Beshada v. Johns-Manville Products Corp.: Evolution or Revolution in Strict Products Liability?
Beshada v. Johns-Manville Products Corp.: Evolution or Revolution in Strict Products Liability?
Christopher M. Placitella
Alan M. Darnell
CHRISTOPHER M. PLACITELLA* AND
EW if any areas of the common law have evolved as quickly and
dramatically as that of the law of products liability. Over the
course of the last two decades, courts have consciously eroded the
impediments to imposing liability on a manufacturer or distributor
that places a defective product into the stream of commerce which
ultimately injures the user or consumer.
Until the New Jersey Supreme Court's decision in Beshada v.
JohnsManville Products Corp.,I one such impediment to the imposition of
liability was the state-of-the-art defense.2 This defense can immunize
a manufacturer or distributor from liability for product defects of
which it could not have been aware at the time of marketing. 3 In
rejecting the use of this defense in a strict products liability case, the
Beshada court distinguished the theories of strict liability and
negligence. 4 Drawing on a trilogy of its own recent decisions in which the
* Associate, Wilentz, Goldman & Spitzer, Woodbridge, New Jersey, B.S. 1978,
same distinction was made, 5 the court firmly fixed the theory of strict
liability in a position between the theories of negligence and absolute
Contrary to the assertions of some commentators,8 the holding and
principles enunciated by the court in Beshada are not revolutionary
but merely evolutionary. Accordingly, this Article suggests that
criticism leveled against the Beshada decision is the result of misdirected
fears of the practical implications of faithfully and forcefully applying
well-recognized principles of strict products liability.
I. THE ORIGINS OF STRICT PRODUCTS LIABILITY
Before the advent of strict products liability, plaintiffs who brought
actions against manufacturers or distributors for injuries caused by
defective products sued on theories of negligence and breach of
warranty.7 Prevailing under these theories, however, often proved to be
an insurmountable task. Plaintiffs whose actions were predicated on
negligence were frequently unable to demonstrate that the defendant
had failed to act reasonably in marketing its product or were barred
from recovery because of their own contributory negligence.8
When suing under a warranty theory, a plaintiff had to show that
the product was unreasonably constructed or unreasonably designed
for its intended use.9 Until the New Jersey Supreme Court opinion in
Henningsen v. Bloomfield Motors, Inc., l ° courts typically required
that the plaintiff be in privity of contract with the defendant before he
could initiate a suit for breach of warranty. Even after Henningsen
removed the privity requirement," however, the law of sales still
presented certain obstacles to recovery on a warranty theory. 12
In 1963, the California Supreme Court in Greenman v. Yuba
Power Products, Inc.,'13 took a giant step forward in the evolution of
products liability law by creating a new theory of recovery in tort.
According to Greenman, a manufacturer is strictly liable in tort when
it markets a defective product that ultimately causes personal injury to
a reasonably forseeable user or consumer. 14
A. Is the ProductDefective?
For a plaintiff to succeed on a products liability claim, whether
based on negligence, breach of warranty or strict liability, he must
prove that the product was defective.' 5 Basically, two categories or
combinations of conditions may render a product
defective-"manufacturing" and "design" defects.' 6 Manufacturing defects, which are
beyond the scope of this Article, 17 occur through error in the
manufacturing or assembly process.' 8 Design defects are those arising out of the
dangers inherent in the product itself.' 9 In a design defect case, even
13. 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1963).
14. Id. at 62, 377 P.2d at 900, 27 Cal. Rptr. at 700. The theory of strict products
liability was first suggested by Justice Traynor in Escola v. Coca Cola Bottling Co.,
24 Cal. 2d 453, 462, 150 P.2d 436, 440 (1944) (Traynor, J., concurring). The
pronouncement of this doctrine had to await the Greenman case, however, in which
Justice Traynor wrote for a unanimous court. During the following decade, the
Greenman rule was made applicable to retailers, Vandermark v. Ford Motor Co., 61
Cal. 2d 256, 391 P.2d 168, 37 Cal. Rptr. 896 (1964), bailors and lessors, Price v. Shell
Oil Co., 2 Cal. 3d 245, 466 P.2d 722, 85 Cal. Rptr. 178 (1970), wholesalers and
distributors, Canifax v. Hercules Powder Co., 237 Cal. App. 2d 44, 46 Cal. Rptr.
552 (1965), and sellers of mass produced homes, Kriegler v. Eichler Homes, Inc., 269
Cal. App. 2d 224, 74 Cal. Rptr. 749 (1969). For ease of discussion, the use of the term
"manufacturers" in this Article encompasses all other parties in the chain of
15. See 1 L. Frumer & M. Friedman, supra note 3, § 11.01, at 198.12; 2 id. §
16.03[a], at 3A-58; id. § 16A[e][i], at 3B-88.
16. Some commentators suggest that defects due to a failure to warn constitute a
third category distinct from design defects. See 2 L. Frumer & M. Friedman, supra
note 3, § 16A[f][i], at 3B-118.2 to -118.3.
17. When a strict products liability claim is predicated on a manufacturing
defect, the plaintiff must show that the product "deviated either in some material
way from the manufacturer's specifications or performance standards or from
otherwise identical units of the same product line." Id. § 16A[f][iii], at 3B-132.1
(citation omitted). Because it is a deviation from the manufacturer's design that is at
issue, rather than the design itself, the state-of-the-art defense and therefore the
impact of Beshada are inapplicable.
18. Cepeda v. Cumberland Eng'g Co., 76 N.J. 152, 169-71, 386 A.2d 816,
), overruledon other grounds, Suter v. San Angelo Foundry & Mach. Co.,
81 N.J. 150, 406 A.2d 140 (
); Wade, On Product "Design Defects" and Their
Actionability, 33 Vand. L. Rev. 551, 551 (
); see 2 L. Frumer & M. Friedman,
supra note 3, § 16A[f][iii], at 3B-132 to -132.1.
19. See Barker v. Lull Eng'g Co., 20 Cal. 3d 413, 429-30, 573 P.2d 443, 454, 143
Cal. Rptr. 225, 236 (
); Rucker v. Norfolk & W. Ry., 77 Ill. 2d 434, 439, 396
products that are properly constructed according to specifications may
still be considered defective. 20 Claims based on design defects may
attack the design of a single component part 2' or the finished product
as a whole. 22 A product is defectively designed if the manufacturer
either fails to include an adequate safety device 23 or fails to
incorporate a proper warning regarding the product's dangers. 24
The issue of when a product is "defective" in a design defect case
predicated on strict liability is still unsettled and has been the subject
of continuous debate by both courts and commentators.2 5 Today,
judges routinely borrow terminology from the law of warranty and
negligence when instructing juries as to what constitutes a "defective"
product.26 In design defect cases the use of negligence terminology in
jury charges is seemingly unavoidable because the adequacy of a
product's design necessarily depends upon its reasonableness. 2 7 This
practice has led to confusion over what differences, if any, exist
between strict liability and negligence theories in design defect cases.
The importance of identifying these differences becomes particularly
acute when determining whether certain defenses to a claim of
negligence, such as the state-of-the-art defense, are also available to a
defendant in a strict liability case. Successful resolution of such an
issue requires an appreciation of the essential differences between
strict liability and negligence.
B. Negligence vs. Strict Liability
The availability of negligence as a theory of recovery in design
defect cases was accepted long before the advent of strict liability.28
The law of negligence requires that a manufacturer take precautions
to avoid all unreasonable foreseeable risks of harm inhering in the
product's intended use.29 Whether the risk of harm is foreseeable
depends upon what the manufacturer knew or should have known at
the time of marketing. 30 Because many courts hold a manufacturer to
the knowledge and skill of an expert with respect to its products, 31 a
manufacturer must not only keep abreast of scientific advances, 32 but
also must perform ongoing investigations of its product in search of
undisclosed risks of harm. 33
There can be little doubt as to the availability of the state-of-the-art
defense in a negligence action in which the central issue is whether the
28. See, e.g., Goullon v. Ford Motor Co., 44 F.2d 310, 311 (6th Cir. 1930);
Reusch v. Ford Motor Co., 82 P.2d 556, 559 (Wash. 1938); Coakley v.
PrentissWabers Stove Co., 182 Wis. 94, 105-06, 195 N.W. 388, 392 (1923).
29. Martin v. Bengue, Inc., 25 N.J. 359, 371, 136 A.2d 626, 632 (1957); Reusch
v. Ford Motor Co., 82 P.2d 556, 558-59 (Wash. 1938); Restatement (Second) of Torts
§ 398 (1965).
30. Freund v. Cellofilm Props., 87 N.J. 229, 239, 432 A.2d 925, 930 (
Martin v. Bengue, Inc., 25 N.J. 359, 371, 136 A.2d 626, 632 (1957); Reusch v. Ford
Motor Co., 82 P.2d 556, 560 (Wash. 1938); see Restatement (Second) of Torts § 398
31. Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1089 (5th Cir.
1973), cert. denied, 419 U.S. 869 (
); Howard v. Avon Prods., 155 Colo. 444,
454, 395 P.2d 1007, 1011 (1964); Braun v. Roux Distrib. Co., 312 S.W.2d 758, 763
(Mo. 1958); Gielskie v. State, 18 Misc. 2d 508, 510, 191 N.Y.S.2d 436, 438 (Ct. Cl.
1959), rev'd on other grounds, 10 A.D.2d 471, 200 N.Y.S.2d 691 (1960), affd, 9
N.Y.2d 834, 175 N.E.2d 455, 216 N.Y.S.2d 85 (1961).
32. Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1089 (5th Cir.
1973), cert. denied, 419 U.S. 869 (
); Gielskie v. State, 18 Misc. 2d 508, 510, 191
N.Y.S.2d 436, 438 (Ct. Cl. 1959), rev'd on other grounds, 10 A.D.2d 471, 200
N.Y.S.2d 691 (1960), aff'd, 9 N.Y.2d 834, 175 N.E.2d 455, 216 N.Y.S.2d 85 (1961);
see Martin v. Bengue, Inc., 25 N.J. 359, 371, 136 A.2d 626, 632 (1957); Ferrigno v.
Eli Lilly & Co., 175 N.J. Super. 551, 581, 420 A.2d 1305, 1321 (Law Div. 1980).
33. See Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1089-90 (5th
Cir. 1973), cert. denied, 419 U.S. 869 (
); Noel, Manufacturer'sNegligence of
Design or Directionsfor Use of a Product,71 Yale L.J. 816, 853 (1962).
defendant knew or should have known of the unreasonable risks and
foreseeable dangers posed by its products.3 4 If the defendant can show
that the dangerous propensities of the product were unknown or
unknowable at the time he placed it into the stream of commerce, he
will not be held responsible for injuries caused by such defects.35
Strict liability, on the other hand, imposes liability for damages
without requiring proof of negligent conduct.3 6 The theory of strict
products liability was first applied in 1963. In Greenman v. Yuba
Power Products, Inc.,37 the Supreme Court of California, in an
opinion authored by Justice Traynor, held that a manufacturer who elects
to market a product incurs liability when the article proves to have a
defect that causes personal injury to the user or consumer.38 The
principles of strict liability articulated in Greenman gained
widespread acceptance with the adoption of section 402A of the
Restatement (Second) of Torts.3 This section would impose liability on the
seller of a defective product that causes injury regardless of the degree
of care exercised by the seller.40 The policy behind section 402A seeks
to place the "burden of accidental injuries caused by products
intended for consumption . . .upon those who market them, [to] be
treated as a cost of production against which liability insurance can be
Viewed from this historical perspective, strict liability was clearly
intended to shift the focus from the defendant's conduct to the
product. This shift in focus away from the defendant's culpability
undermines the applicability of the state-of-the-art defense in strict liability
II. BESHADA: A LOGICAL EXTENSION OF STIcT LIABILITY
Critics have characterized the New Jersey Supreme Court's decision
in Beshada v. Johns-ManvilleProducts Corp.42 as a radical departure
from accepted principles of strict liability in tort.43 Several New Jersey
cases predating Beshada, however, recognized the functional and
analytical differences between strict liability and negligence, 44 and
thus demonstrate that the Beshada decision is more accurately
described as a logical extension of strict liability principles.
A. The New Jersey Trilogy: Cepeda, Suter & Freund
In the seminal case of Cepeda v. Cumberland Engineering Co.,45
the New Jersey Supreme Court responded to the invitation of Dean
Wade to be "forthright in using a tort way of thinking and tort
terminology [in cases of strict liability],"' 46 and began a process of
distinguishing the theories of strict liability and negligence in design
defect cases. In Cepeda, the court adopted the "risk-utility" or
"Wade-Keeton" analysis for determining whether a product is
defectively designed for strict liability purposes.4 7
In the first step of the analysis, knowledge of a product's dangerous
condition, as demonstrated at the time of trial, is imputed to the
defendant as a matter of law. 48 In the second step, the inquiry is
confined solely to the question whether a reasonably prudent
manufacturer, possessed of such foreknowledge, would have placed the
product as marketed into the stream of commerce. 49
), overruled on other grounds, Suter v. San Angelo Foundry & Mach. Co., 81
N.J. 150, 177, 406 A.2d 140, 153 (
); Phillips v. Kimwood Mach. Co., 269 Or.
485, 495-98, 525 P.2d 1033, 1037-39 (
); Roach v. Kononen, 269 Or. 457, 465,
525 P.2d 125, 129 (
); Reiger v. Toby Enters., 45 Or. App. 679, 682-83, 609 P.2d
402, 404 (
); Little v. PPG Indus., 19 Wash. App. 812, 821, 579 P.2d 940, 946
), aff'd as modified on othergrounds, 92 Wash. 2d 118, 594 P.2d 911 (
49. Dean Wade poses the question as "whether the magnitude of the risk created
by the dangerous condition of the product was outweighed by the social utility
attained by putting it out in this fashion." Wade, supra note 26, at 835. Dean Keeton
poses, with different emphasis, the question as whether "a reasonable person would
conclude that the magnitude of the scientifically perceivable danger as it is proved to
be at the time of trialoutweighed the benefits of the way the product was so designed
and marketed." Keeton, supra note 46, at 38 (emphasis in original). Under either
Adoption of this two-pronged analysis began the process of
distinguishing the theories of strict liability and negligence. The critical
distinction is made in the first step by imputing knowledge of the
product's dangerous propensities to the defendant. Itthereby relieves
the plaintiff of the burden-imposed on him in a negligence
actionof proving the defendant's knowledge. The function of the second step
is to determine whether the product is "defective." This determination
is reached by weighing the risks of using the product, known at the
time of trial, against the product's utility. 50 If the product's risks
outweigh its utility, the product is considered defective. 51 Although
employing negligence terminology, the second step can more
accurately be seen as limiting the tendency of the first step to render a
defendant absolutely liable.
In Suter v. San Angelo Foundry & Machine Co. ,52 the New Jersey
Supreme Court retained the two-pronged Wade-Keeton analysis for
determining whether a product is defectively designed. 53 The Suter
court altered, however, the complexion of the model jury instruction
that the Cepeda court had formulated on the basis of the
Wadeversion of the risk-utility analysis, if it is determined that the risks of using the
product outweigh its utility, the product is deemed to be in a "defective condition
unreasonably dangerous" to users or consumers coming into contact with it. Any
injury proximately caused by the so-defined defective product subjects its
manufacturer to strict liability in tort.
50. Dean Wade outlines seven factors that can be considered in making this
Keeton analysis. 54 Under the Cepedainstruction, 55 imposition of strict
liability depended on a finding that a product was in a "defective
condition unreasonably dangerous."5' 6 According to the court in
Suter, this language "appears to impose a greater burden on plaintiff
than is warranted, for it seems to require that plaintiff not only
establish a defect but that in addition the condition created be
unreasonably dangerous."' 57 Thus, to avoid the possible misapprehension of
a dual burden of proof, the court held that a jury should be given a
general charge to the effect that "a manufacturer has an obligation to
distribute products which are reasonably fit, suitable and safe for
their intended or foreseeable purposes." 58 Reasonable fitness,
suitability and safety were still to be measured under the risk-utility
The last case in the trilogy of decisions leading to Beshada was
Freundv. Cellofilm Properties.0 Freundsquarely presented the issue
whether any meaningful distinction can be made between the theories
of strict liability and negligence. 61 The trial court had ruled that the
strict liability charge in a failure to warn case was superfluous in
conjunction with a negligence charge because "any 'defect' in the
adequacy of the warning would necessarily result from negligence by
the defendant." 2
On appeal, the New Jersey Supreme Court seized the opportunity
to synthesize its holdings in Cepeda and Suter. The court focused on
step one of the risk-utility analysis, and stated that it contained the
essential difference between the two approaches to liability: "[U]nder
strict liability, the seller's knowledge is presumed; it is 'assume[d] the
seller knew of the product's propensity to injure as it did.' . . . In
negligence cases, such knowledge must be proved; the standard is
what the manufacturer 'knew or should have known.' "63
In adopting the risk-utility analysis, the Freund court clearly
rejected any notion that a plaintiff is required to prove that the
manufacturer of the product knew or should have known of its danger.
Rather, the court held, trial courts must charge juries that knowledge
of the dangerous trait of a product is imputed to the manufacturer
without regard to unforeseeable dangers or prevailing industry
standards at the time a defective product was injected into the stream of
B. Beshada and its Progeny
In Beshada v. Johns-Manville Products Corp. ,65 the New Jersey
Supreme Court relied on the risk-utility analysis to strike the
defendants' state-of-the-art defense.68 The complaint alleged that the
asbes63. Id. at 239, 432 A.2d at 930 (citation omitted).
64. Id. at 242-43, 432 A.2d at 932. Prior to Freund, a Washington appellate
court, in Little v. PPG Indus., 19 Wash. App. 812, 579 P.2d 940 (
), affd as
modified on othergrounds, 92 Wash. 118, 594 P.2d 911 (
), similarly held that
the degree of care exercised by a manufacturer or the foreseeability of the dangers
involved in the use of a product are not relevant factors in a strict liability case based
upon a manufacturer's failure to warn. Id. at 822, 579 P.2d at 947. Notably, the
holdings of both Little and Freund are inapposite to comment j of the Restatement
(Second) of Torts § 402A (1965). Comment j imposes a duty to warn on the
manufacturer when the manufacturer knows or should know of a product's dangers.
Comment j's suggestion, however, that strict liability is based upon the manufacturer's
knowledge or reasonable imputation of knowledge is inconsistent with the basic
premise underlying strict liability because it shifts the emphasis away from the
condition of the product and back to the reasonableness of the manufacturer's
conduct. See Little v. PPG Indus., 19 Wash. App. 812, 821, 579 P.2d 940, 946
), af-'d as modified on othergrounds, 92 Wash. 118, 594 P.2d 911 (
while § 402A pays lip service to strict liability in failure to warn cases, comment j in
fact expresses a negligence standard (fault requirements) that is clearly incongruous
with strict liability principles. Id.; see Freund v. Cellofilm Props., 87 N.J. 229,
23641, 432 A.2d 925, 929-31 (
65. 90 N.J. 191, 447 A.2d 539 (
66. Id. at 199-205, 447 A.2d at 544-47. Notably, in some cases Beshada has
proven to be a two-edged sword for plaintiffs seeking punitive damages. See Wolf v.
Proctor & Gamble Co., No. 82-130 (D.N.J. Dec. 22, 1982); Cold v. Johns-Manville
Sales Corp., 553 F. Supp. 482 (D.N.J. 1982). In both Wolf and Cold the courts
stated that because Beshada eliminates all notions of culpability or fault from a strict
liability case, a punitive damage award is unavailable. This reading of Beshada is too
tos dust inhaled by the plaintiffs while working with products
manufactured and distributed by the defendants caused them various types
of pulmonary injuries.6 7 The plaintiffs sought compensatory damages
under the theory of strict liability in tort for the defendants' failure to
warn of the health hazards posed by the products containing
The defendants asserted the state-of-the-art defense to the
obligation to warn. 9 They argued that prior to 1964 no conclusive scientific
or medical evidence indicated that a health hazard existed for those
working with asbestos-containing products.7 0 Thus, the Beshada
defendants contended, they were not obligated to warn of hazards
unknown, and more importantly, "unknowable," at the time their
products were placed into the stream of commerce).1
Prior to trial, the plaintiffs filed a motion to strike the
state-of-theart defense, relying primarily on the Freunddecision. The trial court
denied the plaintiff's motion . 2 To reach this conclusion it reasoned
that the imputation to defendants of knowledge of the product's
dangerous propensities as manifested at the time of trial did not amount to
an irrebuttable presumption.7 3 Defendants have the right, according
to the trial court, to introduce evidence that they did not have
knowledge of the product's danger at the time of manufacture because at
that time the danger was not "known to the world. '74
The New Jersey Supreme Court reversed the lower court, holding
that the state-of-the-art defense is incompatible with the principles of
strict liability in design defect cases.7 5 The court stated:
Essentially, [the] state-of-the-art[defense] is a negligence defense.
It seeks to explain why defendants are not culpable for failing to
provide a warning. [Defendants] assert, in effect, that because they
could not have known the product was dangerous, they acted
reasonably in marketing it without a warning. But in strict liability
restrictive. Arguably, a punitive damage award is consistent with Beshada to the
extent that it tends to encourage manufacturers to take greater care in marketing
their product. On the other hand, the Beshadacourt never purported to rely on the
policies underlying punitive damage awards-punishment and deterrence-as a
basis for its holding. In addition to proving that he has a right to compensatory damages
when injured by a defective product, an injured plaintiff should also have the
opportunity to prove that the defendant's acts were malicious or willful and wanton
so as to justify an award of punitive damages.
67. 90 N.J. at 196, 447 A.2d at 542.
68. Id. at 196-97, 447 A.2d at 542.
69. Id. at 197, 447 A.2d at 542-43.
71. Id. at 196, 447 A.2d at 542.
73. Id. at 199, 447 A.2d at 543.
75. Id. at 202-09, 447 A.2d at 545-49.
cases, culpability is irrelevant. The product was unsafe. That it was
unsafe because of the state of technology does not change the fact
that it was unsafe. Strict liability focuses on the product, not the
fault of the manufacturer. 76
The Beshada court explained that its holding is consistent with the
risk-spreading policy upon which the doctrine of strict liability in tort
is based.77 The court reasoned that by imposing liability upou the
manufacturer as opposed to the innocent plaintiff, "the costs of the
product will be borne by those who profit from it: the manufacturers
and distributors who profit from its sale and the buyers who profit
from its use."'78 The court further commented that its decision would
encourage better research and development: 79 "The 'state-of-the-art'
at a given time is partly determined by how much industry invests in
safety research. By imposing on manufacturers the costs of failure to
discover hazards, we create an incentive for them to invest more
actively in safety research. 80
The Beshada court also noted that in addition to spreading the loss
and encouraging safety research, its holding would simplify the
factfinding process for jurors.8 ' The court explained that its decision
would avoid confusing and costly battles, common to negligence
actions, among experts who debate the "scientific knowability" of a
product's dangers at the time it was marketed.8 2 Finally, the court
expressed its concern that the state-of-the-art defense might lead the
jury to believe that fault, not the condition of the product, was at
While the court expressly limited its holding to failure to warn
cases, it intimated in a footnote 4 that the defense would also be
unavailable in a defective design case based upon the manufacturer's
failure to include a safety device. Since Beshada, the New Jersey
Supreme Court, in Michalko v. Cooke Color & Chemical Corp.,s5
76. Id. at 204, 447 A.2d at 546 (emphasis added).
77. Id. at 205-06, 447 A.2d at 547.
78. Id. at 205, 447 A.2d at 547.
79. Id. at 207, 447 A.2d at 548.
81. Id. at 207-08, 447 A.2d at 548-49.
82. Id. "Scientific knowability," according to the Beshada court,
refers not to what in fact was known at the time, but to what could have
been known at the time. In other words, even if no scientist had actually
formed the belief that asbestos was dangerous, the hazards would be
deemed "knowable" if a scientist could have formed that belief by applying
research or performing tests that were available at the time.
Id. at 207, 447 A.2d at 548 (emphasis in original).
83. Id. at 208, 447 A.2d at 548.
84. Id. at 204 n.6, 447 A.2d at 546 n.6.
85. 91 N.J. 386, 451 A.2d 179 (
strengthened the inference that it would disallow the state-of-the-art
defense in all other design defect cases if given the opportunity to so
rule. In Michalko, the court applied the principles set forth in Beshada
to a case involving the failure to incorporate a safety device into an
industrial machine. 86 Citing Beshada, the court reiterated the now
pwreoldl-uecstt'asb.ldisahnegderaoxuisomprothpaetnsinitieasdeissigi mnpduetfeedct tcoasteh, eknmoawnluefdagcetuorfert.h1e7
Because the availability of the state-of-the-art defense was not an issue
in Michalko, the court did not specifically preclude the assertion of the
defense in a design defect case. 8 This would appear, however, to be
the next logical step for the New Jersey Supreme Court to take.
Indeed, one court has expressly taken this step. In Carterv.
JohnsManville Sales Corp.,89 the United States District Court for the
Eastern District of Texas interpreted Texas law and expressly held that the
state-of-the-art defense is unavailable in a strict products liability case
based on design defects.90 Interestingly, however, its interpretation of
Texas law required it to hold that the defense was available in failure
to warn cases. 91
The unavailability of the state-of-the-art defense will have its
greatest impact in toxic tort cases like Beshada, in which the plaintiff's
injury does not manifest itself until some time after the first exposure
to the defective product. For example, in Wolf v. Proctor& Gamble
Co.,92 the United States District Court of New Jersey applied Beshada
in an action brought by a woman who had developed toxic shock
syndrome allegedly as a result of using "Rely" tampons.9 3 The
defendants in Wolf argued that they had no duty to warn of the dangers they
were unaware of at the time of marketing.94 The court used Beshada
to strike the defendant's state-of-the-art defense with respect to the
strict liability claim, but allowed the defense to rebut the negligence
86. Id. at 394-95, 451 A.2d at 183.
88. In Michalko, the court held that "an independent contractor who undertakes
to rebuild part of a machine in accordance with the specifications of the owner can
be held strictly liable for breach of its legal duty to... make the machine safe or to
warn of the dangers inherent in its use." Id. at 403, 451 A.2d at 187-88. Interestingly,
the court left open the issue whether placing adequate warnings on a machine would
constitute a factual or legal defense to a claim of strict liability based on the failure to
manufacture or rebuild an otherwise safe machine. Id. at 403 n.5, 451 A.2d at 187
89. 51 U.S.L.W. 2552 (E.D. Tex. Mar. 1, 1983).
90. Id. at 2553.
91. Id. The court cited Beshada with approval, stating that New Jersey, unlike
Texas, had brought "the failure to warn case in line with other strict liability cases."
92. No. 82-130 (D.N.J. Dec. 22, 1982).
93. Id. slip op. at 1, 3-4.
94. Id. at 1-2.
claim.9 5 It is equally conceivable that Beshada could appropriately be
applied in the widely publicized formaldehyde and Agent Orange
litigation. Two respected commentators have opined that the logic of
Beshada would allow recovery for the first time even in cases brought
against cigarette manufacturers for the diseases caused by the use of
their tobacco products. 96
The logical extension of strict liability principles in Beshada was
neither surprising nor revolutionary. Its significance is heightened
when considered in light of the fact that "New Jersey, along with
California, has [in recent years] set the trend in most important
developments in products liability law."'9 7 The New Jersey Supreme
Court's preeminent role in the evolution of products liability law is
likely to render its decision in Beshada, and more importantly, its
practical implications, subject to close scrutiny by courts and
III. Is BESHADA OR STRICT LIABILITY AT FAULT?
Notwithstanding its relative youth, the Beshada decision has
elicited much comment." Certain critics of the decision have contended
that if the danger was unknowable at the time of marketing, it is
inconsistent to label a product defective at that time on the basis of
knowledge subsequently obtained. 9 This argument finds some
support in the court's own analysis. Two tests were suggested for
determining if a product is defective: "(
) does its utility outweigh its risk?
) if so, has that risk been reduced to the greatest extent possible
consistent with the product's utility?"' 0 0 Thus, the critics note, the
court seemingly contradicts itself by declaring that a manufacturer is
liable for marketing a defective product regardless of its ability to
know of the dangers while at the same time defining a defective
product as one that has not been made safe to the "greatest extent
According to the Beshada court, however, these two tests merely
"explain the role of state-of-the-art in strict liability cases. In
actuality, the only test for product safety is whether the benefit outweighs
the risk."' 02 Thus, although knowledge of safer alternatives at the
time of manufacture is certainly a factor in determining whether a
product's risks outweigh its utility, the unavailability of such
knowledge does not constitute a complete defense to a strict liability
claim. 103 By imputing knowledge that was unavailable at the time of
marketing, the trier of fact is able to make an objective determination
of the product's actual dangerousness without interference from
misleading negligence concepts. 04
Another, more significant criticism of Beshada is that its practical
effect is to impose "absolute" liability on manufacturers. 10 5 This
perception, however, is incorrect. Rather than imposing strict liability
merely because the product caused injury, the Beshada court would
impose liability only if the risk of the product outweighed its utility. 06
Thus, removing the state-of-the-art defense from the defendant's
arsenal does not render him powerless. In all design defect cases, the
defendant may escape liability if it can demonstrate that, as
marketed, the product's utility outweighed its risk. To do so, the
defendant has the opportunity to demonstrate that it would have been
impossible to eliminate the unsafe character of the product without
either incurring undue expense or destroying the product's
usefulness. 07 Concededly, in cases in which it is the absence of a warning
that renders the product defective, the value of this particular defense
may be more theoretical than real, as placing a warning on a product
is an easy task and will seldom detract from the product's utility. 0 8
Even in these situations, however, the defendant may escape liability
if it can prove that "under the technological capabilities existing at the
time the product was marketed, it was unfeasible to include a
warning on the product." 109
Moreover, even after Beshada, the plaintiff must still prove that the
product was defective and capable of producing the injuries
incurred."10 In addition, the plaintiff must demonstrate that the
defendant's product was the proximate cause of the plaintiff's injuries."'
Finally, the plaintiff must demonstrate that the defect existed when
the product was distributed by and under the control of the
Therefore, rather than imposing absolute liability on a
manufacturer, Beshada correctly removes one of the vestiges of negligence and
advances the goals and policies of strict liability. "To permit the
defendant to defeat a strict liability claim by proving that it could not
have foreseen the danger, in effect by proving that it was not
negligent, would fly in the face of the entire history of strict liability." 1 3
Another criticism of Beshada suggests that "[t]he fundamental flaw
[in the decision] is that it utilizes the general [principle] of strict
liability-to protect consumers from defective products-as a
justification for emasculating the requirement that the product be defective
before liability results.""14 This assertion unwittingly highlights what
the critics' polemics otherwise obscure-rather than emasculating the
requirement, Beshada merely applied it in accordance with the legal
principles governing the cause of action asserted. Beshada was by no
means the first case in which the focus of strict products liability was
shifted from the fault of the tortfeasor to the safety of the consumer." 5
Apparently, then, it is the policy of strict liability itself, not Beshada,
to which these critics object.
Given the academic nature of the defenses available in design defect
cases premised on inadequate warning, the critics may not be
incorrect in maintaining that Beshada, as a practical matter, decrees
absolute liability when a plaintiff establishes all the elements of a prima
facie case. Even so, this does not necessarily lead to the conclusion that
Beshada is an aberration from the principles of strict liability. In fact,
one court has stated that Beshada "has brought the failure to warn
case in line with other strict liability cases." 1 6
Beshada'ssolicitude for the injured plaintiff may well comport with
the intentions of those instrumental in the development of strict
liability. Justice Traynor, in his concurrence to Escola v. Coca Cola
Bottling Co. ,", stated that "it should now be recognized that a
manufacturer incurs an absoluteliabilitywhen an article that he has placed on
the market ... proves to have a defect that causes injury to human
beings."" 8 In 1957, Professor James similarly stated that "[s]trict
liability is to be preferred over a system of liability based on fault
wherever you have an enterprise or activity, beneficial to many,
which takes a more or less inevitable accident toll of human life and
limb.""" In light of these and other similar expressions of the policies
of strict liability, 2 0 it could be argued that Beshada actually falls short
of implementing these objectives.
The debate concerning the proper limits of strict liability, or
whether strict products liability should exist at all, is far from over.
The Beshada decision, however, should not be viewed as a
revolutionary decision in this debate. Rather, in proper perspective, Beshada is
merely a logical consequence of the policies of strict liability. Critics
who so vehemently denounce this decision are, in reality, attacking
the very foundation of strict products liability. Acknowledgement of
this underlying fact is essential to resolution of the difficult questions
of policy that must be confronted.
Fordham University; J.D . 1981 , Syracuse University. * * Member, Wilentz, Goldman & Spitzer, Woodbridge, New Jersey, B.S. 1968 ,
University of Rochester; J.D. 1971 , University of Pennsylvania. Mr. Darnell argued for appellants in Beshada v. Johns-Manville Prods . Corp.,
90 N.J. 191 , 447 A.2d 539 ( 1982 ). Mr. Placitella joined with him on the brief . 1 . 90 N.J. 191 , 447 A.2d 539 ( 1982 ). 2. See Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743 , 748 - 49 (Tex.
1980 ). 3. The state-of-the-art defense should be distinguished from the defense that
is sometimes also referred to as the state-of-the-art defense . See 2 L. Frumer & M.
Friedman , Products Liability § 16A[i], at 3B-176 .2 to - 176 .4 ( 1982 ); Keeton, The
Meaningof Defect in ProductsLiability Law-A Review of Basic Principles , 45 Mo.
L. Rev . 579 , 594 - 95 ( 1980 ). This latter defense could be invoked, for example, if the
product was manufactured or distributed. 4. Beshada v. Johns-Manville Prods . Corp., 90 N.J. 191 , 208 - 09 , 447 A.2d 539 ,
548- 49 ( 1982 ). 5. Freund v. Cellofilm Props., 87 N.J. 229 , 239 , 432 A.2d 925 , 930 ( 1981 );
Suter v . San Angelo Foundry & Mach. Co., 81 N.J. 150 , 169 , 406 A.2d 140 , 149
( 1979 ); Cepeda v . Cumberland Eng'g Co., 76 N.J . 152 , 171 - 72 , 386 A.2d 816 , 825
( 1978 ), overruled on othergrounds, Suter v. San Angelo Foundry & Mach. Co., 81
N.J. 150 , 177 , 406 A.2d 140 , 153 ( 1979 ). 6. Birnbaum & Wrubel , N.J. High CourtBlazes New PathIn Holding a Manu-
facturerLiable, Nat'l L.J. , Jan . 24 , 1983 , at 24, col. 1; Platt & Platt, Moving from
Strict to 'Absolute'Liability,id ., Jan . 17 , 1983 , at 18, col. 3; Berry , The Implications
of Beshada for Products Liability Actions: The Defense Viewpoint, 5 Dictum 6
(N.J.B.A. Young Law . Div., Nov . 1982 ). 7. Interagency Task Force on Products Liability: Final Report ( 1978 ), reprinted
in 5 L. Frumer & M. Friedman , supra note 3, at 681-82 app. G. 8. Id. at 681 . 9. Id. 10 . 32 N.J. 358 , 161 A.2d 69 ( 1960 ). 11. Id. at 413-14, 161 A.2d at 99-100 . 12 . For example, the Uniform Commercial Code requires that notice to the seller
product. U.C.C. § 2- 607 ( 3 ) (a ) ( 1977 ). 34 . See Freund v. Cellofilm Props., 87 N.J. 229 , 243 - 44 , 432 A.2d 925 , 932 - 33
( 1981 ). See generally 1 L. Frumer & M. Friedman , supra note 3, § 12 .01 (issue of
edge is more important); id . § 12 .01 (notice or knowledge of danger is a prerequi-
site to a finding of negligence ). 35 . See 1 L. Frumer & M. Friedman , supra note 3,§ 8 . 03 , at 164- 65 . 36 . Restatement (Second) of Torts § 402A(2)(a ) ( 1965 ). 37 . 59 Cal. 2d 57 , 377 P.2d 897 , 27 Cal. Rptr. 697 ( 1963 ). 38 . Id. at 62 , 377 P.2d at 900, 27 Cal. Rptr. at 700 . 39. 2 L. Frumer & M. Friedman , supra note 3, §§ 16A-16A . 40. Restatement (Second) of Torts § 402A(2)(a ) ( 1965 ). 41 . Id . § 402A comment c. 42 . 90 N.J. 191 , 447 A.2d 539 ( 1982 ). 43 . Birnbaum & Wrubel, supra note 6, at 24; Platt & Platt, supra note 6, at 15;
Berry , supra note 6, at 7. In general, these commentators assert that the Beshada
decision will lead to absolute liability . 44. Freund v. Cellofilm Props., 87 N.J. 229 , 243 , 432 A.2d 925 , 932 ( 1981 );
Suter v . San Angelo Foundry & Mach. Co., 81 N.J. 150 , 158 , 406 A.2d 140 , 143 - 44
( 1979 ); Cepeda v . Cumberland Eng'g Co., 76 N.J . 152 , 168 , 386 A.2d 816 , 823
( 1978 ), overruled on othergrounds, Suter v. San Angelo Foundry & Mach. Co., 81
N.J. 150 , 177 , 406 A.2d 140 , 153 ( 1979 ). 45 . 76 N.J. 152 , 386 A.2d 816 ( 1978 ), overruled, Suter v. San Angelo Foundry &
Mach. Co. , 81 N.J. 150 , 177 , 406 A.2d 140 , 153 ( 1979 ). 46 . Wade, supra note 26, at 834; accord Keeton, Product Liability and the
Aleaning of Defect , 5 St. Mary's L.J. 30 , 37 - 38 ( 1973 ). 47. 76 N.J. at 172-75, 386 A.2d at 825-27 . 48 . Keeton, supra note 46, at 37-38; see, e.g., Jackson v . Coast Paint & Lacquer
Co., 499 F.2d 809 , 812 - 15 ( 9th Cir . 1974 ); Welch v . Outboard Marine Corp., 481
F. 2d 252 , 256 ( 5th Cir . 1973 ); Hamilton v . Hardy , 37 Colo. App. 375 , 383 - 85 , 549
P. 2d 1099 , 1107 - 08 ( 1976 ); Ulrich v . Kasco Abrasives Co., 532 S.W.2d 197 , 200 (Ky.
1976 ); Cepeda v . Cumberland Eng'g Co., 76 N.J . 152 , 163 , 386 A.2d 816 , 821 54 . Id. at 174-77, 406 A.2d at 152-53 . 55 . The instruction reads:
76 N.J. at 174 , 386 A.2d at 827 (quoting Wade, supra note 26 , at 839- 40 ). This
81 N.J. 150 , 174 - 76 , 406 A.2d 140 , 152 - 53 ( 1979 ). 56 . 76 N.J. at 174 , 386 A.2d at 827. 57. 81 N.J. at 175, 406 A.2d at 152. 58. Id. at 177 , 406 A.2d at 153. In Cronin v. J.B.E. Olson Corp., 8 Cal. 3d 121 ,
501 P.2d 1153 , 104 Cal. Rptr. 433 ( 1972 ), the California Supreme Court also
model jury charge . Id. at 134-35 , 501 P.2d at 1163, 104 Cal. Rptr. at 443. The court
but also that the condition created be "unreasonably dangerous." Id. at 133 , 501
P. 2d at 1162, 104 Cal. Rptr. at 442. 59. 81 N.J. at 177, 406 A.2d at 153. 60 . 87 N.J. 229 , 432 A.2d 925 ( 1981 ). 61. Id. at 236, 432 A.2d at 929. 62. Id. at 235-36, 432 A.2d at 928. 95. Id. at 3-4. 96 . 1 L. Frumer & M. Friedman , supra note 3, § 16A[f], at 3B-155 to - 156 .
To date, there is no record of a plaintiff prevailing on this type of case within the 50
states. Id. 97. Platt & Platt, supra note 6 , at 15, col. 4; see, e.g., Barker v . Lull Eng'g Co.,
20 Cal. 3d 413 , 573 P.2d 443 , 143 Cal. Rptr. 225 ( 1978 ); Cronin v . J.B.E. Olson
Corp., 8 Cal. 3d 121 , 501 P.2d 1153 , 104 Cal. Rptr. 433 ( 1972 ); Suter v . San Angelo
Foundry & Mach. Co., 81 N.J. 150 , 406 A.2d 140 ( 1979 ); Cepeda v . Cumberland
Eng'g Co ., 76 N.J. 152 , 386 A.2d 816 ( 1978 ), overruled on other grounds, Suter v.
San Angelo Foundry & Mach. Co., 81 N.J. 150 , 406 A.2d 140 ( 1979 ). 98. See supra note 6 . 99. Birnbaum & Wrubel, supra note 6, at 24, col. 4 . 100. Beshada v. Johns-Manville Prods . Corp., 90 N.J. 191 , 201 , 447 A.2d 539 , 545
( 1982 ). 101 . Birnbaum & Wrubel, supra note 6, at 24, col. 4. 102. 90 N.J. at 201 n.4, 447 A.2d at 545 n.4. 103. See id. 104. See id. at 204, 447 A.2d at 546. 105. Birnbaum & Wrubel, supra note 6 , at 24, col. 1; Platt & Platt, supra note 6,
at 18, col. 3. According to the Platts, " '[d]efective' has now achieved a new mean-
ing. It can be defined simply as 'a product which causes injury . '" Id. 106. 90 N.J. at 201, 447 A.2d at 545 . 107. See Carter v. Johns-Manville Sales Corp ., 51 U.S.L.W. 2552 , 2553 (E.D.
Tex . Mar. 1 , 1983 ). 108 . Beshada v. Johns-Manville Prods . Corp., 90 N.J. 191 , 202 , 447 A.2d 539 , 545
( 1982 ) ; see Michalko v . Cooke Color & Chem . Corp., 91 N.J. 386 , 402 , 451 A.2d
179 , 187 ( 1982 ); Freund v . Cellofilm Props., 87 N.J. 229 , 238 , 432 A.2d 925 , 929
( 1981 ). 109 . Carter v. Johns-Manville Sales Corp ., 51 U.S.L.W. 2552 , 2553 (E.D. Tex .
Mar. 1 , 1983 ). 110 . Michalko v. Cooke Color & Chem . Corp., 91 N.J. 386 , 394 , 451 A.2d 179 ,
183 ( 1982 ). 111 . For a discussion of causation or proximate cause in strict products liability
and Strict Liability , 64 Mich. L. Rev. 1350 , 1375 - 77 ( 1966 ). 112 . Michalko v. Cooke Color & Chem . Corp., 91 N.J. 386 , 394 , 451 A.2d 179 ,
183 ( 1982 ); Scanlon v . General Motors Corp., 65 N.J . 582 , 590 - 91 , 326 A.2d 673 , 677
( 1974 ). 113 . Carter v. Johns-Manville Sales Corp ., 51 U.S.L.W. 2552 , 2553 (E.D. Tex .
Mar. 1 , 1983 ). 114 . Platt & Platt, supra note 6, at 18, col. 4 . 115. E.g., Suter v . San Angelo Foundry & Mach. Co., 81 N.J. 150 , 169 , 406 A.2d
140 , 149 ( 1979 ); see 2 L. Frumer & M. Friedman , supranote 3 , § 16A[f][iv][A], at
3B- 136 .2(g) to -136.2(h); Restatement (Second) of Torts § 402A comment g ( 1965 ). 116 . Carter v. Johns-Manville Sales Corp ., 51 U.S.L.W. 2552 , 2553 (E.D. Tex .
Mar. 1 , 1983 ). 117 . 24 Cal. 2d 453 , 150 P.2d 436 ( 1944 ). 118 . Id. at 462 , 150 P.2d at 440 (Traynor, J., concurring) (emphasis added) . 119 . James, GeneralProducts-ShouldManufacturersBe Liable Without Negli-
gence? , 24 Tenn. L. Rev. 923 , 923 ( 1957 ). 120 . See Calabresi & Hirschoff, Toward a Test for Strict Liability in Torts, 81
Yale L.J . 1055 ( 1972 ) (suggesting that the only issue is which party is the better risk-
bearer); Epstein, A Theory of Strict Liability, 2 J. Legal Stud . 151 ( 1973 ) (suggesting