Product Liability Law Has Come of Age

Cleveland State University EngagedScholarship@CSU Cleveland State Law Review Law Journals 1974 Product Liability Law Has Come of Age Buell Doelle University of Michigan Follow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrev Part of the Torts Commons How does access to this work benefit you? Let us know! Recommended Citation Buell Doelle, Product Liability Law Has Come of Age, 23 Clev. St. L. Rev. 195 (1974) This Article is brought to you for free and open access by the Law Journals at EngagedScholarship@CSU. It has been accepted for inclusion in Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact . Spring 1974 Volume 23 Number 2 Product Liability Law Has Come of Age Buell Doelle* Product Liability: A New Tort What is history but a fable agreed upon? - Napoleon Bonaparte A FABLE BECOME FACT OF PRODUCT LIABILITY LAW is being written into the jurisprudence of every state. Product liability law, as it has matured, has become a nationwide judicial compensation system' which shifts the loss of injury to person or property caused by a defective product to its manufacturer and/or seller.2 Principal reason for this shifting or allocating of losses is the deep pocket of the manufacturing-selling enterprise and its capacity to distribute the burden among all who purchase the product, increasing the price to consumers sufficiently to buy adequate product liability insurance coverage. 3 The logic of this system of loss distribution or allocation, which places the burden upon the enterprise with the best opportunity to avoid the distribution of defective products, cannot'4 be questioned, and there is "no legitimate legal barrier to doing so." To analyze this first complete judicial system of loss distribution - present-day product liability law - is to see that it achieves its goal in our modern technological complex by the simple expedient of abolishing all legal barriers to permit full adversary confrontation of the parties, with resulting accommodation by jury verdict. Unlike legislative systems of loss distribution regardless of fault, 1932, Univ. of Detroit; Adjunct Professor of Engineering Law, Univ. of Michigan; Member of Michigan Bar. The author wishes to acknowledge the assistance of Jay M. Smyser, of the Chicago, Illinois Bar, in the preparation of this article. 1R. Keeton, 9 FoRuM 1, 3 (1973). * J.D., 2Keeton, Products Liability-Some observations About Allocation of Risks, 64 MICH. L. REV. 1329 (1966); 51 J. OF URBAN L., U. DET. L. J. 332, 339 (1973). 3Authorities cited note 2 supra. 4Giberson v. Ford Motor Co., 504 S.W. 2d 8 (Mo. 1974). Published by EngagedScholarship@CSU, 1974 1 CLEVELAND STATE LAW REVIEW (Vol. 23:195 such as workmen's compensation' and no-fault automobile injury reparation ;6 and despite its fabled past and eminent commentators, modern product liability law is a new tort, founded solidly upon fault, not liability without fault, nor even absolute liability or strict liability, as commentators still insist.' Consumerism, the Jury, and Encouraged Settlement Law is the embodiment of the moral sentiment of the people. -Sir William Blackstone A rising tide of consumerism has been caused by improved means of communications and greater awareness of the development of science and engineering to provide better product design, testing procedures, quality control, and research. Consumerism represents "the moral sentiment of the people." It is a natural development of a countervailing force to the increasing concentration of power in large, impersonal business organizations with which the lonely, individual consumer often finds himself engaged in unequal legal battle. Since it is the lonely, individual consumer who so often is drawn for jury duty, it would appear that the modern jury is a peculiarly apt instrument to apply product liability law. Heightening the tide of consumerism has been the zeal of Ralph Nader, and the work of watchdog agencies for the consuming public, as well as federal and state legislation regulating the integrity and safety of products. To all of these factors, in combination, must be attributed both the sThis legislation, then, is a new departure and creates a new liability, resting upon one class in favor of another, without reference to any negligent conduct of the class upon which the burden is cast. In other words, this legislation is wholly in derogation of the common law. It is legislation which awards compensation for the accidental industrial injuries to be added to the cost of production. Andrejwski v. Wolverine Coal Co., 182 Mich. 298, 310, 148 N.W. 684, 685-86 (1914). 6Address by James Dempsey (eminent trial lawyer of White Plains and Peekskill, New York), entitled Fault at the Crossroads, American Bar Association Convention, 1971 at New York, N.Y. (privately printed). 7E.g. Annot., 13 A.L.R. 3d 1057 (1967). Whether or not "strict liability" and "absolute liability" [used interchangeably by Judge Traynor in Escola v. Coca-Cola Bottling Co., 24 Cal. 2d 452, 461, 150 P.2d 436, 440-41 (1944)] should narrow to the more universal term "strict liability" [as used by Dean Prosser, in RESTATEMENT (SECOND) OF TORTS § 402A, comment m at 355 (1965)], it must be recognized that "strict liability" is an unfortunate phrase, misunderstood by the bench and bar alike, which describes a "result." It is neither synonymous with "liability without fault" nor with making a manufacturer or vendor an "absolute" guarantor or insurer. See Bushnell, Defenses to Products Liability Actions, 1966 PROCEEDINGS OF THE PRACTICING LAW INSTITUTE (20 Vesey Street, New York, N.Y.); Piercefield v. Remington Arms Co., 375 Mich. 85, 98, 133 N.W. 2d 129, 135 (1965) wherein it is stated [Slome quibbler may allege that this is liability without fault. It is not. As made clear above, a plaintiff relying upon the rule must prove a defect attributable to the manufacturer and causal connection between that defect and the injury or damage of which he complains. When able to do that, then and only then may he recover against the manufacturer of the defective product. https://engagedscholarship.csuohio.edu/clevstlrev/vol23/iss2/20 2 1974] PRODUCT LIABILITY COMES OF AGE arousal of the natural suspicions of the consuming public, the nurturing of its antagonisms toward the manufacturer-seller of defective products and the increase in product liability claims. 8 With mounting litigation over claims of injury-causing products, appellate judges began to perceive that while "implied warranty" was an amalgam of tort and contract law, it could never serve as a basis for a change in the substantive law from emphasis on "fault" to that of "defect." 9 To meet this change, a peculiarly appropriate instrument was the consumer-jury, which, in performing its function of determining factual issues of "defect," would further extend the liability of the manufacturer-seller (...truncated)