This recent case discusses Vandermark v. Ford Motor Co. (Cal. 1964

Brennan, Edward V.

English

University of San Diego

RECENT CASESPRODUCTS LIABILITY - STRICT LIABILITY IN TORT -BOTH THE MANUFACTURER AND THE RETAILERARE STRICTLY LIABLE IN TORT FOR PERSONAL IN-JURIES CAUSED BY A DEFECT IN A PRODUCT MAR-KETED WITH THE KNOWLEDGE THAT IT IS TO BEUSED WITHOUT INSPECTION FOR DEFECTS. Vander-mark v. Ford Motor Co. (Cal. 1964).Plaintiff purchased a new Ford automobile from the defendantretailer. A defect in the brakes of the car caused an accident inwhich the purchaser and a passenger sustained injuries. Theybrought actions for negligence and breach of implied warrantiesagainst both the auto manufacturer and the retail dealer. The trialcourt granted a nonsuit in favor of the manufacturer, and a verdictfor the retailer. The Supreme Court of California reversed, holdingthat if a manufacturer markets a product with the knowledge thatit is to be used without inspection for defects, both the manufac-turer and the retailer are strictly liable in tort for personal injuriescaused by a defect in the product. Vandermark v. Ford Motor Co.,61 Cal. 2d 256, 391 P.2d 168, 37 Cal. Rptr. 896 (1964).In factual situations such as that presented by Vandermark, thenegligence of either the manufacturer or the retailer is very oftenextremely difficult to prove.' When negligence cannot be estab-lished, the victim is without a remedy unless strict liability can beimposed upon the defendant in an action for breach of warranties,either expressed or implied. However, a suit for breach of warrantyis replete with difficulties created by the fact that a warranty, beingcontractual in nature, is governed by contractual considerations. Onesuch contractual sine qua non, which has constantly presented anobstacle to recovery, is the requirement that the injured party be inprivity of contract with the person from whom he seeks to recover.In their attempts to circumvent this requirement, the courts havesubmerged the warranty theory in a morass of fictions, exceptionsand extensions.At early common law, breach of warranty was a tort sounding indeceit.2 It was not until the 18th Century that the contract actionwas recognized, 3 and then only with respect to breaches of expresswarranties.4 Later, from the action for breach of an implied war-X In such cases proof of negligence is usually based upon the doctrine of res ipsaloquitur. This theory is likely to be insufficient when the product has been subjectto the control of a number of parties. See PRossER, TORTS 225-28 (3d ed. 1964).2 Ames, The History of Assumpsit, 2 HItv. L. Rav. 1, 8 (1888).3 Stuart v. Wilkins, 1 Doug. 18, 99 Eng. Rep. 15 (K.B. 1778) ; Prosser, The Im-plied Wfarranty of Merchantable Quality, 27 MINN. L. REv. 117, 119-20 (1943).4 Prosser, supra note 3, at 119-20.19651SAN DIEGO LAW REVIEW[ranty of title, which had been recognized as a tort as early as the18th Century, there evolved the action for breach of an impliedwarranty of quality.5 But since the enforcement of any warranty hadby then come to be regarded as an action in assumpsit, strict con-tractual rules were applied. Not the least of these was the require-ment of privity.The doctrinal stranglehold of the privity requirement was firstloosened in actions involving personal injuries caused by the con-sumption of unfit food and food products. The early cases sought tosurmount the privity obstacle by finding some relationship betweenthe parties which would bring the victim within the contractualframework. But the utilization for this purpose of theories ofagency, assignment, or third party beneficiary contracts producedresults which were sometimes startling. For example, in one case awoman purchased pork chops for herself and her husband. Thechops were tainted, and both became ill after eating them. In orderto establish privity of contract between the husband and the retailer,it was alleged that the wife was her husband's agent. This theorywas accepted, and the husband was allowed recovery. But it washeld that the wife, on the other hand, being merely an agent, wasnot in privity with the vendor and recovery for her was denied.' Inanother case, where the purchaser consumed a soft drink containinga decomposed mouse, Missouri held the manufacturer liable. Al-though the entrenched law limited recovery in such circumstances toan assignee of the warranty, the court stated that, "[U]nder thesituation and circumstance of modern merchandise [sic] in suchmatters, privity of contract exists in the consciousness and under-standing of all right-thinking persons."8 In 1928 the Ohio SupremeCourt employed the theory of third party beneficiary contracts tohold a baking company liable for injuries caused by a pin bakedinto one of its cakes.' The court stated that the company knew thatthe retailer was not purchasing for its own consumption, and sincethe retailer purchased such goods for ultimate resale to customers,any warranty arising from the sale by the company to the retailerwas for the benefit of the consumer.1"California first relaxed the privity requirement in a case involvinga packaged sandwich which contained maggots. Consumption of the5 Id. at 120.6 Ibid.7 Gearing v. Berkson, 223 Mass. 257, 111 N.E. 785 (1916).8 Madouros v. Kansas City Coca-Cola Bottling Co., 230 Mo. App. 275, 283, 90S.W.2d 445, 450 (1936).9 Ward Baking Co. v. Trizzino, 27 Ohio App. 475, 161 N.E. 557 (1928).10 Id. at 475, 161 N.E. at 559.(Vol. 2RECENT CASESsandwich caused the purchaser's wife to become violently ill. Thecourt, permitting the wife to recover against both the manufacturerand the retailer, stated that although privity is usually required tomaintain an action for breach of warranty, an exception to this re-quirement exists when the product involved can be classified as foodor drug." Other states followed this exception, and by 1955 it wasrecognized by at least 15 states." Not content with this development,the courts expanded the scope of the original exception to permitrecovery without privity for a wide spectrum of products designedfor intimate bodily use, such as vaccine,13 tobacco,1' soap,15 deter-gent,"0 hair dye," permanent wave solution,"8 and clothing. 9 Theexpansion of the exception in California has encompassed dogfood," milk bottles,21 and food cartons.22Many courts have also allowed consumers to recover for breachof express warranties created by representations made on labels, insales literature, and other advertising media. Another prevalentexception to the privity requirement has been applied in those caseswhere the product, if defective, would be inherently dangerous toth consuming public. Under this doctrine recovery has been granted21 Klein v. Duchess Sandwich Co., 14 Cal. 2d 272, 93 P.2d 799 (1939).12 California, Florida, Illinois, Iowa, Kansas, Louisiana, Minnesota, Mississippi, Mis-souri, North Carolina, Ohio, Oklahoma, Pennyslvania, Texas, and Washington.PRossER, ToRTs 508-09 (2d ed. 1955).23 Gottsdanker v. Cutter Laboratories, 182 Cal. App. 2d 602, 6 Cal. Rptr. 320(1960).14 Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d 292 (3d Cir. 1961) (byimplication) ; Lartigue v. R. J. Reynolds Tobacco Co., 317 F.2d 19 (5th Cir.1963) (tobacco classified as within food and drink category).15 Kruper v. Proctor & Gamble Mfg. Co., 113 N.E.2d 605 (Ohio App. 1953), rev'don other grounds, 160 Ohio St. 489, 117 N.E.2d 7 (1954).26 Hamon v. Digliani, 148 Conn. 710, 174 A.2d 294 (1961); Worley v. Proctor &Gamble Mfg. Co., 241 Mo. App. 1114, 253 S.W.2d 532 (1952) (rev'd on othergrounds).17 Graham v. Bottenfield's Inc., 176 Kan. 68, 269 P.2d 413 (1954); Esborg v.Bailey Drug Co., 61 Wash. 2d 347, 378 P.2d 298 (1963).1s Rogers v. Toni Home Permanent Co., 167 Ohio St. 244, 147 N.E.2d 612 (1958);Markovich v. McKesson & Robbins Inc., 106 Ohio App. 265, 149 N.E.2d 181(1958).19 Chapman v. Brown, 198 F. Supp. 78 (D. Hawaii 1961), aff'd, Brown v. Chap-man, 304 F.2d 149 (9th Cir. 1962) (hula skirt); Martin v. J. C. Penney Co.,50 Wash. 2d 560, 313 P.2d 689 (1957) (by implication).20 McAfee v. Cargill Inc., 121 F. Supp. 5 (S.D. Cal. 1954).21 Vassallo v. Sabatte land Co., 212 Cal. App. 2d 11, 27 Cal. Rptr. 814 (1963).22 Faucette v. Lucky Stores, Inc., 219 Cal. App. 2d 196, 33 Cal. Rptr. 215 (1963)(by implication).23 E.g., Hamon v. Digliani, 148 Conn. 710, 174 A.2d 294 (1961); Prosser, StrictLiability To The Consumer, 69 YALE L.J. 1099, 1135-36 & nn. 212-14 (1960).1965]SAN DIEGO LAW REVIEW[for injuries resulting from defects in airplanes, 4 hot water heaters,"5bottles, " and tires.2"Not only have exceptions been based on the type of product in-volved, but there has also been an augmentation of the class ofplaintiffs allowed to recover for a breach of either an express orimplied warranty. In recent years the courts have amplified the causeof action for breach of warranty to include members of the pur-chaser's family,"8 members of his "industrial family,"29 his house-hold guests,"0 and foreseeable users in general.3 ' This trend is exem-plified by section 2-318 of the Uniform Commercial Code whichextends a seller's warranty whether express or implied to, "... anynatural person who is in the family or household of his buyer orwho is a guest in his home if it is reasonable to expect that suchperson may use, consume, or be affected by the goods and who isinjured in person by breach of the warranty."' 2There has been a definite contemporary trend toward the imposi-tion of strict liability in tort upon the manufacturer. The concepts,the language, and the emphasis of the courts have been increasinglythose of tort." Dean Prosser has stated that the warranty theory isa, "freak hybrid born of the illicit intercourse of tort and contract,"3and has appealed for a blanket rule which would make any supplierin the chain liable directly to the ultimate consumer.3 " California, itwould appear, adopted most of Dean Prosser's suggestion in thecase of Greenman v. Yuba Power Products Inc."6 In Greenman the24 Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 191 N.E.2d 81, 240N.Y.S.2d 592 (1963).25 Deveny v. Rheem. Mfg. Co., 319 F.2d 124 (2d Cir. 1963).26 Vallis v. Canada Dry Ginger Ale, Inc., 190 Cal. App. 2d 35, 11 Cal. Rptr. 823(1961).27 B. F. Goodrich Co. v. Hammond, 269 F.2d 501 (10th Cir. 1959).28 Henningsen v. Bloomfield Motors Inc., 32 N.J. 358, 414, 161 A.2d 69, 100(1960).29 Peterson v. Lamb Rubber Co., 54 Cal. 2d 339, 347, 353 P.2d 575, 581, 5 Cal.Rptr. 863, 869 (1960).80 Deveny v. Rheem Mfg. Co., 319 F.2d 124 (2d Cir. 1963).31 Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 436-37, 191 N.E.2d 81,82-83, 240 N.Y.S.2d 592, 594-95 (1963).32 UNIFORM COMMERCIAL CODE § 2-318. When enacting the Uniform CommercialCode, the California Legislature omitted § 2-318 because California case law hadalready gone beyond the limitations of that section. CI., Marsh & Warren, Reporton Proposed Amendments To The Uniform Commercial Code, SENATE FACrFnING Comm. ON JUDICIARY, SIXTH PaOGREss REPORT To THE [California]LEGISLATURE, PART 1-THE UNIFORM COMMERCIAL CODE, ch. VII 436, 457-58(1961).33 See Chapman v. Brown, 198 F. Supp. 78 (D. Hawaii 1961), aft'd, Brown v.Chapman, 304 F.2d 149 (9th Cir. 1962); Hamon v. Digliani, 148 Conn. 710,174 A.2d 294 (1960); Henningsen v. Bloomfield Motors Inc., 32 N.J. 358, 161A.2d 69 (1960); Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 191N.X.2d 81, 240 N.Y.S.2d 592 (1963).34 Prosser, supra note 22, at 1126.35 Id. at 1124.36 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1963).(Vol. 2RECENT CASESplaintiff's injury resulted from a defect in a lathe which had beenpurchased for him by his wife. The court transcended most of thetraditional contractual restrictions which had encrusted actions forbreach of warranty and held that, "A manufacturer is strictly liablein tort when an article he places on the market, knowing that it isto be used without inspection for defects, proves to have a defectwhich causes injury to a human being." 7 Greenman expressly statesthat the manufacturer's liability is to be governed not by the law ofcontract warranties, but by the law of strict liability in tort. 8 Accord-ingly, it was held that the notice requirement of the California CivilCode39 was inapplicable because the liability arises independently ofa contract of sale between the parties."0The Vandermark case is the cap-stone of the evolutionary process.In a brief opinion written by Justice (now Chief Justice) Traynor,the court held that if a manufacturer markets a product with knowl-edge that-it is to be used without inspection for defects, there isstrict liability in tort for personal injuries caused by a defect in theproduct and that this liability will be imposed not only on the manu-facturer but also on the retailer. A disclaimer of any or all warran-ties in the sales contract will not avoid the liability of either themanufacturer or the retailer; nor will failure of the buyer to givetimely notice of the breach of any warranty, whether express orimplied. Undoubtedly, strict liability in tort is now the rule inCalifornia.The doctrine of strict liability laid down by Vandermark is ex-pressly intended to be independent of any reliance on theories ofbreach of warranty. It will be interesting to observe the extent towhich the California courts, in applying the rules of strict liabilityin tort, will limit or extend the doctrine. Until now, the plaintiffs(including those in Vandermark) who have been permitted to re-cover have been limited to foreseeable users who sustained personalinjuries. Recovery for property damage on a strict liability basis hassince been denied in Seely v. White Motor Co.," which pointed outthat the Vandermark court, while granting recovery for personal in-jury, failed to mention the property damage to Vandermark's auto-mobile. Although the status of innocent bystanders is doubtful,4 2 itis conceivable that they may in the future be allowed to recover forpersonal injuries which are proximately caused by a defective prod-37 Id. at 62, 377 P.2d at 900, 27 Cal. Rptr. at 700.38 Id. at 63, 377 P.2d at 901, 27 Cal. Rptr. at 701.39 Cal. Stat. 1931, ch. 1070, § 1769, at 2249 (now CAL. COMM'L CODE § 2607 (3));Cf., UNIFORM SLa.s AcT § 49.40 59 Cal. 2d at 61, 377 P.2d at 900, 27 Cal. Rptr. at 700.41 228 Adv. Cal. App. 851, 39 Cal. Rptr. 805 (1964).42 Prosser, supra note 22, at 1142.1965]SAN DIEGO LAW REVIEW [Vol. 2uct because the rules of strict liability in tort do not discriminatebetween purchaser, consumer, and bystander as do the contractualrules of breach of warranty. With regard to defenses, the nature ofstrict liability would exclude ordinary contributory negligence sincesuch an action is not one based upon negligence.43 Moreover, recentindications are that the affirmative defense of assumption of the riskwill also be inapplicable.44Although there is reason to believe that the court in Vandermarkassumed negligence, 5 the basis of the liability is not culpability butpublic policy; i.e., the public interest in preserving human life andhealth which justifies the imposition of full responsibility upon thesupplier for the harm caused by his product, despite his lack ofnegligence.46 In our highly developed state of industry and market-ing, strict liability is necessary to protect those who are unable ade-quately to protect themselves against products which are danger-ously defective. Industrialists and businessmen, by virtue of the ruleexpounded in Vandermark, are forced to accept risks and responsi-bilities which are concomitant with the products they make and sell.The court, in recognizing the added burdens and expenses whichwill be the lot of the manufacturer and retailer as a result of itsdecision, did not overlook the fact that the added costs can be ad-justed and absorbed as a business expense. The notable achievementof Vandermark is the directness with which it affords increased pro-tection to the consumer in an area where in the past he was withouta remedy. Other jurisdictions would do well to make the same forth-right leap.Edward V. Brennan43 Id. at 1147-48; 4., Vassallo v. Sabatte Land Co., 212 Cal. App. 2d 11, 27 Cal.Rptr. 814 (1963); Kassouf v. Lee Bros., Inc., 209 Cal. App. 2d 568, 26 Cal.Rptr. 276 (1962).44 Lascher, Strict Liability in Tort for Defective Products: The Road To and PastVandermark, 38 So. CAL. L. Rav. 30, 54 (1965); see Alvarez v. Felker Mfg.Co., 230 Adv. Cal. App. 1060, 1069, 41 Cal. Rptr. 514, 519 (1964) which statesthat in order to establish a prima facie case of strict liability in tort, the plaintiffmust show that he was unaware of a defect in the product. Plaintiff therefore hasthe burden of proving his own lack of knowledge. Assumption of the risk, onthe other hand, would require the defendant to prove that the plaintiff knew ofthe particular danger involved; yet any showing of such knowledge would destroythe plaintiffs prima facie case, and would obviate the presentment of assumptionof the risk as a defense.45 "Moreover, since it could reasonably be inferred from the description of the brak-ing system in evidence and the offer of proof of all possible causes of defectsthat the defect was owing to negligence in design, manufacture, assembly, oradjustment, it must be taken as established that the defect was caused by somesuch negligence." 61 Cal. 2d at 260, 391 P.2d at 170, 37 Cal. Rptr. at' 898.46 Seely v. White Motor Co., 228 Adv. Cal. App. 851, 863, 39 Cal. Rptr. 805, 811(1964); Prosser, supra note 22, 1122.

Products Liability - Strict Liability in Tort - Both the Manufacturer and the Retailer Are Strictly Liable in Tort for Personal Injuries Caused by a Defect in a Product Marketed with the Knowledge that It Is to Be Used Without Inspection for Defects. Vandermark v. Ford Motor Co. (Cal. 1964)

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Products Liability - Strict Liability in Tort - Both the Manufacturer and the Retailer Are Strictly Liable in Tort for Personal Injuries Caused by a Defect in a Product Marketed with the Knowledge that It Is to Be Used Without Inspection for Defects. Vandermark v. Ford Motor Co. (Cal. 1964)

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