recognizing strict product liability tort theory in addition to negligence and warranty theories of liability
How later courts described this case
- recognizing strict product liability tort theory in addition to negligence and warranty theories of liability
- plaintiff must prove malfunction of automobile lights caused the accident and arose from a defect present at time of purchase
- noting that a plaintiff may proceed on both an implied warranty claim and one for strict liability
- plaintiff must prove that the malfunction of automobile lights caused the accident and that the malfunction arose from a defect present at the time of purchase
Written by the judges who cited it.
The opinion
*41 Grimes, J.,
dissenting in part Whatever may be my views on the application of strict liability to a manufacturer against whom fault can at least be inferred from the existence of the defect ( see Zellers v. Chase, 105 N. H. 266, 197 A. 2d 206 ), I cannot subscribe to the broad sweep of the opinion in this case which will impose liability upon retailers who have done nothing wrong and against whom no wrong can be inferred because they had no means to control either the quality or design of the product or to discover any defect.
The court has abandoned “the consistent policy evidenced by an unbroken line of decisions in this state which . . . impose liability at common law for negligence only” (King v. Association, 100 N. H. 212, 217, 123 A. 2d 151 ) because such a rule was “evolved when products were simple and the manufacturer and seller generally the same person.” In its place it has adopted a rule with a basis vaguely referred to as an “ancient one” but which, if “ancient,” must also have been evolved when products were simple and the seller and the manufacturer were generally the same person.
It is true that things are different now, but the change works against, not in favor of, the imposition by judicial fiat of liability without fault on the retailer who is a mere conduit between the manufacturer and the consumer. The articles he carries in his stock may not be his choice but that of his customers. Under modern marketing methods, the manufacturers by nationwide advertising create consumer demand for their products and the retailer stocks the items because of that consumer demand. To satisfy that demand, the retailer may be forced to stock several brands of the same item from which the customer makes his choice. I see no justice in requiring a retailer to respond in damages without fault for injury to a customer caused by a can of shaving cream which he himself selected from the retailer’s shelves and which the retailer was carrying in stock in response to consumer demand. Once the concept of fault as a basis of tort liability is abandoned, there are no guidelines save the court’s choice for determining upon whom liability will be imposed in order to provide maximum protection for those who are injured but who are unable to prove fault because none exists.
I would allow the plaintiff to proceed on the basis of warranty but not on the basis of strict liability in tort.