THE PROTECTION OF THE PURCHASER AND CONSUMER UNDER THE LAW OF THE U.S.A.*
| Author | Robert S. Pasley |
| Published date | 01 May 1969 |
| DOI | http://doi.org/10.1111/j.1468-2230.1969.tb02300.x |
| Date | 01 May 1969 |
THE
MODERN
LAW
REVIEW
Volume
32
May
1969
No.
3
THE PROTECTION
OF
THE PURCHASER
AND CONSUMER UNDER THE LAW
OF’
THE U.S.A.”
THE
subject of protection of the consumer of goods under American
law is such a broad area that anv treatment of
it
must necessarily
be selective. Accordingly,
I
have chosen as my topic the area
of
cc
products liability,” that is, the civil liability of the seller
or
manufacturer to the consumer
or
user who is injured by a defective
product. Even
so,
space permits only a general summary of the
subject, with many details passed over.
It
might be appropriate
to
open these remarks with a quotation
from the speech of
Lord
Atkin in the celebrated case of
Donoghue
v.
Stevenson
:
cc
It
is always a satisfaction to
an
English lawyer to be able to
test his application of fundamental principles of the common
law by the development of the same doctrines by the lawyers
of
the Courts of the United States.
In
that country
I
find that
the law appears to be well established
in
the sense in which
I
have indicated. The mouse had emerged from the ginger-beer
bottle in the United States before
it
appeared in Scotland, but
there
it
brought a liability upon the manufacturer.”
(His Lordship might better have said
cc
the Coca-Cola bottle.”
Few Americans have ever heard of ginger beer. But the number
of mice, snails, and other strange creatures which have allegedly
found their way into innocent (appearing
cc
coke
)’
bottles defies
belief
.)
In tracing the history of products liability in American law,
it
will be convenient to do
so
under three heads, negligence, breach
of warranty, and strict liability in tort. But
it
must be remem-
bered that these theories (especially the two last named) are not
always clearly distinguishable. There is considerable overlap and
mutual influence among them, and the question may well be raised
whether we are not moving in the direction of a unitary concept of
*
Based upon
a
Special University
Lecture
given at Queen
Mary
CoIlege,
University
of
London,
February
19, 1968.
[1932]
A.C.
562, 598.
291
VOL.
38
9
242
THE
MODERN
LAW
REVIEW
VOL.
32
products liability, in which such distinctions will become irrelevant.
For
the present, however, they are very much with us.
1.
NEGLIGENCE
For
almost
a
century, with some notable exceptions, American
law, like English, refused to extend liability in negligence for the
sale of a defective product beyond the immediate contracting
parties. The precedent uniformly cited in support df this restric-
tion
was the celebrated English case of
Winterbottom
V.
WVrightYa
decided in
1842.
What the actual holding of that case was, is for
present purposes irrelevant,-’ because what has been principally
remembered is Lord Abinger’s warning
:
cc
Unless we conhe the operation
of
suoh contracts
as
this
to
the parties who entered into them the most absurd and out-
rageous consequences,
to
which
I
can see
no
limit,
would
ensue.”
Alderson
B.
echoed these feam:
cc
The
only
safe rule
is
to
conhe
the right to recover to those who enter into the contract;
if
we go
one step beyond that, there
is
no
reason why we should
not
go
But the
courts
soon
began creating exceptions to the general
rule, of which the most important was that &he requirement of
privity of contract would be relaxed where the product which
caused the harm was
cc
inherently
yy
or
cc
imminently
”
dangerous
to
human life
or
health. The leading case is from New
York,
where
as far back as
1852
it
was held, in
Thomas
v.
WinchesterY6
that a
supplier who had, through negligence, falsely labelled belladonna as
cc
extract of dandelion
yy
could be held liable
to
a customer who
had purchased
it
from
a
retail druggist in the belief
on
the part
of
both buyer and seller that bhe mislabelled bottle contained a
relatively harmless drug.‘ There followed a series
of
cases,
on
both sides of the AtlanticY8 blocking out those products which were
cc
inherently
”
or
cc
imminently
yy
dangerous, and those which
were not. Much
cc
pointless dispute
yy
ensued and many
“
subtle
distinctions
”
lo
were drawn as
to
what was and what was not
my.,,
2
(1842) 10
M.
&
W.
109.
-’
See,
e.g.,
Lord Atkin’s rationale of
Wn’ght
v.
Winterbottom
in
Donoghuc
v.
4
(1842) 10
M.
&
W.
109. 114.
5
Zbid.
at
D.
115.
Steuenson
[1932]
A.C.
562, 588-589.
6
7
8
0
10
6
N.Y.
367
(1852).
Actual1
,
privity was dispensed with
on
both sides
:
the
injured plaintiff
was
the wii
of
the actual purchaser.
The English cases may
go
back even before
Winterbottom
V.
Wright.
See
Leuy
v.
Langridge
(1833)
9
M.
&
W.
519.
(This case may however be
explained
on
a
theory
of
deceit.)
Prosser,
Torts
(3rd
ed.,
1964),
5
96,
p.
660.
Cardom
J.
in
MacPhcrson
v.
Buick,
917
N.Y.
382,
394, 111
N.E.
1050, 1054
(1916).
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