Privity Law ca. 1915 II
Prof. Bill Long 12/26/05
The Really Big Case--MacPherson v. Buick (111 NE 1050)
Though the purpose of this essay is to review this seminal decision, the more significant issue on my mind is how law changes and why the New York Court of Appeals, when it had a very clear (though non-binding) precedent in the previous year precisely on all fours with the facts of MacPherson, decided the law completely differently from the Second Circuit. What is to account for the change?
The Facts, in Brief
First, the facts and issue of the case, as Cardozo tells them.
"The defendant is a manufacturer of automobiles. It sold an automobile to a retail dealer. The retail dealer resold to the plaintiff. While the plaintiff was in the car, it suddenly collapsed. He was thrown out and injured. One of the wheels was made of defective wood, and its spokes crumbled into fragments. The wheel was not made by the defendant; it was bought from another manufacturer. There is evidence, however, that its defects could have been discovered by reasonable inspection, and that inspection was omitted. There is no claim that the defendant knew of the defect and willfully concealed it. The case, in other words, is not brought within the rule of Kuelling v. Lean Mfg. Co. (183 N.Y.78). The charge is one, not of fraud, but of negligence. The question to be determined is whether the defendant owed a duty of care and vigilance to any one but the immediate purchaser."
The Rhetoric Of Judicial Decision
Justice Benjamin Nathan Cardozo, writing for a sizable majority of the court, let slip his general judicial philosophy in two passages of this 1916 decision. After quoting the limitations on the doctrine proposed by the defendant, and upheld in Cadillac, he said:
"Precedents drawn from the days of travel by stage coach do not fit the conditions of travel today. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be" 111 NE 1150.
Again, earlier in the case, after reviewing the precedents in the 60 or so years since Winchester was decided, he talked about the need to "characterize the trend of judicial thought." What captured Cardozo's approach to law was a developmental theory, a theory derived ultimately from the biological sciences and perfectly fitted to the Progressive spirit of the 1910s. Society evolves. Nature changes. Old precedents and theories may have been fit for another era, but the new challenges of our day call for new applications of law. The Christian hymn, which Cardozo, a Sephardic Jew, obviously didn't sing, teaches the same thing: "New occasions teach new duties, Time makes ancient good uncouth; They must upward still and onward, Who would keep abreast of truth" ("Once to Every Man and Nation," by James Russell Lowell, written ca. 1845).
What is to explain a spirit of the times? I believe sometimes that one's decade is one's destiny. That is, I think your "take" on the world is shaped as much by the decade or half-decade in which you were born than by many other things. Cardozo was born in 1870. He came of age during the gilded 1890s, when extravagant expressions of wealth were all around. He was bitten by the bug of those in the early 20th century who wanted to reform and modernize the law. Now he, who had only been elevated to the highest court in New York in 1914, had his chance to do the same.
The Legal Argument
But Cardozo isn't the kind of judicial activist such as Warren in 1953, Douglas in 1965 or Blackmun in 1973. Cardozo carefully combed the New York precedents beginning with Winchester and discovered what he called "narrow" and "more liberal" cases. The narrow cases only expanded the Winchester rule slightly, while the 1882 case of Devlin v. Smith (89 NY 470) was the case on which he wanted to hang a new rule of liabiltity which would allow MacPherson to recover. And Devlin was a perfect vehicle, so to speak, for an expanded rule of liability. The defendant, a contractor, built a scaffold for a painter. The painter's employee, perched 90 feet above the ground while working on the scaffold, fell to his death when the scaffold unexpectedly gave way. The contractor was held liable, with the rule of law being that the scaffold, if improperly constructed, was a most dangerous trap, and thus the responsiblity of the builder to make safe. Building a scaffold with due care so that it wouldn't injure third parties was the essence of the contract.
Cardozo also made use of the 1909 case of the exploding coffee urn, Statler v. Ray (88 NE 1063 (NY)). The urn was installed in a restaurant. When heated it exploded and injured an end-user. The NY Court of Appeals held that the manufacturer was liable. When the urn was applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully and properly constructed. The rule in Devlin and Statler is the new and more liberal rule, and as Cardozo said quite laconically, "This court is committed to the extension." He stated the holding as follows:
"We hold, then, that the principle of Thomas v. Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added 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."
Cardozo is aware that the rule he articulates for the court may become unmanageable, for if you include cars, maybe you would include bicycles, scissors, hammers, and a host of everyday products that millions of Americans use. Thus, he said, "There must be knowledge of a danger, not merely possible, but probable." It will be a difficult question for the court to sort out in the future, but sort they must do.
In the final analysis, one wonders whether Cardozo's approach owes not just something to the general spirit of the times and his construal of NY precedents but also to the freshly-discovered "safety" spirit in American life. Ever since the Food and Drug Act of 1906 was passed, America became more safety conscious. Indeed, in 1910, the Society of Automotive Engineers was founded, with their charge being to develop safe cars for mass use. Cardozo might have been in step enough with the times to realize that the 20th century was going to be a century where workplace and personal injury had to be lessened. And, he would contribute to that development.
Cardozo was a judicial activist in this case, albeit a rather moderate one. Yet, America is improved by having judges act in this role. The role of the judge can't just be to read the briefs and play umpire. Sometimes you have to read the signs of the times.
Copyright © 2004-2007 William R. Long