The Citadel as Sandcastle

Christopher J. Robinette

The story of the rise and fall of privity of contract in products liability is familiar to all torts scholars. William Prosser even labeled privity a “citadel” and wrote two significant law review articles discussing in martial terms the assault upon and fall of the citadel of privity.¹ The story is simple. In an 1842 English case, Winterbottom v. Wright, Lord Abinger held that an injured passenger could not sue the manufacturer of the allegedly defective stagecoach that injured him because the coach was provided under contract to the passenger’s employer, not to him.² Abinger invoked floodgates by reasoning, “There is no privity of contract between these parties…Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue…” Id. The rule migrated to the United States, where courts held that, even though Winterbottom sued in contract, privity prevented plaintiffs from recovering for products injuries in negligence cases. In 1916, however, Judge Cardozo in MacPherson v. Buick Motor Co. ended the reign of privity by holding that a plaintiff injured by an allegedly defective automobile that he purchased from a retailer could sue the manufacturer directly.³

But the story is false. Such is the argument of Professor Alexandra Lahav in her compelling new article. Instead, Lahav insists that the doctrinal rule for producers of injurious products in the United States in the nineteenth century was negligence liability.

We are so familiar with the story that we can name that tune in just a few notes. So, to be told it is not true is surprising. How does Lahav reach that conclusion? She investigates reported state cases between 1850 and 1916. (P. 5.) She finds that 110 state court cases include a reference to Winterbottom v. Wright prior to 1916. (P. 17.) Of the 110, only twenty-five involve products, and Lahav notes that many of those twenty-five cases involve faulty construction and livestock, rather than typical mass market products. (P. 17.) Of the twenty-five, only twelve do not involve injury in the course of employment. (P. 17.) Of the twelve, four uphold privity, but they are all construction cases. (P. 17.) A fifth case, about the sale of a sick sheep, was decided on proximate cause grounds, but the court did endorse privity in dictum, stating that a third-party purchaser could not sue the original seller. (P. 17.) By contrast, seven of the twelve cases reject privity, including cases involving erroneously labeled medicine, defective furniture, a carriage, a boiler, and soap. (P. 17.)

Of the thirteen cases involving injury from products in the course of employment, seven were allowed to proceed even though they would have been barred by privity, while six were rejected on privity grounds. (Pp. 17-18.) The cases invoking Winterbottom in non-products cases—approximately eighty-five cases—involved services, such as title searches, will drafting, and telegram delivery. (P. 18.) These cases usually held that a third party had no cause of action against the service provider. (P. 18.)

Lahav summarizes the conclusions from her study. For a case that supposedly dominated products liability for over half a century, twenty-five relevant citations is minimal. Moreover, “of the mass product cases explicitly considering the Winterbottom precedent prior to MacPherson all rejected privity.” (P. 17.) She continues, “[t]he reasonable conclusion from this analysis is that privity was the rule for services, but not for products. Even in the employment context, privity as a bar to suit was at best a controversial doctrine.” (P. 18.)

Based on her study, Lahav retells the story. (P. 12.) As background, Lahav notes that the period from 1850 until 1910 was beset with social and economic upheaval. Cities became crowded as both immigrants and native-born citizens sought better wages. (P. 13.) Unlike their rural counterparts, urban dwellers were unable to produce their own products. (Pp. 13-14.) At the same time, technological developments made the mass production of goods a possibility. (P. 14.) In this environment, there was a need to protect consumers.

Perhaps no case discussed by Lahav illustrates the social changes and need for protection better than the claim by a boarder against a manufacturer for injuries sustained in the collapse of a murphy bed.⁴ Lahav notes that the suit would have been unlikely in 1850, not because of privity, but because there were few people living and working in cities who needed to rent a room. (P. 51.) The murphy bed, designed to fit people into smaller places, was itself the result of people’s increased need for housing. (P. 51.) Consumers living in cities using mass-produced items were vulnerable. Contrary to the traditional story, Lahav believes that judges protected them:

The doctrinal growth of products liability law was related to significant changes, wrought by the industrial revolution, in what products were available that could injure people, who was buying them, and social changes in terms of what people were buying. Courts had always recognized that manufacturers had a duty in tort. (P. 51.)

The retelling includes Winterbottom v. Wright, but in a reduced role. For Lahav, “the case that ought to be at the center of any discussion of products liability in the nineteenth century United States” is Thomas v. Winchester.⁵ That case, cited 194 times during 1850-1916, involved a poison mislabeled as a medicine that seriously injured a woman. (Pp. 19-21.) Despite the fact that the “medicine” was not sold directly to the consumer, the court allowed the suit. The gist of the ruling “was that a manufacturer had an obligation to warn when the medicine was dangerous, and to be careful packing it…” (Pp. 23-24.) But Lahav notes that other cases made it clear that medicine did not have to be poisonous or almost result in death to lead to liability. (P. 24.)

Lahav canvasses numerous products that led to liability absent privity during the last half of the nineteenth and beginning of the twentieth centuries. The list includes clothing (Pp. 25-29), soap (Pp. 29-32), food (Pp. 32-36), and automobiles. (Pp. 36-40.) The last category, of course, brings us back to MacPherson. In the traditional story, Judge Cardozo is given credit for shrewdly, and perhaps disingenuously, moving the law from the era of privity into the era of negligence. In Lahav’s retelling, “Cardozo was more correct than he is usually given credit for being, even if somewhat less magical.”⁶ (P. 40.)

By itself, this historical analysis is interesting and useful. It will, for example, alter the way I teach these cases in my Products Liability class next fall. But Lahav also connects her argument to a larger issue. She notes that recently judges have been using common law rules in analyzing statutes, and that they treat those rules as set in stone by early case law. (P. 49.) Lahav rightly suggests that getting history wrong can negatively impact future cases.

If anything, Lahav understates the importance of her research. With the Supreme Court’s turn toward what Professor Jack Balkin calls “thick originalism,” in which history is dispositive in interpreting the meaning and expected application of constitutional provisions, historical errors can carry grave consequences.⁷

Tort law provides a prime example. In Ives v. South Buffalo Ry. Co., the New York Court of Appeals declared the state’s initial attempt to enact a workers’ compensation statute unconstitutional on due process grounds.⁸ It did so because one of the “fundamental principles of law in existence” at the time of the adoption of the federal and New York Constitutions was “that no man who was without fault or negligence could be held liable in damages for injuries sustained by another.”⁹ The court’s proposition was historically inaccurate; strict liability governed multiple tort issues at the time the relevant constitutional provisions were adopted.¹⁰ Thus, the Supreme Court’s current jurisprudence allows historical errors to become constitutional rules. Lahav’s work warns us that such errors are more prevalent than we knew.

Professor Lahav’s article is remarkable scholarship. It is essential reading for scholars and teachers of Products Liability, those interested in tort history, and those concerned about the future of constitutional law.

Editor’s note: Reviewers choose what to review without input from Section Editors. Jotwell Torts Section Co-Editor Alexandra Lahav had no role in the editing of this article.

1. William L. Prosser, The Assault upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099 (1960); William L. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791 (1966).
2. 10 M. & W. 109, 152 Eng. Rep. 402 (Ex. 1842).
3. 217 N.Y. 382, 111 N.E. 1050 (1916).
4. Lewis v. Terry, 111 Cal. 39 (1896).
5. 6 N.Y. 397 (1852).
6. Cf. John C.P. Goldberg & Benjamin C. Zipursky, The Myths of MacPherson, 9 J. Tort L. 91, 106 (2016).
7. Jack M. Balkin, Constitutional Interpretation and the Uses of History 132 (forthcoming, 2023).
8. 201 N.Y. 271, 94 N.E. 431 (1911).
9. Ives, 201 N.Y. at 293, 94 N.E. at 439.
10. These include private nuisance, trespass to land, and wild animals. For more on this issue, see Donald G. Gifford, Richard C. Boldt & Christopher J. Robinette, When Originalism Failed: Lessons from Tort Law, 51 Fla. St. U. L. Rev. __ (forthcoming, 2023).