Torts: A Big Stick for Consumers

“Out of fact comes law,” said the Romans. And out of 50,000 U.S. auto deaths a year are coming new legal pressures on U.S. auto manufacturers.

Most important is “strict liability” — a doctrine holding a manufacturer liable for consumer injuries even though he has not been proved guilty of manufacturing negligence.

A major impetus for this Draconian doctrine traces back to 1911 when an upstate New York gravestone dealer named Donald MacPherson was driving his new Buick at 15 m.p.h. A wheel flew off, the car flipped, and MacPherson wound up in the hospital. He sued the Buick Co. for negligence in failing to inspect the defective wheel. Buick raised what was then a plausible defense: it had never sold MacPherson anything directly, since he bought from a dealer. Therefore, said Buick, it could not be held liable to MacPherson for negligence.

In a famous opinion by Judge (later Supreme Court Justice) Benjamin Cardozo, however, the New York Court of Appeals upheld MacPherson and extended manufacturers’ liability to third parties for any product “reasonably certain to place life and limb in danger when negligently made.” The decision left intact one vital requirement: the plaintiff must prove that the manufacturer was negligent.

Social Justice. Because such proof is highly elusive — only the manufacturer knows all the technical facts — more and more U.S. courts are now freeing plaintiffs from proving fault. To its supporters, this doctrine of strict liability is simple social justice resembling the principle of workmen’s compensation.

Where defect is clear but fault cannot be proved, they say, loss should be borne by the party most able to afford it and to insure against it.

Strict liability has long applied to ultrahazardous activities. A contractor using explosives, for example, is strictly liable for injuries to bystanders. But except in the case of food and drink, the doctrine has never applied until recently to normal sales transactions. Now it is being rapidly extended to cover the sale of almost any product that has some potential danger—from roller skates to airplanes. A key precedent in this process occurred in 1960 after a New Jersey driver slammed his new car into a brick wall, apparently because the steering wheel was defective. Even though the trial judge was unable to find evidence of negligence by either manufacturer or driver, he held the manufacturer liable for breach of an “implied warranty” that the steering wheel was safe. The New Jersey Supreme Court upheld the verdict: “We see no rational doctrinal basis for differentiating between a fly in a bottle of beverage and a defective automobile.”

Corvair Controversy. The California Supreme Court defined the new doctrine even more sweepingly in the 1963 case of a man who had yearned to own a much advertised power lathe. His wife bought him one; it promptly shot a hunk of wood into his head. In upholding a verdict based on faulty design, the court ruled that injured consumers need not claim a theoretical “implied warranty” but may rely simply on “strict liability in tort.” Said the court: “A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.”

With this principle well established, California has now become the legal arena where General Motors is fighting the first of scores of suits involving the 1,124,076 Corvairs it produced between 1960 and 1963. Nearly all the suits claim that in those years the Corvair’s rear axle (since redesigned) tended to cause violent oversteering that sometimes forced the car to “fishtail” and roll over.

For eight weeks, California’s key Corvair case has been on trial in San Jose. The plaintiff is Doreen Collins, a pleasant-faced divorcee who seeks $400,000 in compensatory damages for a grisly accident in 1962 when she was driving her five children and her new fiance on a camping trip in a 1960 Corvair. Suddenly swinging out of control, the car hit a truck headon, killing one child and the fiance. U.S. Racing Driver Paul O’Shea has taken the stand to back the Collins claim that the Corvair was unsafe. British Racing Driver Stirling Moss has testified that it was safe. The war of experts may well leave judge and jury unsure of just where the negligence lies.

Loving Lecturers. Not surprisingly, strict liability was on every tongue last week at the Miami convention of the American Trial Lawyers Association—a group so dedicated to winning personal injury suits (fee: up to 50% of the judgment) that the delegates spent eight hours a day buying such trial props as plastic skeletons and listening to such maestros as Melvin Belli, who lovingly lectured on his tactics in winning a $215,000 judgment for a Navy pilot’s widow against the manufacturer of a helicopter that crashed during military operations.

Said Belli: “Servicemen take it for granted, and they’re also told by the Government, that if something is defective it’s their hard luck. They don’t know that even if they’re on patrol in Viet Nam, and their rifle goes boom and injures them because it’s defective, they can sue the guy that manufactured it.” To hear Belli tell it, he could collect damages for the families of the men lost when the nuclear submarine Thresher went down in 1963.

At least partly belying Belli, many judges are still loath to stack all the odds against manufacturers, and the doctrine of strict liability is unlikely to be applied universally to all products. Even so, it is easily the most spectacular development in modern tort law—the most potent new weapon aimed at making business safeguard consumers.