Strict Liability

Front 1

[§ 1428] Background: Negligence and Warranty.

(1) Liability Based on Negligence.

The celebrated ___ ____ case of ___ v. ___ ____ Co. (____) ___ N.Y. ____, 111 N.E. 1050, established a ___ of ___ of a manufacturer of any potentially dangerous product to any person who might ___ be expected to be injured by it. (See supra, §1168.) This basis of liability, however, posed difficult problems of ___ of _____, and was subject to the defense of _____ ______.

Back 1

[§ 1428] Background: Negligence and Warranty.

(1) Liability Based on Negligence.

The celebrated New York case of MacPherson v. Buick Motor Co. (1916) 217 N.Y. 382, 111 N.E. 1050, established a duty of care of a manufacturer of any potentially dangerous product to any person who might foreseeably be expected to be injured by it. (See supra, §1168.) This basis of liability, however, posed difficult problems of proof of negligence, and was subject to the defense of contributory negligence.

Front 2

[§ 1428] Background: Negligence and Warranty.

(2) Liability Based on Warranty.

Liability on ____ ______ has long been recognized, irrespective of _____, where goods are sold. But (a) this liability is _____, and requires ____ between the person damaged by a defective article and the person liable; (b) ____ ____of breach of warranty must be given; and (c) warranties may be excluded by _____ in the contract of sale. (See 4 Summary (10th), Sales, §§84, 98, 199.)

Back 2

[§ 1428] Background: Negligence and Warranty.

(2) Liability Based on Warranty. Liability on implied warranty has long been recognized, irrespective of negligence, where goods are sold. But (a) this liability is contractual, and requires privity between the person damaged by a defective article and the person liable; (b) timely notice of breach of warranty must be given; and (c) warranties may be excluded by disclaimers in the contract of sale. (See 4 Summary (10th), Sales, §§84, 98, 199.)

Front 3

[§ 1428] Background: Negligence and Warranty.

(3) Warranty Without Privity. The principal obstacle to warranty recovery against a manufacturer was lack of ____ between it and the consumer who bought from a retail dealer. But progressive courts devised various theories to overcome the defense, first in food and drugs and cosmetics cases, and later in cases involving potentially dangerous industrial products. (See Rest.3d, Torts: ____ ____ §___, Comment __ [historical development of products liability]; Cal. Civil Practice, 2 Torts, Products Liability, Chap. 24; 4 Summary (10th), Sales, §§101, 112, 113.) This "warranty" without privity was not contractual warranty at all, but really a ___ ___ liability. (See ___ v. ___ ___& Co. (____) ____ C.A.2d ____, ___, 79 C.R. 369, footnote ___; Rest.2d, Torts §____, Comment m; 5 Harper, James & Gray 2d §28.16; Dobbs, The Law of Torts §351 et seq.; 63 Am.Jur.2d (1997 ed.), Products Liability §529; 67 Cal. L. Rev. 435 [Understanding Products Liability]; 18 Hastings L. J. 16; 17 Stanf. L. Rev. 1077 [policy bases of products liability].)

Back 3

[§ 1428] Background: Negligence and Warranty.

(3) Warranty Without Privity. The principal obstacle to warranty recovery against a manufacturer was lack of privity between it and the consumer who bought from a retail dealer. But progressive courts devised various theories to overcome the defense, first in food and drugs and cosmetics cases, and later in cases involving potentially dangerous industrial products. (See Rest.3d, Torts: Products Liability §1, Comment a [historical development of products liability]; Cal. Civil Practice, 2 Torts, Products Liability, Chap. 24; 4 Summary (10th), Sales, §§101, 112, 113.) This "warranty" without privity was not contractual warranty at all, but really a strict tort liability. (See Grinnell v. Charles Pfizer & Co. (1969) 274 C.A.2d 424, 433, 79 C.R. 369, footnote 3; Rest.2d, Torts §402A, Comment m; 5 Harper, James & Gray 2d §28.16; Dobbs, The Law of Torts §351 et seq.; 63 Am.Jur.2d (1997 ed.), Products Liability §529; 67 Cal. L. Rev. 435 [Understanding Products Liability]; 18 Hastings L. J. 16; 17 Stanf. L. Rev. 1077 [policy bases of products liability].)

Front 4

____ v. _____ Co.(N.Y. ___) ___ N.Y. ___, ___

Defendant was an automobile manufacturer who obtained wheels for its automobiles from a separate manufacturer. Defendant sold its vehicles to automobile retailers. Plaintiff purchased one of defendant's vehicles from a dealer. Plaintiff was riding in the vehicle when it collapsed and plaintiff was injured. Plaintiff sued defendant for negligence.

"If the nature of a thing is such that it is ___ ___ to place life and limb in peril when ____ made, it is then a thing of danger…If to the element of danger there is added ____ that the thing will be used by persons other than the ___, and used without ____ ____, then, irrespective of _____, the _____ of this thing of danger is under a ____ to make it carefully."

Back 4

MacPherson v. Buick Motor Co.(N.Y. 1916) 217 N.Y. 382, 390

Defendant was an automobile manufacturer who obtained wheels for its automobiles from a separate manufacturer. Defendant sold its vehicles to automobile retailers. Plaintiff purchased one of defendant's vehicles from a dealer. Plaintiff was riding in the vehicle when it collapsed and plaintiff was injured. Plaintiff sued defendant for negligence.

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…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.