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This website is intended for general knowledge purposes only. However, at the time Prosser was writing the kind of conduct deemed subject to strict liability was rather narrow in American civil society. It should be noted that the absence of a strict liability rule did not necessarily involved class bias in the other direction. That is, in the absence of strict liability there is the common law rule of negligence.
Under negligence theory, the loss is Prosser, Handbook, 2d ed. The question of proof of negligence is a separate matter. There is no class bias involved in allocating responsibility to the party guilty of fault because it is not liable simply by virtue of being a producer.
Also, there was the implicit criticism that a judge-made change in the law was inherently illegitimate in a democratic system of government. However, this applies most clearly when the legislature is the originator of the rule. Hart did not address a rule originally developed by the judiciary.
Prosser stated the reasoning in support of allocating strict liability against defendants in terms that could easily apply to any manufacturer. The term requires such extensive definition, that it seems better not to make use of it at all, and to refer instead to strict liability, apart from either wrongful intent or negligence.
He sought to divorce part of the compensatory system of torts from fault and make it a no-fault system. The argument was centered on the purposes of the torts system. If it was primarily compensatory, then fault limited the ability of the system to seek compensation for Prosser, Handbook on the Law of Torts, 2d ed. The no-fault theory was not only applicable to unusual activities, like using dynamite to create a mine seam, but implicitly could be applied to any activity that traditionally had been evaluated under the standard of fault.
Almost any activity carries a degree of risk of injury to others. Other examples were the federal laws concerning railroads and child labor and state laws regarding foods and intoxicating liquors.
For example, Cornelius Gillam, a law professor at the University of Washington, argued in favor of abolishing privity between manufacturers and consumers in the contract context and in favor of implementing strict liability. He acknowledged his debt Prosser, Handbook, 2d ed. Press, Not only were some of them judges who paved the way by making expansive rulings on product liability issues, all of them were also writers who influenced later generations of judges and academics to support the expansion of tort liability for defective products in the s.
It is to these later generations of judges — those who made the Tort Revolution — to which we shall now turn. And to have that prior success you need a judge either at the trial level or the appellate level creating law in an atmosphere that allows cases to go to the jury. State legislatures had traditionally played only a minor role in the setting of tort policy. Common law tort rules had been left in the hands of the traditional common law policy makers, state court judges, and the question was whether they would support strict liability.
This chapter will investigate and analyze the policy-making roles of the state courts in America in the s that affected the Tort Revolution. The process of legal change began in state courts in the s and s and exponentially grew in the s, when many state supreme courts followed the lead of a few notable state courts and changed their products liability standards from negligence to strict liability.
The tipping point in the gradual expansion of manufacturer liability was a case decided by the California Supreme Court. Led by associate justice Roger Traynor, his court applied strict liability to a manufacturer of any defective product. The courts took the lead in formulating and implementing the strict liability doctrine, making manufacturers and others in the production and distribution chain liable, regardless of fault, for the bodily injuries caused by defectively manufactured and designed products.
Defects would certainly be evidence of fault on the part of a manufacturer, but under a strict liability regime, the plaintiff would only have the burden of proving to a jury that the defect existed and would not need to prove that the manufacturer did something wrong.
This is why strict liability makes recovery much more likely for a plaintiff. The action of the courts shifted tort law from the realm of academic theory to legal practice and into the political realm of the post-New Deal state. Torts — specifically products liability law — became a political issue in the pluralistic American polity.
What had theretofore been a matter of private law became a quasi-public law issue. Once strict liability became a subject of pluralist politics, the legislatures of some states and later the federal government, as is reviewed in Chapters Five and Six began to implement their policy preferences regarding tort liability.
In some states the traditional provenance of the courts in tort law was challenged just at the time judges were taking the lead in the reformulation of tort policy. Thus, in the midst of the Tort Revolution legislatures contended with the courts in the formation of tort law.
When the courts became policy innovators in an area of law previously immune to political interference, it was an unintended consequence that legislators and pluralist politics challenged their authority over tort law. Put simply, what had been apolitical became inherently political.
American Courts as Policy-Making Institutions This chapter will demonstrate that state court judges of the s intentionally played a policy-making role in American tort law. The debate about the role of courts as policy-making institutions is older than the Republic. Ever since the John Locke divided civil government into three powers and Montesquieu argued that liberty did not exist if there was no separate judicial power, there has been a concern among European and American political theorists about the judiciary as a policy-making institution.
Locke divided civil government into three powers: the legislative, executive, and federative. Although the executive and federative the power to make war and treaties were joined, the executive and legislative needed to be separate in order to prevent tyranny at the hands of a single body of governors.
II, Ch. He made the division between not only the legislative and executive powers but also distinguished a judicial power. If the judicial power were joined with one of the other powers, then the courts would be legislators and oppressors. XI, Ch. But the policy-making role of the courts was never formally proscribed.
The early Progressive period in America saw arguments for a formal separation of politics from administration. Scholars of the period doubted that the formal branches of government actually effectuated truly separate spheres of responsibility and power. Even today the extent and breadth of the judicial review power remains controversial among legal historians.
Baltimore: Johns Hopkins Univ. Kelly, Winfred A. II, 7th ed. New York: Norton, , p. Historian Robert Clinton has argued that the power of judicial review was a departmental power, which empowered the Supreme Court to declare unconstitutional only those acts of Congress that impinged upon judicial functions; thus, the Court could not rule upon the constitutionality of legislation concerning non- judicial functions or powers of Congress.
According to Clinton, Marbury v. Madison was merely the an early example of the proper functioning of judicial review. Robert Lowry Clinton, Marbury v. Madison and Judicial Review Lawrence: Univ. Press of Kansas, Sir Edward Coke, an important early seventeenth-century English jurist and member of Parliament, was credited with articulating and perhaps formulating the separation of powers idea in English common law jurisprudence.
The first instance of judicial review, even at the U. Supreme Court level. Gale, Cengage Learning, Harv. One might argue that in a republic the law always should be subject to majority rule rather than left to a minority like the judiciary.
Hastie Edinburgh, , p. Law Sch. As Oliver Wendell Holmes, Jr. Most scholars writing in the twentieth century who were concerned with courts as policy-making institutions concentrated on the United States Supreme Court. The mode of scholarly debate regarding the U. Supreme Court has developed along the lines of pluralist political theory. The most famous discourse, begun by political theorist Robert Dahl in the late s, revolved around the question of whether the U. Supreme Court was a counter-majoritarian institution.
Dahl, writing in in the context of the New Deal Court and early Warren Court decisions, argued that the Court was not counter-majoritarian, but rather reinforced legislative policy preferences and was and should be a policy-making institution.
Thus, he equated a legislative majority i. If the Court thwarted majority opinion, then it often did so only temporarily, either being reversed by legislative action or eventually reversing or distinguishing prior cases. Thus, Dahl could conclude that the elite in Congress were not divergent from, or counter to, the majority in the American context. The chief difference between the U. The federal justices are appointed and hold their seats for life tenure.
However, public opinion should not be equated with elite opinion. Gerald N. Chicago: Univ. The state courts are designed to be part of the majoritarian political process and are ostensibly accountable to the voters. Just like the U. Supreme Court, state supreme courts have played the role of policy makers.
As previously discussed in Chapter One, state supreme courts were very important policy-makers in tort law ever since the late nineteenth century saw the burgeoning of negligence law. A clear example is MacPherson v. Some state legislatures responded by enacting laws that returned their tort law to the fault-based standard.
Emmert and Henry R. However, it is safe to conclude that the state courts were not playing the role of a protector of minority rights. The expansion of tort liability was justified by the argument that consumers were being protected from the carelessness of manufacturers. Thus, the state courts were ostensibly protecting the majority of the public and playing a majoritarian policy-making role.
But this view also reinforces the point that this was a top-down legal revolution, where the state judges took it upon themselves to create new rules benefiting consumers. The Tort Revolution could not have occurred without the growth of judicial policy making throughout the nation. The lack of a clear distinction between judicial and legislative or regulatory functions for courts contributed to the view of many twentieth-century jurists that judges were policy makers and should simply realize their roles, thereby disabusing themselves and the public of the illusory claims of disinterested decision making.
That is, judges should embrace the powers inherent in judicial policy making. There is always an area not covered by legislation in which the courts must revise old rules or formulate new ones, and in that process policy is often an appropriate and even a basic consideration.
If he finds no significant clues in the lawbooks [sic], he will not close his eyes to a pertinent study merely because it was written by an economist or perhaps an anthropologist or an engineer. Hutcheson, Jr. Hutcheson was a U. District Court judge in the Southern District of Texas. They are forceful defenses of the judge-as-legislator, beyond the mere de facto policy-making function of judges as decision-makers.
His reluctance is similar to and reflects Oliver W. Wyzanski, Jr. The minima are supplied by reversals administered by appellate courts.
Many legal scholars of the post-war period supported this view. District Court judge in Boston from until Well into the s scholars were acknowledging and advocating the idea that courts were policy-making institutions in the Cardozoan sociological vein. Keeton also co-authored a study and supported the development of no-fault auto insurance. President Carter appointed him to the Federal District Court in Massachusetts, serving from to This was a view that was shared by many scholars regarding the constitutional decisions of the Supreme Court by the s most writing in the wake of the then-recent activist Warren Court of the s.
The studies of state courts are much fewer in comparison to federal courts and the U. Yet, after the war California developed a reputation for policy innovation. Ruggero J. Jones, ed. Friedman, Robert A. Louisiana was generally a conservative state and New Jersey was generally liberal. The other states in the study, Massachusetts and Pennsylvania, fell in the middle, with more even divisions between policy innovation and restraint. Other scholars have also concluded that political cultural variations can partially account for the different dispositions of state supreme court justices.
Gates and Charles A. Johnson eds. Also, the state courts during the decade from to were extremely active in overruling common law precedents on a wide array of tort issues. The change from negligence to strict liability is arguably the most important of these changes; yet it is only one of many.
Keeton listed thirty-six different examples of doctrinal changes in or affecting tort law, which he termed overruling of case precedents. Some of these changes were minor, such as jury instructions on unavoidable accidents and the standard for a directed verdict, and some very significant, such as the abrogation of governmental and charitable immunity to private suits and abrogation of the contractual privity doctrine in cases of product defects under warranty theory.
Aldisert noted that tort and constitutional law were the prime areas of sociological judging in the mid- s. Roger Traynor — The Revolutionary in the West Most state supreme court justices are not household names. Unlike United States Supreme Court justices of the twentieth century, state justices do not often decide many high-profile political issues.
Therefore, it is all the more notable that Roger Traynor became a well-known justice of the California Supreme Court, known among not only lawyers and judges but covered in the national media. Roger J. Traynor was born in Park City, Utah on February 12, He was the son of first-generation immigrants from County Down, Ireland. His father worked in mining and eventually owned a drayage business. She held a Masters degree in political science and a law degree, both from Berkeley.
Treasury Department in Eleanor Van Horn, Univ. Oral history interview with Mrs. Eleanor Van Horn. The Roger J. When Traynor joined the Court in he had yet to publish anything clearly conveying his views on jurisprudence or the role of courts as policy- making institutions.
Prior to his nomination to the Court, his only publications consisted of law review articles dealing with various taxation and property rights issues. Traynor sought to Roger J. Box T, File 01a, p. Brown, Dedication, Cal. Traynor argued that a careful examination of the holding and dicta in the U. Maryland revealed that states could tax, without permission from Congress, the real property of national banks and the shares held by individuals in such banks.
Supreme Court cases regarding the powers of states to tax capital in order to arrive at an informed opinion regarding the status of the law in What his analytical method revealed was his ability to closely scrutinize legislative and judicial texts and derive, as any good practicing lawyer must, a plausible and cogent argument regarding the possible meanings and implications of the texts.
He argued that the high volume of federal tax cases and the lengthy delays in resolving such cases, whether by judgment or some form of negotiated settlement, was in need of reform. He was concerned with the efficacy of the judicial system in promptly resolving cases and the need for all parties to have their rights and duties determined in a timely manner. Traynor, Book Review, Harv. Among his reform proposals were informal preliminary conferences to settle more disputes, a protest procedure that could be conducted in the field, and a forced disclosure of facts by the IRS Commissioner.
The cases that would be heard by the Board would be composed primarily of legal issues. This entire proposal sought to reduce the number of cases in the formal, centralized tax legal system and thereby reduce the backlog of federal tax cases. It was hoped that the reduction in a backlog would result in more efficient handling of cases at the hearing and appellate stages of the system.
Traynor was less concerned with legal formalism than substantive resolution of disputes. Traynor saw his policy proposals — whether tax or tort issues — as responding to the realities of the legal and economic worlds.
He sought to adapt the law to the real world as he understood it. Traynor was appointed to the California Supreme Court in When a justice chooses to succeed himself by standing for re- election, the voters have only a veto power, which they have never used to reject an incumbent. Starting with a constitutional amendment in , nonpartisan popular election of judges was replaced with an appointment system. Under the California system, the governor appointed a judge, subject to confirmation by an ex officio Commission on Qualifications.
Although Traynor was in a relatively secure job on the Court, he did not immediately voice his support for strict liability. For example, in August he joined a majority in reversing a judgment in favor a minor injured by an exploding milk bottle.
A fourteen-year-old girl was sent by her teacher to buy three milk bottles from a local dairy. The bottles were removed from refrigeration by a dairy employee and given to the girl. She sued the dairy, alleging negligence for failure to wrap the bottles and for supplying a term and then decide whether to resubmit his name for another retention election.
If defeated, the governor would be required to nominate another candidate. There are some states with competitive retention elections. Recent studies have suggested that judicial retention elections became competitive in the latter years of the twentieth century, with experienced challengers having significantly better chances of defeating incumbent state court judges. Melinda Gann Hall and Chris W. Other studies from the s and s suggest that retention elections indicate most state judges were insulated from voters, but that voters would turn out judges in whom they had lost trust.
William K. Hall and Larry T. Paul R. Hall and Kevin T. McGuire, eds. The California Supreme Court held the mere explosion, standing alone, was not evidence of negligence by the dairy. The lone dissent, authored by Justice Jesse W. Carter, argued the dairy was liable under the theory of res ipsa loquitur because the dairy controlled the bottle at the time when negligence had to have occurred.
However, his silence regarding an issue on which he would soon voice strong opinions can be explained by the facts of the case. Exploding bottle cases were fairly common throughout the nation at this time. Traynor may have thought this was a poor candidate for voicing his views on strict liability, especially when no proof existed as to a defect. Paul, Minn. In other words, res ipsa loquitur applies to hold a defendant liable for negligence when the instrument causing injury was in the exclusive control of the defendant at the time of the injury; it is presumed from such a fact that if there was negligence, then it was the defendant that was the only party who could have been negligent.
City Dairy, Inc. Coca Cola Bottling Co. She experienced a five-inch cut that severed nerves and muscles in her hand. Escola underwent an operation under general anesthesia and suffered a permanent disability.
This was the kind of carbonated liquid case the Supreme Court had expressly not decided in Honea the year before. There was no argument about strict or absolute liability by the parties in Escola.
Samuel H. Dollar Amount, to Present," MeasuringWorth, Traynor agreed with the majority that res ipsa loquitur applied but went on to argue that another basis for liability existed. He contended strict liability would provide an incentive to manufacturers to make safer or safe goods. One, Escola v. Coca-Cola Bottling Co. Traynor, like Cardozo, was quite an externalist in his own judicial performance. He was concerned with the effects of rulings beyond the parties to a given case.
He looked to the complex modern industrial state and saw problems that could be Escola, 24 Cal. Traynor, concurring. Samford B. These mystics avoid the blunt fact that all precedents had once to be created by an obscure thought process that apparently equates the creativeness of ancient judges with divination and then equates divination with antiquity.
Those befogged by such double equations are untroubled by the attendant assumptions that the judges of another time have been wise beyond the capacity of contemporary judges and that they have had foresight enough to anticipate contemporary problems, when there is evidence so overwhelmingly to the contrary that it cannot be ignored by even the most obtuse. These mystics are still not ready to concede that contemporary revision or innovation can be left to the judges of our day.
They would leave such tasks instead to the legislators of our day. Traynor echoed the vision of Progressives Roger J. Traynor thought the wisdom of his desires was obvious and the law simply had to be changed in order to accord with his understanding of how the modern industrial economy interacted with the psychological and sociological dispositions of consumers.
As we shall see, Traynor maintained his reformist zeal throughout his career. Field, Activism in Pursuit of the Public Interest, p. Traynor was less poetic than Cardozo, but he was just as innovative in terms of policy creation.
One the other hand … a judge should have at least the day after tomorrow in mind. Paulsen, ed. Ragin and Stephen D. Sugarman, eds. In in another exploding pop bottle case, just five years after Escola, Traynor again complained that doctrines such as res ipsa loquitur afforded insufficient protection to injured plaintiffs.
Aztec Brewing Co. Traynor concurring. Edmonds dissenting. Many of the favorable opinions were voiced before he authored the Greenman decision in After he wrote Greenman, he was even more highly praised. It extends to minimizing the danger to consumers and putting the burden of their losses on those who are best able to minimize the danger and distribute equitably the losses that do occur.
The interest in consumer protection calls for warranties by the maker that do run with the goods, to reach all who are likely to be hurt by the use of the unfit commodity …. Francis E. Harper and Fleming James, Jr. Pound, who as we have seen made his career, first as a sociological jurisprudence advocate, then as a legal realist scholar in the early twentieth century, was by the s disillusioned with legal realism.
For Pound, this was an unfair allocation of the burden of loss upon the entire society without any incentive for the costs to be reduced, since judges would be the one Rev. Lucey, S. Pound believed the judges were not very concerned with lowering costs to the general consuming public. Green made an argument entirely at odds with the prevailing opinion of legal academics. Peairs, Jr. In Peterson v.
Lamb Rubber Co. Traynor filed a lone concurrence, simply referring to his prior reasoning in Escola and Gordon. However, it is important to note that Traynor was not the only member of the California Supreme Court willing to alter the law when he deemed it archaic.
Yellow Cab Co. Supreme Court in overturning racially discriminatory practices at the state and local levels in the wake of the Brown v. Board of Education, Traynor expressed his views on jurisprudence.
Womack, 37 Cal. Traynor was probably introduced to the principles of legal realism during law school. The school, then formally known as the School of Jurisprudence but hereinafter referred to as Berkeley , was greatly influenced by the then-emergent school of legal realist scholars. The generation of students who, like Traynor, became the judicial leaders of the Tort Revolution in the s and s were educated in the law during this formative period. Traynor was taught constitutional law by Thomas Reed Powell, then one of the most prominent legal realists in America.
Traynor did not fear such policy making was anti-democratic or eroded the certainty thought necessary — even by the realists — in the law, especially the common law. Scholar Sandra P. Nourse, of the State Court of Appeals. Epstein, Law at Berkeley, pp. Donald P. Yet, they also reflect his disposition on the state supreme court, where he reached decisions favored by political liberals. In examples beyond tort law, Traynor was known for deciding cases and authoring opinions that rejected alienage distinctions, racial discrimination, inequality in divorce law, and illegal police practices, and supported organized labor.
Traynor, July 28, , pp. Oyama, 29 Cal. Raines, 24 Cal. Snyder, 64 Cal. Reitman, 64 Cal. Sharp, 32 Cal. DeBurgh, 39 Cal. Field, p. Cahan, 44 Cal. Journeyman Barbers, 53 Cal. Although some states had led the way before California, Traynor was intent on abolishing the doctrine.
The case that achieved this result was Muskopf v. Corning Hospital Dist. White … joined the majority to support abolishing the doctrine. In the Muskopf case, Traynor cited Donald P. As we shall see below, a similar result occurred with products liability law. As noted in Chapter Two, Prosser was not only one of the preeminent tort scholars from the s through the s, he was the most salient and persuasive of the academic scholars to advocate for the adoption of strict liability in tort.
The two men had a close and mutually supportive professional relationship. Prosser sat on the Council, too. Yuba case. Tort reform was not just the concern of a few influential academics, it was a matter of growing societal interest. In regard to strict liability, the attitudes that mattered were those of academics and judges.
Always he asks: what is the fair, practical policy for today? For example, he uncharacteristically argued that the reform of the rule of contributory negligence, which was very unpopular with plaintiffs, was a matter best left to the legislature.
This was especially odd since Traynor claimed that the court Roger J. Precursors of the Tort Revolution The Tort Revolution occurred between and approximately , when many states adopted either an implied warranty theory or a strict liability tort theory holding manufacturers automatically liable to remote consumers for defectively made or designed products.
The Revolution had precursors in the s and s. Not only had legal academics argued in favor of expanded manufacturer liability since the beginning of the twentieth century, but some courts had decided cases in favor of it, too. As we have seen, strict liability was commonplace regarding foodstuffs and products for intimate bodily use.
Yet, even in the s some courts urged an extension of negligence liability or Roger J. What made the early s revolutionary was the fact that strict liability was adopted by a majority of states in a short time and that the liability was no-fault liability rather than extensions of fault-based liability.
In a Texas Supreme Court case in a woman and her son were made ill after consuming spoiled canned spinach. The majority held the retailer liable under an implied warranty theory, even though the retailer had no way of ascertaining the canned food at issue was defective. This was a minority position among the states. It was liability without fault and an innocent retailer was simply responsible for deriving profit from distributing what turned out to be a defective product. Thus, the majority reasoned, the retailer should bear part of the risk of loss.
Not only is this an example of the judge-made character of the Tort Revolution, it shows how early the Griggs Canning Co. Josey, Tx. Critz, dissenting. Most courts limited strict liability to foodstuffs or products for intimate bodily use. Yet, apparently he was not alone, since other courts were happy to use an implied warranty theory to extend strict liability to general consumer products. Throughout the immediate post-War period, progressive legal scholars advocated abandoning negligence-based liability in favor of expanded or comprehensive no-fault theories.
As Prosser correctly believed, the use of implied warranties achieved a strict liability effect by using contract liability rules, wherein fault was irrelevant to the question of whether a breach had occurred. A couple of cases dealt with foodstuffs, such as animal foods, whereby the rule for human foods was simply extended by analogy to animal foods.
Both cases were implied warranty cases and did not make sweeping statements regarding general products or strict liability. However, additional cases, not included on the ALI list, have been considered here. Cargill, Inc. Milling Co. Gardner Machine Co. Traynor concurring separately. Hachikian, Pa. This case was notable because it pre-dated MacPherson NY, and was subsequently disapproved when the Illinois Supreme Court expressly adopted strict liability in tort for general products in Suvada v.
White Motor Co. Three River Bldrs. Republic Aviation Corp. Murphy Door Bed Co. Leary, 15 A. Los Angeles Ladder Co. Dodson, 47 Tenn. Goodrich Co. Hammond, F. Bridgeport Brass Co. Stauffer Chemical Co. It should be noted that William Prosser considered warranty theories essentially to be strict liability in tort because he thought the historical origin of warranty in tort law had carried through into twentieth-century American law.
That is, he thought courts were wrong to construe warranty claims as contract-based rather than the more historically accurate tort- based. These cases served as groundwork for the Tort Revolution. Viewed from the standpoint of , they do not add up to a tort revolution because they were sporadic and no clear majority view had developed about manufacturer liability. Another avenue of legal reform was through the legislative process. This route was taken in only a few instances.
Spindler, Minn. Playground Equipment Corp. Cox, 35 Misc. Rheem Mfg. The article sold is merchantable and reasonably suited to the use intended. The manufacturer knows of no latent defects undisclosed.
As such, only the legislature could expand the statutory right to sue under strict liability for defective products to other causes of action, such as wrongful death. Valley Hope of Norton Founded in With a year legacy of helping thousands of patients and families, Valley Hope is nationally-known as a trusted provider of addiction treatment and recovery support. Founded in Norton in , Valley Hope provides patient-centered, compassionate treatment to people and families impacted by drug and alcohol addiction.
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