETWEEN OR AMONG
PLAINTIFF, SELLERS AND
DISTRIBUTORS OF DEFECTIVE
PRODUCTS, AND OTHERS
(a) A plaintiff' s recovery of damages for harm
caused by a product defect may be reduced if
the conduct of the plaintiff combines with the
product defect to cause the harm and the
plaintiff' s conduct fails to conform to generally
applicable rules establishing appropriate
standards of care.
(b) The manner and extent of the reduction
under Subsection (a) and the apportionment of
plaintiff' s recovery among multiple defendants
are governed by generally applicable rules
apportioning responsibility.
PRODUCT LIABILITY
9-34
§ 18. DISCLAIMERS, LIMITATIONS,
WAIVERS, AND OTHER
CONTRACTUAL EXCULPATIONS AS
DEFENSES TO PRODUCTS
LIABILITY CLAIMS FOR HARM TO
PERSONS
Disclaimers and limitations of remedies by
product sellers or other distributors, waivers by
product purchasers, and other similar contractual
exculpations, oral or written, do not bar or reduce
otherwise valid products liability claims against
sellers or other distributors of new products for
harm to persons.
§ 19. DEFINITION OF "PRODUCT"
For purposes of this Restatement:
(a) A product is tangible personal proper ty
distributed commercially for use or
consumption. Other items, such as real
proper ty and electricity, are products when the
context of their distribution and use is
sufficiently analogous to the distribution and
use of tangible personal proper ty that it is
appropriate to apply the rules stated in this
Restatement.
(b)
Services,
even
when
commercially, are not products.
provided
(c) Human blood and human tissue, even when
provided commercially, are not subject to the
rules of this Restatement.
Questions and Notes
1. A scholar of product liabilty law sees in the
recent adoption of the Restatement (3d) of Torts
(Product Liability) an opportunity to re-examine
the fundamental purposes of tort law. See M.
Stuart Madden, Selected Federal Tort Reform and
Restatement Proposals Through the Lenses of
Corrective Justice and Efficiency, 32 G A . L. R EV .
1017 (1998).