GONZAGA LAW REVIEW
VOLUME
5
SPRING
1970
NUMBER
2
PRODUCTS LIABILITY
IN PERSPECTIVE
William L. Prosser*t
The general idea, as I understand, is that I am to ramble
around for awhile on the subject of products liability-where we
are, and where we are going. I am well aware that many of you have
afternoon engagements, and if anybody wants to walk out at any
time-in fact, if whole blocks of the audience wish to walk out-I
shall fully understand and not be annoyed in the least. So, let us
begin.
Products liability from the plaintiff's standpoint offers three
possible theories of recovery. The first of these is negligence-that
the defendant, whoever he may be, retailer, wholesaler, manufacturer, has not used reasonable care in making or marketing the
product. This, of course, is an old friend, something that everyone
was taught in law school. It goes back to 1916, when that rare
phenomenon occurred-a Scotsman bought what was then an expensive motor car. The case fell into the hands of Judge Cardozo of
the Court of Appeals of New York. In MacPherson v. Buick Motor
Company,' it was held that the manufacturer owed a duty of reasonable care to the ultimate consumer or user of the car. That was
* Professor of Law, University of California, Hastings College of Law.
t This text is derived from an address delivered by Dean Prosser to the Spokane
County Bar Association at Spokane, Washington, on November 21, 1969. The text
conforms to the spoken words of Dean Prosser, with the following changes and
additions:
(1) Such technical alterations in the text as have been necessary to transcribe
the spoken words to the pages of the Review have been made.
(2) Where appropriate, footnote citations have been added by the editors. For
these footnotes the speaker is in no way responsible.
For Dean Prosser's comprehensive treatment of the development of the law
of products liability, see Prosser, The Assault Upon the Citadel, 69 YALE L.J. 1099
(1960), and Prosser, The Fall of the Citadel, 50 MINN. L. Rav. 791 (1966). See also
PRossER, Tna LAW OF ToRTs 672-85 (3d ed. 1964).
1 217 N.Y. 382, 111 N.E. 1050 (1916).
GONZAGA
LAW REVIEW
[Vol. 5:157
gradually extended and expanded in ways that you are all familiar
with. Among other things, it was extended to include injuries to
mere bystanders2 and collisions with other vehicles,8 and it became
quite well established. I think Mississippi was actually the last
state to accept the negligence cause of action without privity of
contract, 4 and actually it never did accept it-it jumped right over
it to strict liability.5 But I have no doubt that Mississippi would
accept liability for negligence. This is still a very live cause of action
from the standpoint of the plaintiff. It has been largely replaced
by the other two theories-warranty and strict liability in tort.
Nevertheless, it is still available in every jurisdiction; and because
these other theories are still relatively new and lawyers are not
very sure of their ground, they tend to plead and attempt to prove
negligence. Of course, if they can succeed in proving negligence, this
is likely to have its effect on the jury in terms of the damages and
the tendency to give the plaintiff, rather than the defendant, the
breaks. For that reason alone, if nothing else, it is quite likely that
negligence will continue to be pleaded and attempted to be proved
for a great many years to come. It is by no means a dead letter.
There are also a few small particulars in which negligence quite
possibly will accomplish something which the strict liability theories
will not. One of them is where a product is sold which is in no way
defective-it is well made and is what it purports to be-there is
absolutely nothing wrong with it as a product. But the seller of that
product is under a duty to give directions for its use, or warnings as
to its dangers, and if he fails to do so you have, strictly speaking,
neither a case of strict liability nor warranty, but a case of the
seller's negligence. Consequently, where directions for use and duty
to warn are in the picture, as they are to an increasing extent nowadays, negligence has been, and still is, the favorite cause of action.
Another feature is that negligence will always protect the
person I have called by the generic name of "bystander"-the man
who has not purchased the product, is not using it, is not consuming
2 See, e.g., Reed & Barton Corp. v. Maas, 73 F.2d 359 (Ist Cir. 1934); McLeod
v. Linde Air Products Co., 318 Mo. 397, 1 S.W.2d 122 (1927); Hopper v. Charles
Cooper & Co., 104 N.J.L. 93, 139 A. 19 (1927).
3 See, e.g., Sutton v. Diimmel, 55 Wn. 2d 592, 349 P.2d 226 (1960) ; Markel v.
Spencer, 5 App. Div. 2d 400, 171 N.Y.S.2d 770 (1958), aff'd on rehearing 5 N.Y.2d
958, 184 N.Y.S.2d 835, 157 N.E.2d 713 (1959) ; Washburn Storage Co. v. General
Motors Corp., 90 Ga. App. 380, 83 S.E.2d 26 (1954).
4 For some unaccountable reason Mississippi continued to avoid express acceptance of the MacPherson rule. See PROSSER, THE LAW oF TORTS 661 n.30 (3d ed.
1964), and cases cited therein. Prior to 1962, a similar situation existed in Virginia.
Id. This was changed, however, by statute. VA. CODE, 1962 Cum. Supp. § 8:654.3.
5 State Stove Mfg. Co. v. Hodges, 189 S.2d 113 (Miss. 1966), cert. denied, 386
U.S. 912 (1967).
Spring, 1970]
PRODUCTS LIABILITY
it, has nothing to do with it, but is simply around in the vicinity of
its probable use. The man on the sidewalk who is hit when the
steering gear of the car breaks and the automobile comes up and
rams him in the rear-that sort of fellow.' Since about 1918 he
has been allowed to recover for negligence. As I am going to mention
later, there is considerable dispute at the present time as to whether
he has any cause of action in strict liability. If you happen to be in
a state where he has not, or where there is doubt about it, then
negligence is the obvious choice of action, provided you can prove
it.
Negligence is aided by res ipsa loquitur if the plaintiff can prove
that he was injured by the product, that there was something wrong
with the product, and if he can trace that defect in the product
back into the hands of the particular seller he is suing. If he can
accomplish these things he usually makes out a res ipsa loquitur
case, and if does make out a res ipsa loquitur case, as all of the
trial lawyers within the sound of my voice are well aware, the jury
almost always returns a verdict for the plaintiff. If the plaintiff gets
that far, it is a rare phenomenon, although of course not an unknown one, that the jury brings in a verdict for the defendant.
So much for negligence.
The second cause of action is the old sales action for breach
of warranty. This began as a matter of direct warranties between
people who had dealt with one another by contract-a warranty on
the product from the seller to his immediate buyer. It began as a
matter of express representations about the product. With a long
lapse of time, over a great many centuries, implied respresentations
were worked out. The whole thing was between the immediate
parties and was codified under the Uniform Sales Act, now replaced,
of course, by the Uniform Commercial Code in practically all jurisdictions.
Warranty was a matter of contract, and in the absence of
privity of contract there could be no cause of action for
breach of warranty. In 1913, on the heels of prolonged agitation about defective food, three states7 proceeded to throw
overboard the ancient requirement that for an implied warranty there had to have been a contract between the parties.
Those states were Washington, which led off and was the
6 See, e.g., Gaidry Motors
Fox Bros. Buick Co., 196 Wis.
Zahn, 265 F.2d 729 (8th Cir.
Weirton Bus Co., 216 F.2d 404
7 Washington, Kansas and
v. Brannon, 268 S.W.2d 627 (Ky. 1954); Flies v.
196, 218 N.W. 855 (1928); cf. Ford Motor Co. v.
1959) (passenger in car); Carpini v. Pittsburgh &
(3d Cir. 1954) (passenger in bus).
Mississippi.
GONZAGA
LAW REVIEW
[Vol. 5: 157
first in the country to shed the privity requirement;8 then
followed Kansas9 and Mississippi.' Starting with these three states,
you began to get the development of a special rule applicable to
sellers of food. Whether they were manufacturers or dealers, anyone
who sold food was held to a type of special warranty that it-was fit
to eat. This special rule gradually extended until by, let us say,
1955, it was the predominant rule in the United States. It applied
without any privity of contract between the parties. If the defendant
manufactured food-if for instance, he bottled Coca Cola-and it
passed through the hands of a distributor and a retailer to a purchaser, and that purchaser gave it to his fiancee, and it turned out
that there was a dead mouse in the bottle, the warranty was held
to run to the ultimate consumer of the product.
Now this was a good deal of a freak. Actually, something like
twenty-nine different theories were evolved at one time or another
to sustain this conclusion," that there was liability without negligence and without privity of contract. They ranged from third party
beneficiary contracts, to fictitious agencies of the retailer to sell for
the manufacturer or buy for the consumer, and other such inventions. They were, for the most part, thoroughly unsound and invented for the sole purpose of justifying the result. Finally in, I
think, 1927, the Mississippi court came up with the theory of an
implied warranty running with the goods from the manufacturer to
the consumer-by analogy, to a covenant running with the land.' 2
Ever since then the courts that have talked warranty have relied
either on that theory or, more lately, on the theory of a direct
warranty implied by the law directly from the manufacturer to the
consumer.
At one time this was evidently the coming thing. The warranty
theory has several things in its favor. One is its recognition in the
Uniform Commercial Code, 3 which no longer insists on privity of
contract and which has been quite willing to extend the warranty to
plaintiffs who have not dealt with the defendant at all. Consequently,
you have a statute to back it up. In the second place, warranty
has various possibilities in terms of dealings between the parties.
You can, for instance, have express representations made by the
manufacturer of an automobile which are intended to be passed on,
and are in fact passed on, to the ultimate purchaser of the car. Here
Mazetti v. Armour & Co., 75 Wash. 622, 135 P. 633 (1913).
9 Parks v. G. C. Yost Pie Co., 93 Kan. 334, 144 P. 202 (1914).
10 Jackson Coca-Cola Bottling Co. v. Chapman, 106 Miss. 864, 64 So. 791 (1914),
11 See Gillam, Products Liability in a Nutshell, 37 ORE. L. Rav. 119, 153-55
(1957), which assembles no less than twenty-nine such theories.
12 Coca-Cola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305 (1927).
18 See UNiFORM COMMERacA. CODE §§ 2-314 and 2-315.
8
Spring, 1970]
PRODUCTS LIABILITY
again, the leading case was from Washington-Baxter v. Ford
Motor Company.' 4 In this case the Ford Motor people advertised
that the glass in their windshields was shatterproof-they call it
safety glass now days. This claim proved to be a grave mistake.
The Ford people had advertised shatterproof glass and the plaintiff,
as he testified, bought the car in reliance on that representation.
He was injured when a stone struck and shattered the windshield.
This express representation was held to be an express warranty,
running to the consumer, which made the defendant liable to him.
On rehearing, the court, much bothered by the various complications introduced by the Uniform Sales Act, proceeded to put the
thing on a strict liability basis for innocent misrepresentation, an
area in which the Washington court had already gone pretty far
in other cases. The result is that as to express warranties, there
were two possibilities: first, the warranty under the Sales Act, 5 and
second, strict liability for innocent misrepresentation.
By 1955 this had become the prevailing view in food cases.
For a long time there had been a lot of agitation from the professors,
to whom nobody paid much attention-a fate which professors
have often suffered, and sometimes deservedly so. The professors
had been agitating to throw overboard the limitation to food and
drink and to extend this thing to other products. It wasn't until
1956 that the Michigan court led off in doing so. The case was
Spence v. Three Rivers Builders & Masonry Supply, Inc.,"6 where
the plaintiff bought from a retailer cinder building blocks manufactured by the defendant and built his house with them. Now cinder
building blocks are not food, and they are not inherently dangerous;
they are perhaps the most uninspired product you could think ofthere is nothing very romantic or interesting about them. But they
collapsed, and so did the plaintiff's house, and the plaintiff brought
suit. The case fell into the hands of Justice Voelker, author of what
was once a popular best-seller, Anatomy of a Murder. Justice
Voelker held the defendant liable in warranty-implied warranty to
the ultimate consumer without privity of contract. He cited practically no cases; and there were those who said that as an opinion
writer, Justice Voelker was a very good movie scenario creator,
but no great legal authority. Nevertheless, this started the thing off.
By 1960, some eight jurisdictions had followed the Spence
case-the handwriting was on the wall as to where it was all going. 7
14 168 Wash. 456, 12 P.2d 409, 88 A.L.R. 521, aff'd on rehearing, 15 P.2d 1118
(1932).
15 See UNIFORm SALES AcT § 15.
16 353 Mich. 120, 90 N.W.2d 873 (1958).
17 Actually, through 1960, eleven jurisdictions had followed Spence. The pre-1960
cases included: B. F. Goodrich Co. v. Hammond, 269 F.2d 501 (10th Cir. 1959) (ap-
GONZAGA LAW REVIEW
[Vol. 5:157
The Restatement of Torts (Second) was actually drafted three
times in order to keep up with the progress of the whole story.
Originally it was drafted to apply only to food and drink. Then it
was revised to include products for what was called intimate bodily
use such as clothing, cigarettes, and other such things that touched
the person but which were not for internal consumption. Finally, it
was expanded to all products.' 8 This was in three consecutive years.
Being very much troubled about this hybrid warranty, the Restatement got rid of it. What has happened since is that warranty continued to gain; at one time about half the jurisdictions of the United
States found an implied warranty on products other than food and
drink. But in the meantime, the third possible cause of action had
erupted into the picture. It started when the Restatement of Torts,
bothered by warranty, stated the defendant's liability in ordinary
tort terms, without making use of the word "warranty" at all. It
said, in effect, that anyone who markets a product, expecting that
it will be passed into the hands of an ultimate user or consumer
without any change in its condition, and who markets it in a condition unreasonably dangerous to the user or consumer, is liable for
personal injuries to the user or consumer even without privity of
contract or any negligence on the part of the defendant.
Now this actually stated nothing more than had been stated
in the warranty cases. But it got rid of the word "warranty," and
with it all sorts of contract limitations which had hedged that word
about. Among the limitations were possible disclaimers, the requirement of reliance-that the ultimate purchaser must rely upon the
representation, or rely upon the defendant-and so on.
The first case to attempt to deal with this new development,
if you can call it that, was in California-Greenman v. Yuba Power
plying Missouri & Kansas law); Magee v. General Motors Corp., 124 F. Supp. 606
(W.D. Pa. 1954), aff'd, 220 F.2d 270 (3d Cir. 1955); Hinton v. Republic Aviation
Corp., 180 F. Supp. 31 (S.D. N.Y. 1959) (applying California law); Beck v.
Spindler, 256 Minn. 543, 99 N.W.2d 670 (1959); Jarnot v. Ford Motor Co., 191 Pa.
Super. 422, 156 A.2d 568 (1959); Continental Copper & Steel Indus. v. "Red"
Cornelius, Inc., 104 So. 2d 40 (Fla. App. 1958).
In addition, those cases decided in the year 1960 included: Conlon v. Republic
Aviation Corp., 204 F. Supp. 865 (S.D. N.Y. 1960) (applying Michigan law);
Taylerson v. American Airlines, 183 F. Supp. 882 (S.D. N.Y. 1960); McQuaide v.
Bridgeport Brass Co., 190 F. Supp. 252 (D. Conn. 1960) (applying Pennsylvania
law); Siegel v. Braniff Airways, 204 F. Supp. 861 (S.D. N.Y. 1960) (applying Texas
law); Peterson v. Lamb Rubber Co., 54 Cal. 2d 339, 5 Cal. Rptr. 863, 353 P.2d
575 (1960); Pabon v. Hackensack Auto Sales, Inc., 63 N.J. Super. 476, 164 A.2d
773 (1960); Henningsen v. Bloomfield Motors, 32 N.J. 358, 161 A.2d 69, 75
A.L.R.2d 1 (1960); General Motors Corp. v. Dodson, 47 Tenn. App. 438, 338
S.W.2d 655 (1960).
18 See RESTATEMENT (SECOND)
Or ToRTs § 402A (1965).
Spring, 1970]
PRODUCTS LIABILITY
Products, Inc. 9 The defendant made a combination power tool
called a "Shop-Smith," which could be used as a lathe, a saw, a
plane, all sorts of things-it would do everthing but shine your
shoes. It was sold through a dealer and ultimately reached the
plaintiff. While the plaintiff was operating the machine as a lathe,
it let fly a piece of wood that hit him in the head and injured him.
He brought suit, and what he encountered immediately was the
fact that he had given no notice to the defendant of any breach
of warranty within the required time of the Uniform Sales Act. The
defendant tried to escape liability on the ground of lack of notice.
Justice Traynor said, in effect, that this was not a case of warranty,
but rather a case of ordinary strict liability in tort, and he proceeded to rely on the Restatement theory. In other words, he threw
overboard warranty, he threw overboard the notice requirement,
and, by implication, he threw overboard disclaimers and all other
such things that affected warranty.
Warranty never had been anything but a rather transparent
device to accomplish strict liability anyway, and in that respect,
this was a clear-cut development. It was, of course, not a popular one
with the defendants who clung to such things as notice of breach
of warranty, disclaimers, and the like. Nevertheless, Traynor's
opinion has been followed. At the last count that I have made, and
this is not very up-to-date, there were some thirty-four jurisdictions
which had accepted this theory of strict liability in tort.20 There
is no doubt that this is the coming thing in law, not only of the
present but also of the immediate and distant future. Those who
do not like it, and many defense attorneys do not, will have to live
with it for a long time to come.
Now, talking mainly about strict liability in tort, I should
like to spend the rest of my time here discussing two or three
problems which, to me at least, are the more or less unsolved
questions-the difficult questions-surrounding liability without
negligence and without privity between a seller of products and the
ultimate consumer or user, or anyone else. Actually, a great many
questions have arisen, but most of them have been .rather simple
19 59 Cal. 2d 57, 27 Cal. Rptr. 697, 377 P.2d 897 (1963).
20 At last count there were only seven states not applying strict liability either
as a warranty or outright in tort: Idaho, Maine, Maryland, Massachusetts, New
Mexico, Utah and West Virginia. The states most recently making the change-over
were Rhode Island, Alaska, New Hampshire and North Carolina; see Klimas v.
Int'l Tel. & Tel. Co., 297 F. Supp. 937 (D. R.I. 1969) (federal court guessing at state
law) ; Clary v. Fifth Ave. Chrysler Center, Inc., 454 P.2d 244 (Alas. 1969) ; Buttrick
v. Arthur Lessard & Sons, Inc., 260 A.2d 111 (N.H. 1969); Tedder v. Pepsi-Cola
Bottling Co. of Raleigh, 270 N.C. 301, 154 S.E.2d 337 (1967) (limited recognition).
GONZAGA LAW REVIEW
[Vol. 5:157
to solve, and have been solved by such a mass of decisions that
there is no longer much of a problem. For example, there is the
question of what defendants this would apply to. The answer
seems fairly clear that it applies to any defendant who is engaged
in the business of selling such a product and does sell it. The manufacturer, the wholesaler, the retailer, anyone in the business-this is
a merchant's liability. It does not apply to anyone who is not in
the business of selling-a housewife who sells a jar of jam to her
neighbor is not going to be held strictly liable. Nor is the private
individual who trades in his car for a new model and makes what
you might call a sale to the dealer, since he is not in the business of
trading in cars. Nor does it apply to the dentist who is using a
pneumatic drill which breaks and injures the patient's jaw, since
he is not in the business of selling pneumatic drills. Questions like
that have been worked out fairly easily, but there are three about
which there is trouble. I want to talk about them and offer some
guesses as to where we'll wind up.
The first question is, "what products?" Well, all kinds of
products; there is practically no type of product that has not appeared in a strict liability case. Everything from washing machines
to paper cups-it doesn't matter what it is that the defendant is
selling. But, there is a somewhat more difficult problem lying behind
that. What is to be done about the product which is inherently
unsafe-the kind of product which, in our present state of scientific
knowledge, and in our present development of the art, we do not
know how to make safe, so that it is virtually impossible to produce
a safe product of that type?
Take, for instance, the sale of blood for transfusion purposes.
Blood is commonly-but not so commonly as all that-infected
with hepatitis. Of course the person who is given the transfusion
comes down with hepatitis, is made seriously ill, and may even die.
No known method at the present time, of which I have any information, will permit the seller to produce blood, which has come from
donors, which is free from the possibility of hepatitis infection;
moreover, no know method will cure it. Now, I may already be outof-date, because I understand that various methods are being
experimented with, among them, radiation of the blood which will
get rid of the hepatitis infection; but on the other hand, it is likely
to do such other damage to the blood that people have been encouraged to go quite slow with it. Nevertheless, such a development
may ultimately be the answer to the whole hepatitis problem. Take
the situation as it now stands; the seller of the blood is simply
unable to provide a safe product by any known methods or means.
Now, is he to be liable for breach of warranty, or is he to be
Spring, 1970]
PRODUCTS LIABILITY
strictly liable in tort without any negligence to the ultimate user
or consumer? On this the cases have been struggling.
The first result was that a good many cases held that there was
not even a sale. The blood transfusion was a hospital service; the
blood was not actually sold as one sells an automobile in the
market-place. It was simply injected as part of a service. 2 Now that
is rather nonsensical. The hospitals certainly bill the patient for the
blood as a separate item, and certainly title passes to him once
it gets into his system. It's as much a part of him as the food which
he eats in a restaurant, and nobody has any doubt any more that
that is a matter of sale-it is fairly obvious that this was a fiction.
Then you began to get blood banks who sold to the hospital, which
in turn gave the blood in transfusion to the plaintiff; the plaintiff
sued the blood bank because it had definitely made a sale. It had
charged for it, and there could be no argument that there was, in
fact, a sale. Consequently you had all the arguments of warranty
under the Uniform Commercial Code, and you had the problem of
strict liability in tort. The courts, a few of them at least, were
forced to face up to the proposition: What do you do when you
simply cannot make the product safe? Is the seller, as an incident
of the enterprise in which he is engaged, to bear the losses, to insure
against such losses and pass the whole thing on to the public by
means of the insurance premiums?
This is a wonderful theory and popular with a great many
professors; but actually, it's rather drastic to a lot of fairly small,
poor sellers who would be up against the wall. I should think that
the cost of the insurance might very well be prohibitive in the case
of a small-town blood bank; and if it were not, I think that the price
of blood would go up to the point where it would be rather difficult
for the patients to obtain. However, that's all speculation. The
cases have been virtually unanimous in these blood bank cases in
saying that in the absence of negligence-negligence has been found
in some cases in not investigating the donors sufficiently-there is
no strict liability in tort and there is no breach of warranty. In short,
this is just the patient's hard luck.
Of course you can go considerably further than the transfusion
21 See White v. Sarasota County Pub. Hosp., 206 So. 2d 19 (Fla. App. 1968);
Lovett v. Emory Univ., Inc., 116 Ga. App. 281, 156 S.E.2d 923 (1967); Balkowitsch
v. Minneapolis War Memorial Blood Bank, 270 Minn. 151, 132 N.W.2d 805 (1965);
Hubbell v. S. Nassau Communities Hosp., 46 Misc. 2d 847, 260 N.Y.S.2d 539 (1965);
Koenig v. Milwaukee Blood Center, Inc., 23 Wis. 2d 324, 127 N.W.2d 50 (1964);
Dibblee v. Dr. W. H. Groves Latter-Day Saints Hosp., 12 Utah 2d 241, 364 P.2d
1085 (1961); Gile v. Kennewick Pub. Hosp. Dist., 48 Wn. 2d 774, 296 P.2d 662
(1956); Perlmutter v. Beth David Hosp. Dist., 308 N.Y. 100, 123 N.E.2d 792 (1954).
GONZAGA LAW REVIEW
[Vol. 5:157
of blood. What about whiskey? It's really rather dreadful stuff;
it causes all sorts of things from drunken driving to cirrhosis of the
liver. It kills a lot of people, and its evils were once the subject of
a political party which is still in existence and an amendment to
the Constitution which is not. Is the manufacturer of good whiskey
-and I mean good whiskey, and not whiskey which is full of old
cigar stubs and things like that, or diesel oil or strychnine or
arsenic-is the manufacturer of good whiskey to be liable for all
the harm which it does?
Well, there are Dram Shop Acts which make the retailer
virtually liable when he sells to a person who is already intoxicated.
But suppose that the seller does not sell to an intoxicated man;
suppose he just sells a bottle of Haig & Haig over the counter, and
the man comes down with chronic alcholism from drinking it. Is
the seller going to be liable? What about sugar which is deadly
poison to diabetics? What about butter which, according to the
medical theory in vogue, deposits cholesterol in your arteries and
brings on heart attacks? Is the seller of butter to be liable for the
heart attacks, particularly if the plaintiff is very fond of butter
and consumes excessive quantities of it over the years? What are
you going to do with all kinds of drugs-many of them new and
quite experimental, whose dangers and characteristics are only partially known or perhaps not known at all? Have in mind that, in
terms of drugs, the two greatest benefactors to the human race, in
my life-time, have been penicillin and cortisone. Both of those
drugs involve serious dangers to some users. There is nothing that
can be done; there is nothing known to science which can remove
those dangers from those drugs at the present time. Are the suppliers of penicillin and cortisone to be liable for all the unpleasant
and disagreeable things which may happen to those who use the
drugs?
Such cases as have come along have said that unless there
is something in the way of negligence in the picture-failure to
make appropriate tests; failure to make proper investigation of
the drug before it is marketed; failure to give due warning as to the
possible dangers-unless there is some negligence in failing to do
that, then there is no strict liability for such products.2 2 You cannot impose strict liability upon a man who sells what appears to
be a perfectly reputable product and is actually extremely beneficial to the human race; you cannot make him strictly liable because
once in a while something goes wrong with it in a way which he
cannot prevent.
22 See, e.g., Butler v. Travelers Ins. Co., 202 So. 2d 354 (La. App. 1967)
(defendants not liable for tetanus contracted from penicillin injection).
Spring, 1970]
PRODUCTS LIABILITY
That brings us, of course, to cigarettes and lung cancer. There
were four cases on cigarettes and lung cancer and they went four
23
different directions. A Pennsylvania case-the Pritchard case
placed strict liability on the manufacturer's cigarettes for lung
cancer. Two cases, one in Louisiana24 and one in Missouri, 25 denied
that there was any liability. The last one, in the fifth circuitGreen v. American Tobacco Company2 6 -went through an almost
unique comedy of errors. The fifth circuit proceeded to refer the
matter to the Florida Supreme Court under a curious procedure they
have down there, and asked for a statement of Florida law. They
asked all of the questions except the right one." The Supreme
Court of Florida carefully answered these questions, and pointed
out that it wasn't answering the right one because it had not been
asked.2" The court then left everything to the jury which returned
a verdict for the plaintiff. On various motions for a rehearing the
case went back and forth, and finally the whole matter was sent
down for a re-trial. The jury apparently disposed of the matter by
returning a verdict for the defendant, whereupon, on one more appeal, the fifth circuit proceeded to reverse that and hold for the plaintiff as a matter of law.2 9 Then, on rehearing, it changed its mind and
ordered final judgment for the defendant.3 0 So much for these
questions; they are not settled. Are there products which are so
bad and so dangerously unfit for use that anybody who puts them
on the market, unaware of the inherent danger, is going to be
strictly liable? Is there any sort of limit on the rule that as long
as you can't do anything about the product you are free to market
it? Is there such a thing as negligence, or even strict liability, for
putting on the market something that ought not to be there at
all? I can't answer such questions; I don't know.
The second question I want to explore is: "What about the
bystander?" The warranty theory and the strict liability in tort
theory both originated as a matter of liability to the ultimate user
23 Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d 292 (3d Cir. 1961). On
a second trial the jury found for the defendant, and this was again reversed, for
error in instructing on assumption of risk, when there was no evidence that the
plaintiff was aware of the risk. Pritchard v. Liggett & Meyers Tobacco Co., 350
F.2d 479 (3d Cir. 1965). See Prosser, The Fall of the Citadel (Strict Liability to the
Consumer), 50 MnN. L. Rav. 791, 812 n.111 (1966).
24 Lartigue v. R. J. Reynolds Tobacco Co., 317 F.2d 19 (5th Cir. 1963).
25 Ross v. Philip Morris & Co., 328 F.2d 3 (8th Cir. 1964).
26 304 F.2d 70 (5th Cir. 1962).
27 The question put to the Florida Supreme Court was whether Florida law
would imply a warranty when the defendant could not have know that the product
was dangerous. The "right" question should have been: Is there a breach of warranty
when a product in common use has inherent dangers which cannot be eliminated?
28 Green v. Am. Tobacco Co., 154 So. 2d 169 (Fla. 1963).
29 Green v. Am. Tobacco Co., 391 F.2d 97 (5th Cir. 1968).
30 Green v. Am. Tobacco Co., 409 F.2d 1166 (5th Cir. 1969).
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or consumer of the product. "User or consumer," in a very broad
sense, means somebody who has something to do with the product
in some manner resembling use. There was a case down in California where a man walking down the corridor walked into a
practically invisible glass door and walked right through it and
cut himself. The court called him a user of the door; you can see
that he was-he was using it to walk through. There was a case
in Illinois where a husband had bought rabbits for supper." His
wife was cooking the rabbits for him, although she didn't like rabbit
and wasn't going to eat them herself. While cooking them she contracted tularemia, and the court said she was a user of that product.
A repairman working on the wheel of a car has been held to be a
user. A passenger in an airplane 32 or an automobile 3 is a user.
You don't have any trouble in finding liability without privity of
contract to such people as these. But what about the man who is
just standing on the sidewalk when the Buick wheel breaks and
the car comes up and rams him in the rear? He never even sees it,
yet wakes up in the hospital. What about him?
Now, as far as negligence is concerned, there hasn't been any
trouble since 1918. Any defendant who is negligent along the chain
of sales is going to be liable to a plaintiff. But, do you have this
strict liability to a person with whom the defendant has had no
dealings and whom he cannot even contemplate as someone likely
to use the product? On that, the cases have split. They began with
a set of decisions saying that these rules of warranty were not
intended to apply to anybody but a user or consumer. At one stage
of the game there was a considerable majority in favor of the position that there was no strict liability to the bystander. Then the
reaction in the other direction set in. The leading case, I think,
was Piercefield v. Remington Arms Company,3 4 a Michigan case
wherein the plaintiff was standing alongside a man who was shooting a Remington shotgun. The shotgun exploded and the plaintiff
was injured. The Michigan court said there was an implied warranty running to him, even though he was not using the shotgun,
wasn't interested in it, and had no concern with it.
Piercefield was followed by various other decisions. 5 There
Haut v. Kleene, 320 11. App. 273, 50 N.E.2d 855 (1943).
See, e.g., Pub. Admin. v. Curtiss-Wright Corp., 224 F. Supp. 236 (S.D. N.Y.
1963); Ewing v. Lockheed Aircraft Corp., 202 F. Supp. 216 (D. Minn. 1962); King v.
Douglas Aircraft Co., 159 So. 2d 108 (Fla. App. 1963); Goldberg v. Kollsman
Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81 (1963).
33 See, e.g., Thompson v. Reedman, 199 F. Supp. 120 (E.D. Pa. 1961).
34 375 Mich. 85, 133 N.W.2d 129 (1965).
35 See, e.g., Elmore v. Am. Motors Corp., 70 A.C. 615, 75 Cal. Rptr. 652, 451
P.2d 84 (1969); Darryl v. Ford Motor Co., 440 S.W.2d 630 (Tex. 1969); McCormack
31
32
Spring, 1970]
PRODUCTS LIABILITY
was a very striking one down in California-Elmore v. American
Motors Corp.36-this year, where American Motors made a car
which Mrs. Elmore was driving. Suddenly, a large chunk of the
bottom fell out and dragged along the highway. The driver lost control of the car, veered onto the left side of the highway and
rammed head-on into Mrs. Waters. The suit was brought by Mrs.
Waters who was 'in the position of what I call a bystander. The
California Supreme Court, Justice Peters writing the opinion, proceeded to say that strict liability in tort as applied in California
would allow Mrs. Waters to recover. She didn't have to be a user
or consumer of the car which hit her. It was enough that she was
in the path of the probable use of the car and was forseeably to
be injured in case anything went wrong with it. In other words, a
negligence theory was applied to the strict liability. The bystander
cases are mushrooming all over and I would say that the split at
the present is probably about fifty-fifty. 7 That's just an estimate;
I haven't made any accurate count as to how the cases go.
It's rather difficult determining what the rule ought to be. If
your theory is that strict liability is imposed with the idea of
making the enterprise bear the cost of all resulting harm inflicted
upon anybody-making the enterprise insure against that and distribute the cost by means of insurance premiums to others engaged
in the enterprise, and adding that cost to the price to the public in
general-if that's your theory, then there is not the slighest reason
to distinguish between injury to Mrs. Elmore, who was driving
the car, and Mrs. Waters, who was hit by it. It became quite impossible to work out any kind of distinction. As Justice Peters said,
Mrs. Waters is more entitled to protection because she is completely helpless, whereas Mrs. Elmore could have at least picked
the kind of car she purchased.
v. Hankscraft Co., 278 Minn. 322, 154 N.W.2d 488 (1967); Mitchell v. Miller, 26
Conn. Supp. 142, 214 A.2d 694 (1965).
36 70 A.C. 615, 75 Cal. Rptr. 652, 451 P.2d 84 (1969).
37 Cases allowing recovery by a bystander: Deveny v. Rheem Mfg. Co., 319
F.2d 124 (2d Cir. 1963); Brown v. Chapman, 304 F.2d 149 (9th Cir. 1962); Sills
v. Massey-Ferguson, Inc., 296 F. Supp. 776 (N.D. Ind. 1969); Hacker v. Rector,
250 F. Supp. 300 (W.D. Mo. 1966); Montgomery v. Goodyear Tire & Rubber Co.,
231 F. Supp. 447 (S.D. N.Y. 1964); Elmore v. Am. Motors Corp., 70 A.C. 615,
75 Cal. Rptr. 652, 451 P.2d 84 (1969); Lily-Tulip Cup Corp. v. Bernstein, 181 So.
2d 641 (Fla. 1966); Haley v. Merit Chevrolet, Inc., 214 N.E.2d 347 (Ill. App. 1966);
Wagner v. Larson, 136 N.W.2d 312 (Iowa 1965); Piercefield v. Remington Arms
Co., 375 Mich. 85, 133 N.W.2d 129 (1964); Connolly v. Hagi, 24 Conn. Supp. 198,
188 A.2d 884 (1963); Jakubowski v. Minn. Mining & Mfg. Co., 80 N.J. Super.
184, 193 A.2d 275 (1963).
Cases denying liability: Mull v. Colt, 31 F.R.D. 154 (S.D. N.Y. 1962); Kuschy
v. Norris, 25 Conn. Supp. 383, 206 A.2d 275 (1964); Hahn v. Ford Motor Co., 126
N.W.2d 350 (Iowa 1963); Rodriguez v. Shell's City, Inc., 141 So. 2d 590 (Fla. App.
1962).
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On the other hand, if your theory is that the defendant, in
selling this product, has somehow represented to possible purchasers
of the product and to users and consumers, that it is fit for useif he has invited their purchase or use or consumption in reliance
upon that representation, and if they have bought in reliance upon
that representation-then it is very hard, indeed, to justify a recovery by the bystander. He has relied upon nothing. He is not
the kind of person who the defendant has been seeking to reach;
no representation has been made to him expressly or impliedly. He
has done nothing except to be there when the accident happened.
Did you ever know any plaintiff who wasn't there when the accident happened? In other words, all this man is is a plaintiff, and
that's his only qualification on this theory. The courts are going
to be compelled to make up their minds as to what they are trying
to do. Are they adopting a so-called socialistic theory, a compulsory insurance, risk distribution and so on? Or are they going to
adopt the theory that this thing is justified by the defendant's
conduct in putting the product on the market, and representing
to the public that it is fit for use? On the cases so far there has
been about an even split. This is another problem that we are
going to have to work out and settle, and you will probably hear
a good deal of it during your lifetime. I may not live long enough
to see it settled, but some of you at least will.
The third problem I want to talk about is: "What is to be
done about pecuniary loss?" Suppose that the plaintiff buys an
automobile-and in order not to be invidious and start naming
manufacturers, let us say he buys a Mercedes-and it turns out
that the car is a lemon. Our man pays, let us say, $5,000 for that
car, and it has so many defects that it is worth not more than
$2,000. Can he recover, without proof of any negligence on the
part of anybody, that loss of $3,000--the pecuniary loss-the loss
of the bargain? If so, from whom?
This has gone both ways in a lot of cases. Where there is an
express warranty in the picture the cases are pretty generally agreed
that the plaintiff can recover for pecuniary loss from anyone who
has made him that express warranty. But where there is no express
warranty, and he is suing on implied warranty, or better still,
where he is suing on this theory of strict liability in tort, then he
has his difficulties. About half of the cases have held that he can
recover for the pecuniary loss. About half of them have held that
he cannot. Perhaps the leading case holding he cannot is Seely v.
White Motor Co.,38 a California case in which Justice Traynor
38 63 Cal. 2d 9, 403 P.2d 145 (1965).
Spring, 1970]
PRODUCTS LIABILITY
returned to the fray once more, and denied recovery when a truck
turned out to be defective and wouldn't do the job. Now if you
stop to analyze this and you think about loss of the bargain, which
is what you are suing for, you will have a problem. The plaintiff's
pecuniary loss of the bargain depends upon what the bargain is.
What price did he pay? I gave the illustration of paying $5,000
for the Mercedes and getting a car worth only $2,000. Now on its
face that is deceptively simple. It has proved so deceptively simple
that it has taken in some of our courts.
Suppose, on the other hand, that our purchaser is overcharged
by the dealer and pays $7,000 for that car. He has, of course, a
$5,000 loss now, instead of a $3,000 loss. But how much of that
$5,000 is to be attributed to the manufacturer who put a defective
car onto the market in the first place? How much of it is to be
attributed to the dealer who overcharged the plaintiff when he sold
him the car? When you realize that on most automobile sales now
there is a trade-in of an old car and a dealer's allowance made,
the problem of the fair allowance and the marked-up price gets
into the picture. You realize that this becomes a rather difficult
problem to work out. Furthermore, if there is nothing wrong with
the car at all, and the plaintiff is overcharged, he has suffered an
economic loss. Of course he can't pass that back to the manufacturer, because there was nothing to charge the manufacturer
with. The difficulties here appear to be so great that I would guess
the ultimate answer is that this problem of pecuniary loss is something that ought to be worked out between the plaintiff and the
retail dealer from whom he purchases the car in the first instance.
In other words, he should sue the dealer and establish his loss, and
then the dealer would pass on whatever portion of it he is justified
in passing on to the manufacturer. It ought to be a two-stage operation, rather than an attempt to struggle with the problems of proof
you have in one stage. However, I have to say that the cases are so
badly split, I can see no definite trend in that direction.
Editor's note: At this point the meeting was opened to questions from
the floor. Dean Prosser'sresponses to two such questions follow.
Question: Where a physician administers a drug to an infant,
making a separate charge for the drug, and the drug causes harm
to the child, what is your opinion as to the liability of the physician
and the applicability of the strict liability theory?
Dean Prosser: There have been some few decisions on the
subject and they have quite unanimously held that in the absence
of negligence, the physician is not going to be held liable. Now, of
course, he can be negligent if he picks the wrong drug or if he
GONZAGA LAW REVIEW
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negligently administers it and so forth. That is not what we are
talking about-we are talking about strict liability. All of the
cases I know of-and I think that there are about a half a dozen
altogether-have held that there is no strict liability under those
conditions. The usual backdoor through which the court escapes is
to say that this is not a sale, that even though a drug is billed by
the physician as part of his professional services, nevertheless he
is not in the business of selling that kind of a drug, nor has he
technically sold it. What he has done is to administer it as part of
his professional services. It is a service and not a sale. While I
think in many cases that it has been an escape through the backdoor, I would regard it as pretty well justified in this type of situation. I do not think that the doctor should be held in the absence
of some kind of negligence. I do not see why strict liability should
apply to him. One of our young men wrote a piece in the Hastings
Law Journal 9 not so long ago, recommending the doctor be held
strictly liable so that the cost could be passed on through him to
the manufacturer. I do not agree with this approach; but there it
is in the Hastings Law Journal embalmed for posterity, assuming
there is going to be any.
Question: Dean Prosser, in considering the defense of abnormal use to strict liability, do you think the courts should focus
on the reasonable, foreseeable use or upon the use that the manufacturer intended?
Dean Prosser: Well, I would have to make a distinction or
two. The manufacturer is entitled to expect a normal use of his
product by a normal user, in the absence of some reason to look
for something to the contrary. Of course, normal uses may include
a lot of things that are relatively unexpected. A woman stands on
a chair to reach a high shelf-this has been held to be a normal
40
use.
The question of what is normal becomes, I think, a question
of what the product is being supplied for, and what relatively unusual things you can expect. It certainly is not limited to what
the manufacturer intends the product to be used for. Take the case
here in Washington, Ringstad v. I. Magnin & Co.,4 where a woman
39 Comment, 17 HASTINGs L.J. 359 (1965).
40 Phillips v. Ogle Aluminum Furniture, Inc., 106 Cal. App. 2d 650, 235 P.2d
857 (1951). Other situations in which courts have found no "abnormal" use are:
Brown v. Chapman, 304 F.2d 149 (9th Cir. 1962) (dancing in hula skirt); Ringstad
v. I. Magnin & Co., 39 Wn. 2d 923, 239 P.2d 848 (1952) (wearing cocktail robe in
kitchen near stove); Maddox Coffee Co. v. Collins, 46 Ga. App. 220, 167 S.E. 306
(1932) (eating coffee).
41 39 Wn. 2d 923, 239 P.2d 848 (1952).
Spring, 1970]
PRODUCTS LIABILITY
bought a cocktail robe and wore it in the kitchen in proximity to a
gas stove. As she leaned over the stove, the robe, being highly inflammable, caught fire and she was injured. I. Magnin attempted to
defend by saying that cocktail robes were not expected to be worn
in the kitchen, that they were not intended for that. Well, of course,
they got nowhere with that. A woman will wear whatever she is
wearing when she goes out and sees how things are cooking on
the stove. It was to be expected that the robe would come in contact with that kind of fire.
There was a case in Illinois, Hardman v. Helene Curtis Indus.,
Inc.,42 which involved another inflammable product. There was some
kind of cosmetic which got into the hands of a child who proceeded
to daub himself up with it. The product was highly combustible and
the child was seriously burned when he came into contact with a
fire. The manufacturer was held liable for providing something
which could get into the hands of children. There was no warning
on the bottle indicating that if it did get into the hands of children,
it would be dangerous to them in case they came in contact with
fire. It would be ridiculous to say that he intended that resulthe never intended it to be used by a child daubing himself up with
it-but there was certainly a foreseeable risk. At the same time, the
manufacturer is entitled, I think, to put warnings and directions
upon his products, and assume, in the absence of some reason to
think to the contrary, that these warnings and directions will be
followed.
There was Fredendall v. Abraham & Strauss, Inc.,43 where the
defendant sold a bottle of carbon tetrachloride-Carbona, or some
such product like cleaning fluid. He put warnings all over the
bottle and the literature which accompanied it: "Don't use this
stuff in a small closed room." The plaintiff, having read the
warnings proceeded to use the product in a small, closed bathroom. As it happened, the plaintiff had had a few drinks before
hand; and in case you do not know, carbon tetrachloride and
alcohol make about the most dangerous possible combination you
can get. The plaintiff was very nearly killed by all this, and the
manufacturer was held not liable. What more could he do? Carbon
tetrachloride is a reasonably safe cleaning fluid, assuming it is
properly used. He had given the warning. At this point you can say
that in the light of the warning, what he intended the product to
be used for is going to be controlling. Do you get the distinction?
Maybe I haven't made it very clear. He is under a duty to warn
42 48 I1. App. 2d 42, 198 N.E.2d 681 (1964).
43 279 N.Y. 146, 18 N.E.2d (1938).
174
GONZAGA
LAW REVIEW
against foreseeable things. He is under a duty to warn the woman
not to go near an open flame with the robe on; or not to use cleaning fluid in small, closed areas. Once he has given the warning, he
can assume that that warning has been followed. Here, I think, the
question of what is intended becomes important."
44 After beginning his answer by stating that "the manufacturer is entitled to
expect a normal use of his product by a normal user," Dean Prosser seems to come
to the conclusion that wherever there is a "foreseeable risk," the manufacturer has
at least the duty to warn, if not the absolute duty to make safe the product. For
example, tires that were intended by the manufacturer to be properly mounted should,
nevertheless, have been accompanied with warnings of any dangerious propensities.
See Barth v. B.F. Goodrich Tire Co., 265 A.C. 253, 71 Cal. Rptr. 306 (1968)
Cassetta v. U.S. Rubber Co., 260 Cal. App. 2d 792, 67 Cal. Rptr. 645 (1968).