The opinion
TRAYNOR, J., Concurring and Dissenting.
The evidence that plaintiff handled the bottle carefully and that the impact causing it to break was only a mild one was sufficient to support a finding that it was defective when Ardens Farms delivered it to plaintiff. It is reasonable to infer not only that this impact occurred when plaintiff placed the bottle on the drain board but that it was no more severe than the normal impact attending such placement. Therefore plaintiff’s expert could justifiably conclude that the bottle was defective in some way at the time it broke, even though he could not determine the nature of the defect from an examination of the broken bottle. It could reasonably be inferred that no other member of plaintiff’s family handled the bottle, since she was the only one who used skimmed milk and it was her custom to identify the bottle of such milk with a rubber band and to set it to one side of the milk-bottle tray in the refrig *236 erator. Conceivably others in the family could have struck the other bottles against that one; but that possibility is remote given the evidence that no member of the family had ever broken a milk bottle. Milk bottles are ordinarily sturdy enough to withstand the impacts of normal usage. The bottle in question was not, and it is therefore reasonable to conclude that it was defective when delivered to plaintiff. (See Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 532 [ 203 P.2d 522 ], concurring opinion.)
Although I believe that there is also sufficient evidence of the other elements of a cause of action for breach of warranty, I would emphasize that “The remedies of injured consumers ought not to be made to depend upon the intricacies of the law of sales.” (Ketterer v. Armour & Co., 200 F. 322, 323 ; Klein v. Duchess Sandwich Co., Ltd., 14 Cal.2d 272, 282 [ 93 P.2d 799 ].) Liability should not be determined mechanically by fortuitous circumstances. It should not be controlling that the injury occurs after rather than before a sale. (Compare Mead v. Coca Cola Bottling Co., 329 Mass. 440 [ 108 N.E.2d 757, 759 ] [bottle exploded after it was taken from vending machine: warranty] with Lasky v. Economy Grocery Stores, 319 Mass. 224 [ 65 N.E.2d 305, 307 ] [bottle exploded before customer in self-service store carried it past the check stand: no warranty].) It should not be controlling that the bottle is sold rather than bailed. (See Cooper v. Newman, 11 N.Y.S.2d 319 , 320; Geddling v. Marsh [1920], 1 K.B. 668, 672-673.) It should not be controlling that the consumer is found to be in privity of contract with the defendant rather than not. (See Klein v. Duchess Sandwich Co., Ltd., 14 Cal. 2d 272 [ 93 P.2d 799 ].) The liability of the manufacturer should not turn on Avhether he has “contracted” to assume it under such erratic tests that haphazardly afford recovery to some and deny it to others. “ [P]ublic policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market.” (Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 462 [ 150 P.2d 436 ], concurring opinion; see 2 Harper and James, Torts, pp. 1570 et seq.)
In the Escola case, as in Gordon v. Aztec Brewing Co., 33 Cal.2d 514 [ 203 P.2d 522 ], the court invoked res ipsa loquitur to affirm judgments for damages resulting from explosions of beverage bottles. My own concurrence in those judgments rested on the ground that “it should now be recognized that a manufacturer incurs an absolute liability when an article *237 that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings.” ( 24 Cal.2d at 461 .) I adhere to that view and would therefore reverse the judgment of nonsuit in favor of Arden Farms in this case.
Although this court in Burr v. Sherwin Williams Co., 42 Cal.2d 682, 695-696 [ 268 P.2d 1041 ], refused to extend strict liability to property damage in the absence of privity of contract or an express representation of the manufacturer relied upon by the ultimate purchaser, it has recognized that manufacturers are strictly liable to the consumer in cases of foodstuffs. (Klein v. Duchess Sandwich Co., Ltd., 14 Cal.2d 272 [ 93 P.2d 799 ].) To date a majority of the court have solved the problem of liability for harm caused by defective food containers in terms of negligence without considering strict liability as an alternative ground of recovery. (Honea v. City Dairy, Inc., 22 Cal.2d 614 [ 140 P.2d 369 ]; Escola v. Coca Cola Bottling Co., 24 Cal.2d 453 [ 150 P.2d 436 ] ; Gordon v. Aztec Brewing Co., 33 Cal.2d 514 [ 203 P.2d 522 ] ; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436 [ 247 P.2d 344 ].) Whatever the arguments for limiting the manufacturer’s strict liability to foodstuffs, there is no rational basis for differentiating between foodstuffs and their containers. (Nichols v. Nold, 174 Kan. 613 [ 258 P.2d 317, 323 ] ; Cooper v. Newman, 11 N.Y.S.2d 319 , 320; Haller v. Rudmann, 249 App.Div. 831 [ 292 N.Y.S. 586, 587 ] ; McIntyre v. Kansas City Coca Cola Bottling Co. (Mo), 85 Fed.Supp. 708, 711; Mahoney v. Shaker Square Beverages, Ohio C. P., 102 N.E.2d 281, 289 ; Geddling v. Marsh, [1920] 1 K.B. 668, 672-673; Morelli v. Fitch and Gibbons, [1928] 2 K.B. 636, 642-644; see Prosser, Torts, [2d ed.] § 84, p. 509.) It would clarify the law to repudiate that differentiation openly rather than to circumvent it covertly and haphazardly by leaving juries free to impose strict liability if they so choose, under the guise of res ipsa loquitur. (See concurring opinion in Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 532 [ 203 P.2d 522 ], and cases cited.)
There is no evidence that the bottle was defective when it was delivered to Arden Farms by Owens-Illinois. Since it withstood usage by Arden Farms and its customers for many months, the only reasonable inference is that it was not defective when Owens-Illinois delivered it to Arden Farms. The nonsuit in favor of Owens-Illinois was therefore proper under any theory of liability. I would therefore affirm *238 the judgment as to defendant Owens-Illinois and reverse it as to defendant Arden Farms.