Bailey v. Montgomery Ward and Company, 431 P.2d 108

Bailey v. Montgomery Ward and Company

431 P.2d 108

Ariz. Ct. App.

1967

Check Treatment

*1 purchasing more The defendant admitted $2,000 clothing personal

than worth during the first ten

Items for herself marriage. also testified

months of the She community neighborhood of debts

$2,700 purchase cloth- incurred day their

ing for herself. On the after $2,600 of

separation she withdrew

community from the bank account funds payment on The down

her name. lot awarded

house and separation of At the time $400. pay- monthly

parties, more than one owing the balance made on ment had been $13,000. approximately property

on the the evidence persuaded We are sufficiently record

borne out vested broad discretion support the

clear to distributing the judge in the trial 25-318, subsec. assets, community A.R.S. § Ariz. amended; Honig, 77 v. Honig A, as Reed, ; v. (1954) Reed

247, 269 P.2d 737 Hanner (1957); Ariz. P.2d 239 Hanner, Ariz. DeMarce, DeMarce v. le precludes P.2d 726 defendant. complaint from

gitimate is affirmed. KRUCKER, JJ., concur.

MOLLOY and litem, guardian BAILEY, by ad W.

David Margaret Bailey, Appellant, P. COMPANY, WARD AND

MONTGOMERY Appellee. corporation, 313. 2 CA-CIV

No. Appeals of Arizona. Aug. 1967.

Rehearing Denied Oct. 28, 1967. Denied Nov.

Review

“* * * riding pogo I was out [the rode on about it had been stick] seventh, six times and about cap something and the spring got loose or *3 right me along eye, and cut hit me bleeding real bad.” there. I was Fisher, Tucson, appellant. for Lillian ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍S. Baileys accident, the were Following the cap that by unable find the black rubber Gillenwater, Robert & W. Browder spring The was top fit on the stick. Browder, Phoenix, appellee. for their house found the other on side away. sixty about feet HATHAWAY, Judge. Chief part pogo was offered No stick Bailey, age a minor is David W. evidence, in from advertisement plaintiff personal injury action filed in this catalog was intro- Montgomery Ward superior by ad guardian in his litem. court pogo showing that duced in evidence implied and The action based on for use stick recommended was not plaintiff jury. on tort tried to The plain- pounds. Both children over appealed superior from the court’s Ricky younger tiff were and brother his for a di- granting the motion defendant’s weight. wеll under plaintiff appeals rected from verdict thereon. Although 44-215 A.R.S. § plaintiff’s mother had seen advertise- Act, relating Uniform Sales pogo ments of a stick in the defendant’s arising under quality warranties of catalog. by Rapaport It was manufactured contract, is pleaded, feel it law is we Incorporated. Brothers ordered the She applicable. pogo stick was Since toy catalog. purchased through the It was for purchased plaintiff’s mother by the gift plaintiff’s as a Christmas Ricky, between her son no exists younger brother. plaintiff and defendant. pogo stick was in obtained sealed inflicted in Liability product box from the defendant before and Christ- juries many jurisdictions has under in only opened father, mas was once gone involvement an exodus from its Bailey, Charles who at it re- G. looked and rest returned to contract and has law placed opened it in the box. It was not basis, Breach upon law. logical again until morning Christmas injuries warranty liability personal younger child, Ricky, gift for whom products from evolved caused defective opened intended then it. nature deceit. action the case on Bowen, Shippen U.S. Ricky took the stick and outside tried to Dean 1283, 30 L.Ed. 1172 S.Ct. couple it a brought use it of times and back Prosser has commented: pogo into house. The stick remained in plaintiff’s mother, the house until the Mar- perni- is “All this [talk contract] garet Bailey, P. later few minutes told unnecessary. one entirely No cious and pogo the children thаt the stick could not privity, is that, there unless doubts Shortly be used the house. thereafter the be must the consumer jumped took stick and outside There is tort and not contract. a little bit “for time.” He then concept from the con- need to borrow went profusely bleeding into the house from sales; ‘only by it is tract law of eye saying pogo stick had in- twisting’ that pounding some violent jured him. to serve ‘warranty’ can be made plaintiff, purpose Why talk of it? apparently at all. witness tort, liability in accident, testified: there is outright, illusory- personal declare it injury- without Prior involvement of contract mask. Such strict cases with the law of' animals, enough warranty, recognized familiar law Restatement- activities, abnormally 402A, nui- dangerous (Second), Torts Commеnt m: sance, compensation, workmen’s “ * * * nothing in this: respondeat superior.” Law Yale prevent any section which court would Journal treating a. the rules stated as agree injuries personal ‘warranty’ matter We caused the user or con- upon products done, defective sumer. But if this be- should should unnecessary recognized tort law. trace deem it the- We understood that development *4 ‘warranty’ very historical of tort is a different kind of' Prosser, product liability warranty usually in cases. See in. those found Implied Warranty goods Merchantable the sale of that it sub- and is not Quality, ject 27 Minn.Law Rev. to the various contract rules 402A, grown Com- (Second), up Torts have to surround such sales.”' § b; and, ment v. Yuba Power Greenman applies The Rеstatement rule to all' Co., 57, Products 59 Cal.2d persons selling- engaged in the business of 697, 377 P.2d 897 products consumption-—manu for use or (Second), The Restatement Torts facturers, wholesalers, The- or retailers. exposition subject on the of strict responsibility- special rule is founded products, in relation to the sales of defective public safety who- for assumed those we believe states the rule with con correct carry supplying products on the business of : cision may endanger person property,, or coupled public upon forced reliance any “1. product One in a who sells suppliers. Torts. (Second), unreasonably defective condition dan- 402A, Comment f. gerous § to the usW or or to consumer property his subjеct is Although majority not the law of physical thereby harm caused towards, jurisdictions today trend consumer, ultimate user or his or to cites, the Restatement view. Prosser Dean property, (a) if engaged seller ap following being jurisdictions as selling product, business such a parent rule: accord with the Restatement expected and (b) to and does California, Connecticut, District of Colum reach the or user consumer without sub- bia, (as and Florida to manufacturers stantial change in the condition in which partially Iowa, Michigan, retailers), as to it is sold. Minnesota, (as manufacturers), Missouri applies although ^[*] “2. rule stated in subsection one ‡ (a) ^[*] the seller has ^[*] ^[*] ex- New and their ultimate Jersey, guests), purchasers, New York, Pennsylvania and Tennessee. their households,. Ac (as- Kansas, possiblе cording ercised prepara- all to the federal care courts Oregon, and (b) Texas, tion sale of and are also product, and Vermont - Wyoming the user Virginia or accord. and bought consumer has not Statutes adopted rule. are considered as from or entered into con- to have 421,. Liability, tractual relation with the Re- Products 16 U. of Fla.L.Rev. seller.” statement (Second), (1964).1 Torts 402A. Henningsen unexplainedly Motors, Inc., went out the automobile v. Bloomfield brought 32 N.J. action 161 A.2d control. The A.L.R.2d (1960) and an the manufacturer the dealer and was a landmark decision involved warranty upon implied purchaser of mer action wife based an of a injured driving Judgment chantability. new car who was while suddenly Supreme highway smooth was affirmed Court

21T jurisdiction Supreme approves doctrine. first California specifically adopt liability in tort. The court said: Court, in Green- Supreme The California warranty allegation implied “The Co., supra, man v. Yuba Power Products appellant’s case. nothing to adds (cid:127) holding decision affirmed lower court’s article a manufacturer of shopsmith liable tool manufacturer of (see Phillips v. Anchor Hock is in tort personal injuries plaintiff. How 251, 413 P.2d ing Corp., 100 Ariz. Glass ever, lia affirmance was strict basis for concurring Justice implied bility in not breach of Byron Lockwood Nalbandian Jack merchantability warranty breach or 681), Pumps, 97 Ariz. son :a under the Uniform fitness by agreement assumed citing cases After numerous Sales Act. Crystal Coca-Cola imposеd by law. Traynor Chief said: Justice Cathey, Bottling Co. v. 317 P.2d 1094.” “Although in these cases strict theory usually 'has been on the Miller, Stapley S. Co. See also O. warranty running express (cid:127)an July (filed Ariz.App. P.2d 701 plaintiff, from the manufacturer lia- applying 1967) specifically the strict *5 requirement the abandonment of bility in tort doctrine. n them, recognition contract between way relieves rule in no This by agree- is not assumed proof. The plaintiff of his burden of * * * imposed ment make but law against plaintiff product liability action in a n clearthat the governed is not one prove retailer must manufacturer or by the law of contract but ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍warranties injury caused both that his has been tort. the law strict the de that product a defect in the “ * * * injured ‘The remedies of product left fеct existed ought onsumers not to be made de See retailer. hands the manufacturer or pend upon 402A, the intricacies the law of (Second), Com Torts § 701, Cal.Rptr. g. 27 at P.2d ment sales.’” 377

at 901. case instant concern Our accord, see, pre Goldberg sufficiency In evidence v. Kollsman with the favorably to If, sented. when viewed most Corp., 432, Instrument 12 N.Y.2d 240 N.Y. plaintiff, it warranted submission (1963). 191 592, S.2d N.E.2d 81 jury presented, of the theories on Supreme We find no Arizona Court superior directing the verdict court’s specifically case holding that strict plaintiff Arizona, liability applies language El reversed. Rhodes v. must thereon be in the recent case of Shannon v. Butler 183, Ariz.App. 418 P.2d Markets, 4 Rancho Homes, 312, Inc., 102 Ariz. 428 Tucson, P.2d 990 ; City 4 Campbell (1966) 613 v. ; 14, 155, (filed (1966) that 401 Revels Ariz.App. indicates 418 P.2d 1967) June justice requires 402A, Jersey warranty theory holding New as discussed that Reedman, Thompson charged m. v. that with an See both defendants be Comment implied warranty F.Supp. (E.D.Penn.1961); Pick in favor of the ultimate 120 199 regardless lacle purchaser, X-Ray Corporation Motors v. er General express warranty. existence (D. Corporation, Munici A.2d 919 C. 185 This 1962); pal Appeals v. Peterson Dean case is noted Page both Prosser and 339, specific Company, adopting Rubber Cal.2d Keeton Lamb 54 863, (Second), P.2d idea Torts 5 and, 353 575 Equip Playground using v. McBurnette § 402A and the term of Corp., (Fla.1962). expressed m. in Comment ment 137 So.2d 563 Many where other cases can found upon the has been 218 purposes ordinary 208, (1966). such Phole, v. 101 Ariz. 418 P.2d ** and used articles are sold Santor

Also: “ 52, Karagheusian, Inc., A and M * * v. * N.J. compеtent evidence whatever 305, (1965). also Patter 207 A.2d See introduced, appellants including all have Weyer, 501, George Inc., son H. 189 Kan. v. reasonably that be drawn inferences can ; Henningsen (1962) v. P.2d Bloom true, and, therefrom, if to be is assumed Motors, 358, 69, Inc., 32 field 161 A.2d N.J. rea- the evidence is of such character that ; and, Bat (1960) 75 A.L.R.2d Marathon may differ the infer- sonable minds tery Company Kilpatrick, Okl., 418 P.2d therefrom, ences to be drawn the case jury.” must be submitted 304, Heim, Sturm 95 Ariz. Byron Nalbandian v. Jackson Pumps, Inc., page Ariz. at Inn, also, Highway Heth v. Del Webb’s page Supreme at (No. 429 P.2d 442 filed Court of Arizona said: 22, 1967). June contract, product “In of a failure plain- defendant maintains that purpose reasonably fit for products liability tiff in all cases based on guaran- which was used to be within imрlied warranty prove breach of must prove time teed is all the need injured something he was because there was prima plain- establish facie case. The wrong product with the the time was prove negligence tiff need not sold injury. such defect caused product.” manufacture warranted It correctly contends that the trial court Although dealt Nalbandian directed the verdict in its favor because no implied warranty with an of fitness based evidence was offered *6 on A.R.S. 44-215 of the Uniform Sales design defective in manufacture or at the Act, recognize we the definitions of war any time it sold was or time. Defendant providing appropriate ranties in this asAct asserts question that submission of the de standards for court lоok to jury the would have invited con- termining product. defectiveness of a jecture. recognize We the correctness defend- jury may reasonably in The have ant’s plaintiff’s statement of the burden of injury ferred from the facts that the result proof whether the action is breach ed a The pogo from defect in the stick. However, or tort. plaintiff ac that testified he was well the defendant’s contentions overlook evi- stick; quainted pogo with of a that the use dentiary problems plain- involved in the was past; he used one that he had in the and prima tiff’s establishing his facie case. pogo able use stick on Christmas the first, morning. judicial

We will notice that consider We take whether plaintiff the prima pogo expеcted rugged established facie stick is case be used injury by expect caused a defect in manner. The must pogo the manufacturer stick, while being pogo to harsh subjected used the manner stick will be asphalt; it prov pavement, dirt, was intended. contact with and The facts are by or, able may dropped direct or it evidence, and that circumstantial on occasion or off, presented both. sufficient falling may evidence is rider or it tossed upon jury may reasonably vio thrown into a tree or a knocked infer wall or ' directly true facts lently resulting ground. in the conclude that in We jury to the he plaintiff, plaintiff since acquainted established was with prima facie case and pogo merely jumped defendant use of the and then stick had go must forward with jury may rebuttal on it “about evidence six times” the reason it A ably have. “defective” article has been have that the 'inferred direct result defined as one reasonably injuring “not fit the pogo flying apart stick’s and reasoning to reach that plaintiff was a defect in the de- ment as to used due to stick. result. sign or manufacture the evi- majority The overstates jury also reason The could have upsetting dence in favor the decision ably pogo that the from the facts concluded the total use The as to below. evidence condi substantially stick the same was Bailey toy by made the two children injury morning

tion on Christmas when the vaporous at It first best. used occurred, it hands of it was left the child, Ricky, yеars eight younger pogo The stick ar the defendant retailer. testimony age, delineating the plaintiff’s rived at house in a sealed extent this use as follows: package, having the de been ordered from “Q it? long play did with For how he mother, catalog. plaintiff’s fendant’s open Margaret Bailey, package not very did Not plaintiff’s “A [The mother] upon opened or it arrival before was long, long. I’m not sure how plaintiff’s Ricky. plain brother it? “Q play with you Did see him open tiff’s he father testified that did No, they “A I house were and package morning and “I before Christmas told they them that it in the couldn’t use just slipped think I and it out of the box house. dropped pulled it looked at it. I never out or instead, “Q they play Where did itwith anything pogo it like stick or that.” The then? wrapped so un gift and remained “A had tried He taken outside opened morning til Christmas when it was couple times, then, it a back came played he with children for few in. was earlier. This minutes before mother came down. She they play told the children could with “Q And, Pogo then, who took it in the house. The then took Stick? played period outside and itwith for a short played “A David it outside took jumped of time. He testified that he had (Emphasis added) with it.” spring got on it six times and about “the cap something David, loose hit me testimony then indicates eye.” along rugged use ex Due to the Pogo ten, played older child of pected stick, pogo of a we conclude accompaniment stick another *7 go jury. evidence to the was sufficient to age. child The mother of about the same “ * ** very long” that it testified wasn’t in favor of the defendant injury toy after that David took the the is reversed and the is cause remanded a the testimony that There no occurred. foregoing. new trial in accordance with the anyone than toy else other was not used tes- Bailey no two children. There is FARLEY, Superior GORDON Court toy timony portion failed any Judge, concurs. apart. And tlwt it came broke—only or Judge NOTE: HERBERT F. KRUCKER it testimony there as to what caused is no having requested that he be relieved from apart. to come matter, Judge consideration of GOR- this ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍assemblages mechanical There are few DON FARLEY was called sit to genius the disassemble which will frustrate participate stеad and in the determination judicial take boy. we of a small Unless this decision. pound ninety toy for notice a safe' a at re- boy and sold manufactured cannot be MOLLOY, Judge (dissenting). by the paid (the amount tail for $2.99 stick), Baileys Pogo have little: mildly this we writer finds himself dis- the: Though consider go I agreement majority opinion, to on here. with the as paucity one, I believe the disagree- question close reached, firmly to result a 220 developed bility facts in the trial court must be showing there a that there

place injury. this case in the category of decisions was a “defect” resulted in Mining as such v. Minnesota Jakubowski It my view that decision of whether 177, Manufacturing, 42 A.2d 199 liability”' N.J. adopt to the doctrine “strict Motors 826 and Shramek v. General as the a law of this stаte should await Corp., 72, Ill.App.2d 244 69 216 N.E.2d properly case which briefed and be, Whatever test of there necessity is some to “cross Rubi- negligence, warranty whether breach Here, necessity. con.” there is such liability, there must be evidence which Pogo If this unsuitable for stick was reasonably probable creates a inference that ninety pounds child of less than a defect of in the some kind sold, ques- there is evidence to let product time left the seller’s hands. liability go jury tion con- under plaintiff. advanced These tentions ques However, admittedly, it is a close express implied include theories of sufficiency in this as tion case warranty. proof. Under dissimilar situa too plain- tions, evidence establishes permitted question courts have stick Pogo tiff’s mother ordered this whether an accident had been caused which, defendant, through catalog jury. go defect toy being: “SPE- catalog this advertised Wee, 191, P.2d Davidson v. Ariz. CHIL- CIAL STEEL POGO STICK FOR (1963); Fire Insurance Canadian Co. NINETY UP TO DREN WEIGHING Wild, v. 304 P.2d this statement of suit- LBS.” Fraley Ford, 81 Ariz. to' ability plaintiff’s mother induced (1957); and, Zesch Abrasive Co. of an purchase, make then I would find this Philadelphia, Mo. 183 S.W.2d express 44-212: warranty under A.R.S. § trial A.L.R. 469 But if the reversed, court must be I not believe prom- do any “Any affirmation of fact or the doctrine of strict is- relating goods ise the seller appropriate an one to reach result in tend- express if the natural warranty so, If we going case. do we are out is- ency promise such affirmation or any side presented by contentions plain buyеr purchase goods, induce justify tiff the trial recovery, court to goods the buyer purchases the and if and this we have said we would not do. affirmation relying thereon. No Superior Schwamm v. in and for nor statement goods, value of County Pima, Ariz.App. purporting of the sell- to be a statement (1966) ; Appeal see 5 opinion only er’s shall be construed Am.Jur.2d 29-32; pp. and Error warranty.” §§ C.J.S. Appeal 1503,p. & Error express finding Decisions *8 v. Pritchard on this are: no more than There are total a of ten counts 350 Myers Company, Liggett Tobacco & plaintiff’s below, complaint but none filed U.S. 1965), F.2d cert. den. 382 (3d 479 Cir. suggests of these that the defendant should 549, 987, (1966); 15 475 86 S.Ct. L.Ed.2d be held liable on a strict theory of Lindsay, (10th 350 46 Cir. Norton v. F.2d liability. appellant’s opening brief Co., ; 42 1965) Burr v. Williams Sherwin suggestion this court no that makes con- a ; 682, (1954) Lane v. Cal.2d 268 P.2d 1041 cept of strict be used to should 210, Sons, Cal.App.2d A. & 130 C. Swanson upset is only below. It Mo (1955); v. Ford 278 723 Gherna P.2d we come to the brief that we defendant’s 721, Company, 55 tor 246 A.C.A. mentioned, have theory such Prod ; Young 94 v. Aeroil (1966) see purpose for pointing out Company, (9th ucts Cir. 248 F.2d 185 that even 1957). under the doctrine of strict lia-

221 apart my judgment fall not in induce Pogo And if this stick doctrine should did purchase by sweepingly set the doc- after its normal the court to aside soon reason of ninety pounds, there trine use a child under fault. warranty implied be a of an

would breach suggesting why Before a reasons few Superior merchantability. In Colvin v. in. change good not be either law or 118, 113, Equipment Company, 96 Ariz. public interest, consider should we first Supreme (1964), 392 our P.2d 778 already di- gone in this how far we have held: in this It been said rection state. contract, every “There how- is in sales step: already taken this we have ever, provided for Superior “In recent case Colvin * * 44-215(1) 96 A.R.S. *.” § 113, Equipment 392 Company, Ariz. 96 118, Ariz. at 392 at adopted the (1964), P.2d 778 this Court implied warranty in Colvin referred to legal concept modern manufacturer’s aof goods reasonably one fit for regard strict in tort with purposes intended. In the instant ac- Concurring products.” manufactured implied warranty probably tion the would Lockwood of Chief Justice accurately designated more one of Pumps, Byron Nalbandian v. Jackson 2 quality” “merchantable under subsection 681, Inc., 287, 280, buyer’s 44-215, of A.R.S. inasmuch as § particular equivalent nothing use was Respectfully, suggests writer general purpose more than for simply place, the first cannot be so. In question the article in manufactured. was Colvin Nalbandian 196, were with Wee, 191, concérned Davidson v. 93 Ariz. whether a contract enforced sales was to be P.2d 744 excellent dis- consequential per- damages and not cussion im- between an difference dangerous son plied property resulting from a warranty of fitness mer- and one of Colvin, suing In defect. chantability. after deficiency judgment recover a defense of lack of contract repossession power sale shovel under is not raised the defendant This here. A.R.S. conditional sales contract under concept, “utterly given which has rise to by buyer 44-322. Nalbandian was a suit preposterous (quote Pros decisions” pump, repairing recover cost of Citadel, Upon ser—-The Assault having pump occurred breakdown 1099, raised, 1118), Yale should if L.J. warranty. period during express of an rejected Henningsen as in v. Bloomfield Motors, Inc., 161 A.2d N.J. imposed Strict in tort is rea- 75 A.L.R.2d (1960); Greenberg per- public policy sons have Lorenz, 9 N.Y.2d 213 N.Y.S.2d problems Seely v. tinency to such these. ; (1961) N.E.2d 773 in McBurnette v. Cal, Company, White Motor 63 Cal.2d Playground Equipment Corporation, v, So. Rptr. 17, Price (1965); 403 P.2d 145 ; 2d (Fla.1962) and Lindroth ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍v. Wal Co., Imp. Columbian & Gatlin & Tractor green Co., Ill.App. 105, 67 N.E.2d contra, 241 Or. 405 P.2d 502 ; (1946) Friedman, and see Frumer & Prod Inc., 44 Karagheusian, A and M Santor v. Liability ucts § 19.01[3]. (1965). And certain- 207 A.2d 305 N.J. ly we must Colvin and majority consider the doctrine of court liability, as I think we the Nalbandian should did not conceive *9 stated, the problem reasons at a few comments as to be under hand solved to “leap the desirability liability this tort. Both of forward” doctrine strict appropriate. replete are with Dissatisfaction the Colvin and Nalbandian are with privity “outrageous” quotations doctrine and the de- to references and our Sales following Act, seq., cisions reached in cases blindly this et and A.R.S. 44—201 § will include last critical look which some pertaining express war- and to appealing beguiling facets of this the less the discussion in both Most of ranties. new doctrine. been Colvin Nalbandian would have and liability point if strict completely the beside Unquestionably, principal one of the at the in tort the rationale deci- had been apparent the “new look” tractions of is its sion. simplicity. “Confusing” as concepts such antipathy rеasoning between swept “justice.” aside to do liability Colvin strict and the doctrine liability ring “Strict tort” has up remembering pointed in tort can be firm, something implications sure and that Colvin its reasons for gave as one of unnecessary quib that a great morass of denying re- affirming (in court trial bling liability over will be cut details covery possibility that buyer), to rule, through. Analysis new how the trial have found that court ever, may pre to that it lead one conclude "buyer give did not notice of defect litigate sents about as over as the much the seller within a reasonable time after proof upon old rule.. The burden of discovery (96 Ariz. at thereof. plaintiff in a strict tort action P.2d tort were 778.) If strict against manufacturer, instance, is test, pertinency: this defense has no very being close as that in same either negligence required “Nor or a case.1 give is the consumer notice injury of his within the seller According Restatement (Second), occurs, reasonable time after prove Torts 402(A), must § “ * provided * * Act.” the Uniform that a in a defective ” ** * unreasonably dangerous condition 402(A), Restatement (Second), Torts § (emphasis p. added) at time it left the sell 356. er’s Though hands. is not an identical But, Supreme though our Court has not negligence twin to the what is test of as far yet doctrine, wedded this new it has cer concerned, as a cer manufacturer tainly paid at courtship. least ci ardent tainly a first cousin.2 approval tation with in Colvin of Greenman Products, Inc., Pragmatically, Yuba Power it will be the whоlesaler 59 Cal.2d will (1962), might retailer who feel the bite of even be new non-negligent considered doctrine. As to the dis- a betrothment. That the engagement tributor, wholesaler, yet retailer, has not as been the new broken is heavy-handed point demonstrated doctrine in- the remarks in Shannon v. justice. Homes, Butler Inc., 102 are all a ten- We aware there is dency enterprises the citation therein business to become concurring opinion larger larger for the small in Nalbandian. But entre- be preneur fore squeezed romance has reached the he into be- let-no- oblivion man-put-asunder big stage, tween the la- big writer forces of business and would hope Supreme philosophy bor. The will take new with- one p. (Second), 1. Prosser evaluates tlie situation Torts § as to negligence as manufacturers as follows: defines follows: “ * * * against “Where action is conduct which falls below product, manufacturer the standard law for the an honest established very might protection well estimate be that of others unreason- is not one case in a hundred able in which rislc harm.” recovery (Emphasis added) result would negligence (Second), where does not.” And § see Upon Torts, p. 325, specific 69 Yale L.J. The Assault standard (Strict Liability applicable Citadel to the Con- to manufacturers. sumer), 1099, (1959-60). at 1114 comparable Also see Hursh, statement Liability, 1, Sup Products Vol. plement 5A:2, 144-45. *10 an item of increased cost mean between or distribute out fault will the difference many result from thе a small such as which would survival and extinction to many liability. imposition But of strict businessman. totally are in a different manufacturers tranquilizing takes the The new doctrine position industry situation. Their reaches strict in tort view competitive situa- is vulnerable and their passes just back to result because it comparatively It tion delicate. is these “really belongs” manufacturer—where suffer small manufacturers who product. This —the for defective regard additional costs added without are back,” only course, be of will “passing to their situation.” possible proof is available to the extent that Upon Yale Assault the Cita- ex L.J. to back and trace defect Liability (Strict Consumer) del to supplier financial original tent that the 1121-22, 1099, at (1959-60). n. 147 back, ly rеsponsible. passed inexorable permit the loss of do not liability concept, laws economics Under neither It will contributory the manufacturer. negligence rest with (Comment n of will a rare manufacturer size who 402(A)) of (Second), Torts § year be profit less at the end of nor limiting liability (Comment make contract Big manu cause of the new doctrine. m (Second), Torts the con pass (A)) recovery. facturers will the loss on are to detract from full insurance, an doctrine, then, Products negligent sumer. Under this ap tranquilizing thought consumer, has other de- consumer who has pealed proponents liberately of this recovery to some right limited doctrine,3 consequence contract, is of no real solemn are to recover their losses shifting determining consumers, the final debtor in this from all non-negligent other losses, contractually they cost of the insur unencumbered as pay profit in ance must in turn process passing In the these be. company, paid along, surance all must be of which losses there will be substantial wast- analysis by age in the final consumer. litigation in the costs of reason entrepreneurs small will fall who economic And some will not have the wayside, equaliz- frustrating thus good wherewithal or luck to be able process ing from full achievement. pass along. Prosser himself loss upon aspect of argument comments this unfortunate favoring abrogation of the concept pertaining law, new words traditional to the effect that the manu manufaсturer, equal small but which have facturer is jurisdiction too often out of the pertinency small middleman and re- injured court available to the tailer : consumer4 longer efficacy light “long arm statutes” our such as failing overlook “It a common Procedure, 4(e), own Rule Rules of Civil problem the small manufacturer. Phillips Hocking 16 A.R.S. See v. Anchor speak 'manu- reformers When social Corporation, Glass 100 Ariz. all they generally facturers’ assume permits passing This Rule position of manufacturers impalement back of the loss without the Mo- Corporation General U. S. Steel the innocent middleman on the sword of Company New tors or Standard Oil liability. (leaving may very Jersey. It well liability in tort large By accepting the strict justice) that

out considerations leapfrogging over doctrine, state will be absorb organizations this character can Upon Prosser, I.e., Traynor expressed I.e., The Assault 4. in Ms Justice Liability (Strict to the Consum- concurring in Escola Citadel memorable (1959- Fresno, er), Bottling at 1116 Yale L.J. v. Coca Cola Co. 60). 453, 462, Cal.2d *11 heat, contributory negli sufficiently question will be efficient of whether to meet warranty gence a defense in an the demands of this brave new world. only contributory negligence case.5 The fault, A doctrine of without permitted by 402(A), defense § while it eliminate some of incon- (Second), Torts, usually is that denominat presented by “privity,” sistencies rules of assumption Negligence ed of risk. inconsistencies, will create its own which failure to discover a defect is no defense. away require sweeping will in turn n, See Comment 402(A) Restatement § pre- concepts. example other such is An (Second), Torts, p. 356. On those occasions in Goldberg sented v. Kollsman Instrument upon the legislature passed when our has Corp., 12 N.Y.2d 240 N.Y.S.2d problem dis related failure to whether action, N.E.2d 81 In that cover a defective condition be a de should Appeals Court of held that of New York case, spoken fense Lockheed, airplane, the assembler of an recovery, favor denying under certain to be held liable to the estate of circumstances, buyer negligently who passenger airplane killed in a crash inspect fails to and discover a defect. principle liability arising under a of strict 44-2333, 44—215, imрlied warranty, re- A.R.S. but denied subsec. 3 and §§ covery Kollsman, the manufacturer C, par. 2, newly adopted subsec. of the of the altimeter malfunctioned to Uniform Commercial Code. gives cause the accident. rea- The court grand simplicity of the new doctrine son for making such other than a distinction sweeping —its concept aside lia- “adequate protection” provided bility through dangerous fault-—is its most passengers by stopping liability aspect. ring The all-inclusive of “strict airplane manufacturer (240 N.Y.S.2d liability” (as will cause 83). overextension Presumably, 191 N.E.2d at if the air- here) plane bankrupt, the of what is manufacturer had been progenitors conceived its component part manufacturer would concept. to bе a limited its Unlike have been held liable. predecessor-doctrine liability through “fault,” very which in the statement of the pointed dissenting As out principle suggests shifting logic holding Goldberg, loss there seems no Airlines, direct- American which contracted exception rule, to be the rather than the ly passenger, with the to a lower standard verbiage innuendos of the new liability (in negligence) than the field of pervasive. supplier-consumer rela- warranty), (in the aircraft assembler of tionship ubiquitous is the most in our dealings passenger with whom the had no society, excepting not even re- sexual doctrine comes to whatsoever. the new lationship. A concept contemplates stay, within sooner or later will embrace equalizing arising most accidental loss euphoria of all common consumption from the goods demands a short carriers. And there are two conveyer vast judicial machinery belt of steps impose on from there to might pause redistribute losses. One vehicles, operators all owners and of motor conveyer reflect rolling whether a belt passengers to all first as to provided by adversary system, wheels others. And those whose sense of social expends energy equaliza- much justice prompts so friction them to seek an raging legal below); contrary 5. There is a conflict on this see Dal but for a view authority Co., Sears, issue. negating There substantial 313 F.2d lison Roebuck 1962); (10th the defense: Hansen Fire Coca Gardner v. Cir. Minnesota, Company, Bottling Company stone fTire and Rubber Cola (6th 1960); F.2d 254 Cir. Brown v. Minn. N.W.2d Chapman, 1962); (9th 383, p. Also see F.2d 149 § Cir. C.J. S. Sales 357, p. topical analysis. (but 77 C.J.S. Sales see 4 A.L.R.3d for a *12 hardly ery. tion of all accidental losses will are physics not in We the science of storming cease with but in field battlements which is a science neither these outer taken. walls nor art. Clarence is attributed Darrow saying, with “Laws like clothes. should be Surely many there are solutions more They they people should be made to fit the fitting proselyted.6 than the one judiciary are to meant serve.” For result in fact reached some under situations adopt sweeping principle of negligence common law of and warran sellers, little, big all whether of all or ty, developed spe as it has been chattels, used, whether new whether un or many generations, cialized over is unsatis art, fabricated works and whether factory, the suggests writer time- that these is,” sold with warranties or sold “as proven concepts tailored in or be as needed is to hack out a with a suit of clothes woods der injustices perceived eliminate ax, though acknowledged, man’s it must be relegate rather than concepts the old analogy appropriate, to make the more the junkheap. salutary step regard A in this finely the ax is honed and several has might be discard doctrine of cutting buttonhole notches tooled into its negligence. injection law of edge. concept this contractual into the law preferable to leave this not be Would it of torts Wright, Winterbottom v. M.W. particular legislative branch tailoring to the 109, 152Eng.Rep. (Exch. 1842), few has government? whose our Those us today. defenders Palsgraf test7 experience largely been training and foreseeability may reasonable enough view of confined to the law have a limited a limit of in other in all as inclined discipline Each broad scene. negligence. cases of prejudices arising from the fact to have approach new Einsteinian peephole. it life from its own views simplicity, far-reaching this, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍something like Einstein’s On as theories viewpoint government of a branch of relativity, our may command un more awe than containing more of a section of our crоss derstanding. approach attempts The new approximation people give a closer should explain all recoveries ever had society just suit our fair and what will seller goods. most, explain It does years ahead. explain fails to decisions which ac cepted as “fair” which have denied recov This should be affirmed. “proselyted” justified. 6. bility p. Problems, The word 57 Nw.U.L.Rev. Though (1962), the Restatement is said be a : the author states compendium quarrel right of the common law as it can cur- “No one with rently Honnold, country, exists in this and foster these scholars by to entertain Law, pp. every 144, 168, appropriate The Life of the 176- means whatever (1964), (Second), Torts, they may to what views have as 1, Introduction, p. VII, (1965), quarrel, Vol. IX how- law be. One can should surely ever, cannot said of rule which does May under In discussion. violent ex- One can restate. take promulgated, promulgation ception the new rule was California only jurisdiction, was the Law a revolu- Greenman American Institute Products, Inc., concept tionary v. Yuba Power under 59 Cal. law proclaims 2d ‘an to be banner general speaking orderly of “strict law statement of the Hursh, Liability, tort.” See Products United States’.” Liability Supplement seq. Vol. et Even Prob- § 5A:1 Product Nw.U.L.Rev. lems, jurisdiction now, probably 57, p. 542. Vol. adopted 402(A), which has Restate- Long Co., Palsgraf R. 7. Island (Second), Torts, ment in all of its ramifi- A.L.R. 1253 N.Y. 162 N.E. cations. U.Ela.L.Rev. Products Liability: Doctrinal Problems Thoughts, Answer, pp. Dictionary Restatement’s New The New (1964) ; Condon, Co., p. Book see Product Lia- Standard