Wyoming Law Journal Volume 17 Number 2 Article 7 December 2019 Products Liability - The Defense of Products Liability Cases James Barton Phelps Follow this and additional works at: https://scholarship.law.uwyo.edu/wlj Recommended Citation James B. Phelps, Products Liability - The Defense of Products Liability Cases, 17 WYO. L.J. 124 (1963) Available at: https://scholarship.law.uwyo.edu/wlj/vol17/iss2/7 This Special Section is brought to you for free and open access by Law Archive of Wyoming Scholarship. It has been accepted for inclusion in Wyoming Law Journal by an authorized editor of Law Archive of Wyoming Scholarship. PRODUCTS LIABILITY JAMES BARTON PHELPS* THE DEFENSE OF PRODUCTS LIABILITY CASES I appreciate this opportunity to spend a few minutes discussing certain general areas of practical importance for the general practitioner in the defense of a products liability case. It is also my purpose to attempt to leave with you some understanding of this new and fascinating field of the law-a field which is ordinarily termed "products liability" but which might well be more accurately termed "the liability of sellers and manufacturers for harm caused by their products." At the outset of this discussion, I would caution you to avoid an approach based purely on traditional theories of tort or of contract; for while the case law borrows heavily from these branches of the law, the practical result of the most advanced and recent cases is to create and impose an absolute liability on manufacturers and sellers for harm caused by their products. What products will bear this burden, what manu- facurers and sellers will be liable and what defenses, if any, may be available is still to be decided by the vast majority of the states. Since this is a developing field, the case law of the several states is at variance, even within individual states there are conflicts in the cases; therefore no attempt is here made to delineate the law of any particular jurisdiction, nor are the citations of authority herein given by any means exhaustive of other cases on the same point. 1. Preliminary: The lawyer for the defendant in a products liability case is usually retained by an insurance carrier. The ordinary defense of a personal injury case may pose no problems to him. The defense of an automobile case, a slip and fall case, a dog bite case, may be second nature to him, but beware of the products liability casel It is unique, difficult and requires the utmost care and attention. It differs from the ordinary defense case in several particulars: (a) Normally it contains more complex legal issues than any other type of litigation; (b) The facts are of a highly technical nature and require thorough analysis and the acquisition by the lawyer of knowledge in an engineering or scientific field; (c) The named defendant is highly interested in the case; his trade reputation is at stake; you may very well be caught between his desire for vindication and your company's desire for settlement; in most cases you will be reporting to the defendant's general counsel or engineering staff, as well as to the company; (d) The defense is expensive. Most substantial products liability cases involve huge losses-as for example, explosions of boilers, collapses *In the firm of Gledsoe, Catchcart, and Phelps, San Francisco, California. [124] PANEL DISCUSSION of buildings, losses of entire crops, flooding-and usually serious injury or death. Their defense takes time-lots of it-imagination, thought and effort. Consequently, one of the first things the defense lawyer should do is to educate the relevant insurance carrier about the difficulties of the defense and the attendant expense involved. The company may then want to settle the case, if not, the lawyer's bill should come as no surprise to the carrier. 2. Defenses of Law: When a products liability file first comes into your office and after checking it for the usual facts such as service, coverage, venue, etc.-the lawyer will want to consider his defenses which are primarily legal in nature. The most important ones are as follows: (a) Privity. The requirement of privity prevents an injured plaintiff from suing a defendant who is remote-for example, a middleman or manufacturer-and with whom the plaintiff has had no dealings, directly or indirectly. This requirement is observed more in the breach than otherwise. (1) Negligence cases: As we have seen, where the defendant man- ufacturer, wholesaler or supplier or retailer has been negligent, no privity is required. The plaintiff may sue him directly.' (2) Express warranty: Where the defendant has expressly war- ranted a fact to the plaintiff, the plaintiff may bring an action for breach of this warranty in the same manner as he would sue on any other contract. There is no question of privity. However, modern cases tend to find an express warranty in written representations made by the manu- facturer in labels or advertising material where they were of such a nature that the customer might reasonably be expected to rely thereon.2 (3) Implied warranties: The Uniform Sales Act is in effect in most of the United States with the exception of New Mexico and Wyoming which have adopted the Uniform Commercial Code. Both statutes pro- vide for implied warranties of fitness for use of merchantibility.3 The important thing to realize is the fact that, under the terms of the Act, these implied warranties only run from the "seller" to the "buyer." There- fore the defense of privity arises in an action by a plaintiff against a remote seller who has not been negligent and who has made no express warranty. Since he is not a seller to the plaintiff no implied warranty 1. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916). 2. Burr v. Sherwin Williams Co., 42 C.2d 682, 268 P.2d 1041 (1954) (label on insecti- cide) ; Free v. Sluss, 87 C.A.2d 933, 197 P.2d 854 (1947) (soap package contained print- ed guarantee of quality); Bahlman v. Hudson Motor Car Co., 290 Mich. 683, 288 N.W. 309 (1939) (automobile manufacturer represented top of car to be made of seamless steel) ; Baxter v. Ford Motor Co., 168 Wash. 456, 12 P.2d 409 (1932) (auto- mobile manufacturer represented windshield to be a non-shatterable glass) ; Simpson v. American Oil Co., 217 N.C. 542, 8 S.E.2d 813 (1940) (representation on label that insecticide was non-poisonous to humans). 3. I have great difficulty in differentiating between the two. Even Justice Cardozo states that they usually arise simultaneously. See Ryan v. Progressive Grocery Stores, 225 N.Y. 388, 175 N.E. 105 (1935). For discussion of these warranties see Burr v. Sherwin Williams Co., supra, note 2 at 694. The distinction probably lies in the manner in which they arise under the Sales Act. WYOMING LAW JOURNAL has arisen-so the theory goes but can the plaintiff sue the seller any- way on some theory? This is the present battleground of products liabil- ity; and we must be diverted for a moment for discussion and analysis of its present situation and the implications of the extreme position that these implied warranties in all casess run from the manufacturer to the ultimate consumer and thus provide a vehicle for absolute responsibility for breach thereof. The majority of the states still require privity of contract as a pre- 4 requisite for an action for breach of implied warranty. In many states common justice has demanded that the requirement of privity be abandoned in cases involving food and drugs. 5 But recent decisions have tended to abolish the requirement of privity in other types 6 of cases. Finally in Henningsen v. Bloomfield Motors, Inc.,7 the New Jersey Supreme Court, acting on the theory that if you shoot at a king you had better kill him, went all the way in abandoning privity as a requirement in any case and held that the manufacturer and the retailer of an automo- bile were responsible to the buyer's wife injured as the result of a defect in the vehicle, even though neither was negilgent nor made any warranty, express or implied, to the plaintiff. Let there be no misunderstanding: The decision was deliberate judicial "legislation," but that is the way our common law evolves. Listen, then to Mr. Justice Francis as he gives his reasons for killing the king: With the advent of mass marketing the manufacturer became remote from the purchaser, sales were accomplished through intermediaries, and the demand for the product was created by 4. By far the most helpful and penetrating article on the entire subject is Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer) , 69 Yale L.J. 1100 (June, 1960). Anyone involved in a products liability case of any con- sequence will want to read and ponder the thoughts of Dean Prosser. The statiscally minded will be interested in knowing that apporoximately 28 states and the District of Columbia require privity; 16 states do not; 6 states are un- determined. An article by Warren Freedman published by the Defense Research Institute, Inc. in the early part of this year lists these jurisdictions with the appropriate cases in support of their position on privity. 5. Klein v. Duchess Sandwich Co. Ltd., 14 C.2d 272, 93 P.2d 799 (1939); Vaccarezza v. Sanguinett, 71 CA.2d 687, 163 P.2d 470 (1945); Gottsdanker v. Cutter Labora- tories, 6 Cal. Rptr. 320 (1960) ; Greenberg v. Lorenz, 9 N.Y.2d 195, 173 N.E.2d 773 (1962).