Special Note: This is another article in the series
begun last October by the Jealous Mistress. She hopes you will enjoy, or at
least tolerate, her reflections on interesting court decisions. Posts from the Hermit
Philosopher himself may appear from time to time on this blog, but the point of
the JM’s musings is to collect articles for a forthcoming book manuscript. And now
please consider: How Cars Changed the Law.
_____
Thinking about poor Mrs. Palsgraf (see
previous blog post) leads the Jealous Mistress to recall another famous Cardozo
case: MacPherson v. Buick Motor Co. Decided twelve years before Palsgraph, this involved a 1909 model
Buick Runabout and its wooden wheels. (Yes, like those of horse-drawn
carriages, car wheels were made of wood in the early days.)
A third party manufactured the wheels,
Buick installed them on the vehicle and sold it to a local dealer who then sold
it to Mr. MacPherson. While he was driving one day, one of the wheels suddenly collapsed
and MacPherson was thrown out and injured. “One of the wheels was made of
defective wood, and its spokes crumbled into fragments,” the opinion states.
There was evidence of negligence—the defects could have been discovered upon
inspection and no inspection was done—but Buick denied liability because there was no privity of contract between it and Mr. MacPherson. (“Privity” is the
principle that a contract cannot impose obligations upon anyone who is not a
party to it.)
The question for Justice Cardozo,
therefore, was “whether the defendant owed a duty of care and vigilance to anyone
but the immediate purchaser.” Today we would certainly say “yes,” and that’s why
cars come with warranties. But in 1916 this was a novel question. If privity of
contract controlled the case, MacPherson would be standing out in the cold beside
his broken-down vehicle.
Before repairing to the garage, so to speak,
to see how Cardozo managed to achieve justice and change the common law, some New
York history is in order.
In the 1840s a couple of industrious
gentlemen, Messrs. Winchester and Gilbert, were engaged in selling medicine in lower
Manhattan. Among their potions were extracts of dandelion and belladonna.
Dandelion was used to treat fevers, boils, diarrhea, skin ailments, and sundry
other maladies. Women used belladonna (Italian for “beautiful lady”) to dilate
their pupils and make them look more attractive to the males of the species. Unfortunately,
belladonna is actually the highly toxic vegetable poison known as “deadly
nightshade.”
One day a certain druggist named Aspinwall
obtained from Winchester and Gilbert a jar of belladonna that had been
mislabeled as dandelion extract, which is harmless. Aspinwall later sold the
mislabeled product to another druggist who, filling a physician's prescription
for extract of dandelion, unknowingly dispensed some belladonna to Mrs. Mary Ann
Thomas. The court record shows that “a small quantity of the medicine thus
purchased was administered to Mrs. Thomas, on whom it produced very alarming
effects ... such as coldness of the surface and extremities, feebleness of
circulation, spasms of the muscles, giddiness of the head, dilation of the
pupils of the eyes, and derangement of mind.” Mrs. Thomas eventually recovered,
but for awhile she was in mortal danger.
Undoubtedly thankful to be alive but
resentful of the pharmacists’ carelessness, Mrs. Thomas sued Winchester and
Gilbert. But she had a problem: she had no contractual relationship (no “privity”)
with them. They had sold the mislabeled belladonna to a druggist, who sold it
to another druggist, who eventually dispensed it to the unfortunate patient. Being
thus contractually distant from the miscreant, the ordinary legal principles were
of no use to Mrs. Thomas.
But this was of no moment to the New York Court
of Appeals. Sensibly, they ruled that a deadly poison is inherently dangerous and that one who labels it negligently is
responsible for the foreseeable result of his error. “The defendant's
negligence put human life in immediate danger,” they wrote. “Can it be said
that there was no duty on the part of the defendant to avoid the creation of
that danger by the exercise of greater caution?”
Decided in 1852, the Thomas case begat Devlin v.
Smith in 1882 (involving a defective scaffold), which begat Statler v. Ray Mfg. Co. in 1909 (involving
an exploding coffee urn). In each of these cases, the one who
created the offending article was accountable not because he was in privity
with the ones injured but because his product was likely to be dangerous if not
made properly. So in MacPherson Cardozo
writes:
It may be that [Devlin and Statler] have extended the rule of Thomas v. Winchester. If so, this court is committed to the
extension. The defendant argues that things imminently dangerous to life are
poisons, explosives, deadly weapons—things whose normal function it is to
injure or destroy. But whatever the rule in Thomas
v. Winchester may once have been, it has no longer that restricted meaning.
Let's pause to consider what is happening
here. The Thomas case involved
poison, something that is dangerous even when made and used correctly, so in
deciding that case it was enough to talk only of items that are inherently dangerous.
But an automobile is not such an instrumentality, thus Cardozo has to apply the
dangerousness principle to a situation that was not foreseen when it was first articulated.
In doing so, he is laying the foundation for products liability law, an
entirely new concept. He does so carefully:
A scaffold … is not inherently
a destructive instrument. It becomes destructive only if imperfectly
constructed. A large coffee urn … may have within itself, if negligently made,
the potency of danger, yet no one thinks of it as an implement whose normal
function is destruction…. We are not required at this time either to approve or
disapprove the application of the rule that was made in these earlier cases. It
is enough that they help to characterize the trend of judicial thought.
So even if an instrumentality is not
inherently dangerous in the same way that poisons, explosives, and similar
things are, this general principle still applies: “[I]f it is reasonably
certain to place life and limb in peril when negligently made, it is then a
thing of danger.”
Now Cardozo returns to the matter of poor Mr.
MacPherson’s wrecked Buick:
From
this survey of the decisions, there thus emerges a definition of the duty of a
manufacturer which enables us to measure this defendant's liability. Beyond all
question, the nature of an automobile gives warning of probable danger if its
construction is defective. This automobile was designed to go fifty miles an
hour. Unless its wheels were sound and strong, injury was almost certain. It
was as much a thing of danger as a defective engine for a railroad. The
defendant knew the danger. It knew also that the car would be used by persons
other than the buyer.… The maker of this car supplied it for the use of
purchasers from the dealer just as plainly as the contractor in Devlin supplied the scaffold for use by
the servants of the owner. The dealer was indeed the one person of whom it
might be said with some [degree of] certainty that by him the car would not be
used. Yet the defendant would have us say that he was the one person whom it
was under a legal duty to protect. The law does not lead us to so inconsequent
a conclusion.
Finally, the Judge drives home his point with three important
sentences. “Precedents drawn from the days of travel by Stagecoach do not fit
the conditions of travel today. The principle that the danger must be imminent
does not change, but the things subject to the principle do change. They are
whatever the needs of life in a developing civilization require them to be.”
In McPherson, Cardozo has used experience to
create the basic premise of products liability law: that the producer must bear
his goods’ external costs to society. That duty comes from the perception of
risk.
Undoubtedly, automobile magnates around
Detroit used terms like “activist judges” and “judge made law” over their brandy
and cigars in condemning the McPherson
decision. But judges don’t actively seek out cases; they only decide the ones brought
to them. And Cardozo was better at it than most.
We thank the gods of Serendip—the old name
for Sri Lanka and the source of the word serendipity—for
the gift of fortunate discovery. We have discovered that Mr. McPherson's
juridic family tree has branches that touch the Thomas, Devlin, Statler, and Palsgraf
families. The concept of “duty” was the genetic marker all of them shared. ■
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