Friday, December 30, 2005

Prosser on product liability

THE ASSAULT ON THE CITADEL
(STRICT LIABILITY TO THE CONSUMER)

WILLIAM L PROSSER

69 YALE LAW JOURNAL 1099
===================================================

This article is about the joining up of two forces: strict liability, and the loss of the requirement of privity. It also discusses how strict liability without privity for products is justified.

When product tort law was still negligence-based and had yet to switch to strict liability, privity was already under attack. (The early cases we read are negl cases: Winterbottom, MacPherson v Buick.)

In negl suits, privity began its decline early, in 1916, with Cardozo and MacPherson. Lack of privity was expanded in that case from the "inherently dangerous" test of Winterbottom to the "if negligently made, would be dangerous" Cardozo test.

(the rest has been moved to a comment below the fold...)

1 Comments:

Blogger Sean Strasburg said...

THE ASSAULT ON THE CITADEL
(STRICT LIABILITY TO THE CONSUMER)

WILLIAM L PROSSER

69 YALE LAW JOURNAL 1099
===================================================

This article is about the joining up of two forces: strict liability, and the loss of the requirement of privity. It also discusses how strict liability without privity for products is justified.

When product tort law was still negligence-based and had yet to switch to strict liability, privity was already under attack. (The early cases we read are negl cases: Winterbottom, MacPherson v Buick.)

In negl suits, privity began its decline early, in 1916, with Cardozo and MacPherson. Lack of privity was expanded in that case from the "inherently dangerous" test of Winterbottom to the "if negligently made, would be dangerous" Cardozo test.

Negl non-privity was extended in the 20's and 30's to property damage (rather than just personal injury), beyond the purchaser to protect his employees and the members of his family, subsequent purchasers, bystanders, etc.

As this battle developed, the attack on the need for privity in suits under the theory of strict liability began.

It happened first under food and drink. (Penalties against victualers had been under strict liability since statutes in the 13th and 15th century. But they were liable only to the immediate purchaser.) In America, breakdown of privity in food-strict-liability cases happened partly in response to the muckrakers and "The Jungle." At the time of writing (1960), most states had strict liability and no privity for food (some through court decisions, some through negl per se).

Following the food assault, the extension of strict liability to other products heated up in the 50's, but the idea of strict liability without privity was still contested. The breakdown started in the 50's in Missouri and California, where dogfood was found to fall under the food strict-without-privity exception, even though it couldn't cause human personal injury. KS and OH extended this in 1953-54 to articles for intimate external bodily use like hair dye and soap.

The most important breakthrough case was Spence v. Three Rivers Builders (353 Mich 120 (1958)) which found strict-liability-without-privity for makers of cinderblocks, which are awfully chewy for food. Lots of non-food cases followed.

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The arguments

Why isn't liability under negl enough? Why go for strict liability?

Strict liability usually doesn't matter! For product suit, P must
prove three things. The first two are
(1) his injury was caused by a defective product, and
(2) the defect existed at the time it left the hands of D.
These are the hard parts, and have nothing to do with the precise liability theory. The *easy* one is
(3) the defect was there because of D's negligence.
No one ever fails on (3), because P has res ipsa on his side, and juries love plaintiffs. So relaxing (3) to strict liability buys you nothing?

Prosser says it buys you more money: D will be more willing to settle if there is no uncertainty at *all* about (3), and evidence of D's considerable care (irrelevant under strict liability) can't shrink the jury's award. Also, strict liability lets you pin the blame on more people. Maybe the manufacturer can't be reached because of jurisdiction or bankruptcy. Then, you can pin it on the wholesaler, who wasn't negligent and can't be gotten with res ipsa, since most products can't really be inspected without destroying marketability. Also, at time of writing, warranties against last seller still had privity requirement, and so didn't protect buyer's family or guest.

It's unclear that strict liability induces manufacturers to make their products safer than they would be under mere negl. Also, strict liability really doesn't just codify the warranties of the best companies, since these are usually just for replacement. And it isn't a good argument that strict liability replaces the abuse of res ipsa to find non-negl D's guilty--that would be like saying that since circumstantial evidence is sometimes used in criminal cases to convict the innocent, we might as well find all criminal defendants guilty.

Better arguments for strict-liability-without-privity:

First, risk spreading. The manufacturers should absorb the costs of using their products because they are better able to do so, and distribute these costs. This is basically socialist, Prosser acknowledges.:) Goddamn commie!

Second, the public health demands maximum possible protection of the law against dangerous defects, and everyone in chain should be available to be sued.

Third, the supplier by placing goods on market has effectively said they are safe for use, and the middleman is really just a conduit.

Fourth, it is wasteful and sometimes impossible (e.g. bankruptcy) to run "up the chain" from purchaser to intermediaries to manufacturer. Why not go straight there?

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Warranties

Although early strict-liability-without-privity cases relied on "public policy", the theory that's winning the day (in 1960) is an implied warranty that runs with the product. This is an *extremely* strange hybrid of tort and contract law, and Prosser makes a lot of fun of it, Assault at 1126. This warranty theory has lots of remnants of K law: sometimes you can't get wrongful death damages, for example, and it sometimes requires that P rely on some representation (although this started to die in Greenman v Yuba (1963), the lathe brochure case). If you use the UCC as your guide for warranties, recovery is limited to injured members of the family (and certainly not someone who hasn't acquired the title to the goods--like a family friend--if the warranty runs with the title), and recovery is limited in scope. Furthermore, warranty liability is usually subject to disclaimers that can eviscerate the protection. (Again, see Greenman.)

Generally, warranty is a bad pigeonhole to force this new idea into.

----------------
Express language

If seller makes specific representations to the public about his wares, this may provide a different basis for strict liability, especially avoiding the privity requirement. In 1934, in Baxter v Ford, a manufacturer public claim that a windshield was "shatter-proof" made the maker strictly liable without privity. This
was under the action of "deceit", despite the lack of scienter or negligence.

Since this action turns not on the character of the goods, but on their representation, such decisions are not confined to food. But it's also limited to one who has relied on a specific representation.

--------------
What products?

Although food started it, this will spread. It's unclear how much, though: the "emotional appeal" of a roach in your coke may not exist for a defective automobile; plus, autos aren't consumed immediately, and the user has more of a chance to protect himself. The theory may not extend to products at the experimental stage. [Prosser underpredicted everything.]

-------------
What sellers?

This should only apply to those in the business of selling this particular good--not a housewife who sells a jar of jam to her neighbor. General agreement that it applies to retailer as well as manufacturer. Wholesalers were slow to be included, but are now.

----------------
What plaintiffs?

Only appies to consumers--not business purchasers, since they don't qualify for the "emotional appeal." Generally any employee or family member, or guest or donee, will be protected.

----------------------------
What damages? What defenses?

Personal injury damages are clearly included, but property losses are slower in materializing. Seller is entitled to expect a normal use of his product, so that he is not liable when it is mishandled. The seller may expect, within reasonable limits, that the product will be used by normal persons, so that he's not liable when someone has a thin skull. (This makes strict liability *less* plaintiff friendly than the traditional "defendant takes his victim as he finds him".) Thus, the question is primarily what the consumer and producer have the right to expect.

There has been little consideration of plaintiff's own unreasonable conduct as a defense. [See West v. Caterpillar.] Unclear if contributory negligence bars suit. May turn on whether this really is a warranty: if strict product liability is contract-like, how can contributory negligence be a defense when the action isn't based on
negligence to start with?

12:06 PM  

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