Products Liability in Perspective

William L. Prosser, Products Liability in Perspective, 5 Gonz. L. Rev. 157 (1970).


The general idea, as I understand, is that I am to ramble around for awhile on the subject of products liability-where we are, and where we are going. I am well aware that many of you have afternoon engagements, and if anybody wants to walk out at any time-in fact, if whole blocks of the audience wish to walk out-I shall fully understand and not be  annoyed in the least. So, let us begin.

Products liability from the plaintiff’s standpoint offers three possible theories of recovery. The first of these is negligence-that the defendant, whoever he may be, retailer, wholesaler, manufacturer, has not used reasonable care in making or marketing the product. This, of course, is an old friend, something that everyone was taught in law school. It goes back to 1916, when that rare phenomenon occurred-a Scotsman bought what was then an expensive motor car. The case fell into the hands of Judge Cardozo of the Court of Appeals of New York. In MacPherson v. Buick Motor Company, it was held that the manufacturer owed a duty of reasonable care to the ultimate consumer or user of the car. That was gradually extended and expanded in ways that you are all familiar with. Among other things, it was extended to include injuries to mere bystanders and collisions with other vehicles, and it became quite well  established. I think Mississippi was actually the last state to accept the negligence cause of action without privity of contract, and actually it never did accept it-it jumped right over it to strict liability. But I have no doubt that Mississippi would accept liability for negligence. This is still a very live cause of action from the standpoint of the  plaintiff. It has been largely replaced by the other two theories-warranty and strict liability in tort.  Nevertheless, it is still available in every jurisdiction; and because these other theories are still relatively new and lawyers are not very sure of their ground, they tend to plead and attempt to prove negligence. Of course, if they can succeed in proving  negligence, this is likely to have its effect on the jury in terms of the damages and the tendency to give the plaintiff, rather than the defendant, the breaks. For that reason alone, if nothing else, it is quite likely that negligence will continue to be pleaded and attempted to be proved for a great many years to come. It is by no means a dead letter.

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