Henry v. John W. Eshelman & Sons

Joslin, J.,

-concurring. Just after the turn óf the century this court in McCaffrey v. Mossberg & Granville Mfg. Co., 23 R. I. 381, at least by way of dicta, departed from the rule in Winterbottom v. Wright, 152 Eng. Rep. 402, which limited the liability of a manufacturer for defects in his product to- those with whom he was in privity. In McCaffrey we said that even in the absence of a direct 'contractual relationship, a manufacturer of a product immi- *526 neatly dangerous to life or limb might be liable in an action of negligence to the ultimate consumer. Our reasoning was that the law imposes a duty “upon every one to avoid acts which, in their nature, are dangerous to the lives'of others.”

In Minutilla v. Providence Ice Cream Co., 50 R. I. 43, the imminently or inherently dangerous to human safety doctrine, the application of which was at that time confined in many jurisdictions to products such as poisons and explosives, was extended to include foodstuffs and we held “that a maker who through a retailer furnishes unwholesome food or drink for public consumption may be directly liable [in an action for negligence] to the injured consumer who' purchases from the retailer.” In substance we followed MacPherson v. Buick Motor Co., 217 N. Y. 382 , where Judge CardozO' said that the exception to the requirement of privity of contract in negligence actions should not be “limited to■ poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction.” To him, liability absent privity turned not on the inherent nature of the product, but on whether if negligently manufactured it was “reasonably certain to place life and limlb in peril * * When that certainty was accompanied by “knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.”

While judicially we repudiated the privity of contract requirement in negligence actions for reasons resting at least in part on .considerations of public policy, Minutilla v. Providence Ice Cream Co., supra, at page 46, when it came to. actions in assumpsit for breaches of implied warranties this court, in Lombardi v. California Packing Sales Co., 83 R. I. 51, and Wolf v. S. H. Wintman Co., 87 R. I. 156, adhered to' the privity requirement holding in effect that a declaration of a public policy which might impose án obli-' *527 gat-ion on a manufacturer to exercise reasonable care to those whose life or limib may be exposed to- risk in the use of his product is, in absence of emergency or extreme conditions, a legislative rather than a judicial function. The majority reaffirm -the ground upon which the court based its decisions in Lombardi and Wolf.

While a deferral to the legislature in the initiation of changes in matters -affecting public policy may often be appropriate, it'is not required where the concept demanding change is judicial in -its origins. The requirement of privity in suits against a manufacturer is such a concept. It is- of judicial making and was first enunciated in Winterbottom v. Wright, supra, where Lord Abinger said n-ot to insist upon it could result in “absurd and outrageous consequences, to which I can see no- limit,” and Alderson, B., opined that “The only safe rule is to- confine the right to-recover to those who enter into the -contract * *

If historically there were a distinction between an action in tort and -one in assumpsit for a breach of warranty, I would not be troubled by the dichotomy resulting from our judicial relaxation of the privity requirement in fort cases and the majority's insistence that any change in that requirement as to cases sounding in contract must come from the legislature. Su-oh, however, is not -the case f-o-r in early times an action for breach of warranty sounde-d in tort and it was not until Stuart v. Wilkins, 1 Douglas 18, was decided in 1778 that it was settled that such an action could be brought in -assumpsit. 1 Williston, Sales (rev. ed.) §195, pp. 501-02; Prosser, Torts (2ded.) §83, p. 493; Ames’ History of Assumpsit, 2 Harvard L. Rev. 1, 8. In those circumstances, I agree with the statement that “Alteration of the law in such matters has been the business of the * * * courts * * Greenberg v. Lorenz, 9 N.Y.2d 195 . See also Picker X-Ray Corp. v. General Motors Corp., D.C. Mun. *528 Ct. of App,. 185 A.2d 919 , and General Motors Corp. v. Dodson, 47 Tenn. App. 438 .

There is, of course, no doubt that the courts have been much slower to break the privity barrier where the suit has been for a breach of an implied warranty rather than for negligence, but in recent years the legal writers almost unanimously, and the courts in ever-increasing numbers, have done so. Prosser, Torts (2d ed.) §84, pp. 507-08; 2 Harper & James, Torts §28.16, pp. 1570-74; Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120 ; Randy Knitwear, Inc. v. American Cyanamid Co., 11 N.Y.2d 5 ; Rogers v. Toni Home Permanent Co., 167 Ohio St. 244 ; Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358 .

Various devices have been adopted to achieve the result. They include theories that the manufacturer’s vendee is the agent of the ultimate consumer or user, that the consumer is a third-party beneficiary, that the warranty “runs with the product,” and that the social policy of our day, differing as it does from what it was in the days when the user more customarily dealt directly with the producer, calls for minimizing the danger to the consumer and placing the risk of loss upon him who has first placed the commodity in the chain of commerce. Prosser and 2 Harper & James, supra. The last-mentioned theory is perhaps predominant and the one which I find compelling.

I have deemed it advisable to set forth my views notwithstanding that I do not believe that considerations of public policy justify a departure from our requirement of privity on .the facts of this case. How far those considerations will influence my views in the future must necessarily depend on the cases which may come before us. I aim not yet, however, prepared to adopt a rule of strict liability which would make every producer a guarantor of the fitness of his product.

*529 Zietz, Sonkin & Radin, James Rodin, for plaintiffs.

Francis V. Reynolds, Leonard A. Kiernan, Jr., for defendant.

Roberts, J., concurs in the opinion of Joslin, J.