Product Liability Reform Proposals in Washington--A Public Policy Analysis

Product Liability Reform Proposals In Washington-A Public Policy Analysis I. INTRODUCTION The current interest in statutory reform of product liability law' presents a unique opportunity for the Washington Legislature to make some principled decisions in furtherance of the policies behind product liability law.2 Uncertainty as to the law, unpredictability of the outcome of litigation, and perceptions of inequities in the balancing process" have increased the costs of insurance, litigation, and products, creating a crisis atmosphere, pitting manufacturers against consumers in a polarized confrontation. 5 Manufacturers seek to minimize their exposure to liability, reduce the size of judgments, and generally restrict claimants' ability to prevail. 6 On the other hand, plaintiffs' representatives seek to continue the present system which they perceive as favoring claimants.' The legislature, in deciding the future direction of product liability law in Washington, must look beyond these polarized interests to policy considerations for guidance. The policies underlying product liability law support legislation defining a single, clear cause of action, applying cor1. See, e.g., [19791 7 PROD. SAFwrT & Lmx. REP. (BNA) 608-09 (interview with U.S. Rep. LaFalce); id. at 635 (business and consumer groups endorse proposal); id. at 588 (Pennsylvania businesses report problems); Phillips, An Analysis of Proposed Reform of Products Liability Statutes of Limitations, 56 N.C.L. REv. 663 (1978). 2. For a discussion of the policies of risk distribution, consumer protection, and safety incentive, see the text accompanying notes 23-28 infra. 3. NATIONAL TECHNICAL INFORMATION SERVICE, U.S. DEP'T OF COMMERCE, INTERAGENCY TASK FORCE ON PRODUCT LLBnxry, I PRODUCT LIABILITY: FINAL REPORT OF THE LEGAL STUDY 19 (1977) [hereinafter cited as LEGAL STUDY]; UNIFORM PRODUCT LIABILITY ACT § 101, 44 Fed. Reg. 62,713, 62,716 (1979) [hereinafter cited as U.P.L.A.]. 4. LEGAL STUDY, supra note 3, at 19-31; see U.P.L.A., supra note 3, § 101. 5. See [1979] 7 PROD. SAFETY & LL4. REP. (BNA) 742-43 (lawyers, consumers, insurance officials clash at hearing); id. at 905 (consumers, insurance industry clash); The Products Liability Bill (R.I.P. 1979-But to be Born Again), 33 WASH. ST. B. N-ws, No. 7, at 7 (July 1979). 6. See LEGAL STUDY, supra note 3, at 19-31; The Products Liability Bill (R.I.P. 1979-But to be Born Again), supra note 5, at 7. 7. See LEGAL STUDY, supra note 3, at 19-31; The Products Liability Bill (R.I.P. 1979-But to be Born Again), supra note 5, at 7; Remarks of Ron Bland, President, Washington State Trial Lawyers Ass'n, before the Washington State Senate Select Committee on Product Liability (Sept. 8, 1979) (unpublished testimony on file in Senate Research Center, Olympia, Wash.). University of Puget Sound Law Review [Vol. 4:143 parative fault principles, and adopting the contribution doctrine; however, those same policies require retaining the doctrine of joint and several liability, and rejecting proposals for a statute of repose.' This comment examines the major reform proposals in light of product liability policies, the common law, and fundamental standards of fairness. It compares the alternatives of continuation under the present system, the model Uniform Product Liability Act (U.P.L.A.),' and state legislative proposals. Finally, this comment offers specific recommendations regarding product liability legislation for Washington State. II. HISTORIcAL DEVELOPMENT A brief overview of the historical development of product liability law helps to focus the issues involved in modern legislative reform proposals. The common law first addressed modern product liability issues in 1842 in Winterbottom v. Wright,'0 denying recovery to a passenger in a defective carriage because he lacked privity of contract with the manufacturer." Judicially created exceptions slowly eroded the Winterbottom privity rule12 until 1916 when Judge Cardozo broke the privity barrier in MacPherson v. Buick Motor Co.,'8 holding a manufacturer liable to the ultimate purchaser on a negligence theory." The next major development came in 1960 when in Henningsen v. Bloomfield Motors,"5 under an implied warranty theory, the court held a manufacturer and intermediate sellers liable to the ultimate user, who was not even a purchaser.' 6 Because the negligence and warranty theories inadequately address the inherent 8. A number of important issues are beyond the scope of this comment, including: insurance law reform, workers compensation reform, rules of evidence, affirmative defenses, and governmental tort liability limitations. 9. See U.P.L.A., supra note 3, § 101. 10. 10 M. & W. 109, 152 Eng. Rep. 402 (1842). 11. Id. This holding, requiring privity of contract, is actually an interpretation of the case that stood until 1905 when Professor Bohlen discredited it as a misinterpretation. Bohlen, The Basis of Affirmative Obligations in the Law of Tort, 44 AM. L. REG., N.S. 209 (1905). 12. E.g., Thomas v. Winchester, 6 N.Y. 397 (1852). See generally W. PROSSER, HANDBOOK OF THE LAW OF TORTS § 96, at 642 (4th ed. 1971). 13. 217 N.Y. 382, 111 N.E. 1050 (1916). 14. Id. 15. 32 N.J. 358, 161 A.2d 69 (1960). 16. Id. 1980] Product Liability Reform problems of such cases,17 the California Supreme Court in Greenman v. Yuba Power Products,8 in 1963, applied the doctrine of strict liability to a product liability case."9 In 1965, the American Law Institute published section 402A of the Restatement (Second) of Torts, 0 leading to adoption of strict product liability by a majority of United States jurisdictions. 2 1 Washing22 ton joined the majority in 1969 with Ulmer v. Ford Motor Co. Contemporary reform proposals result in large part from frustration with judicial efforts to interpret and apply strict product liability in light of the policies that led the Washington Supreme Court to adopt it eleven years ago. 17. The difficulty of proving the existence of a duty, required in negligence theory, proved all but insurmountable to many injured parties. Under warranty theory, the doctrine of privity, combined with short limitation periods, stringent notice requirements, and disclaimer provisions, often precluded recovery by injured parties unless the plaintiff persuaded a court to stretch the doctrines beyond their prior limits. See generally W. PROSSER, supra note 12, §§ 96-98; RESTATEMENT (SECOND) OF TORTS § 402A, Comments b & m (1965); Comment, Products Liability in Pennsylvania: Precedents, Problems and Proposals, 83 DICK. L. REV. 565 (1979). 18. 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1963). The Greenman court essentially adopted Justice Traynor's rationale in Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453, 461-68, 150 P.2d 436, 440-44 (1944) (Traynor, J., concurring). 19. Greenman v. Yuba Power Products, 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1963). Justice Traynor, in Greenman, held a manufacturer is strictly liable (...truncated)