25 Developments in Tort Law and Early Products Liability Law
Thomas v. Winchester, Court of Appeals of New York (1852)
(6 N.Y. 397)
This is an action brought to recover damages from the defendant for negligently putting up, labeling and selling as and for the extract of dandelion, which is a simple and harmless medicine, a jar of the extract of belladonna, which is a deadly poison. [***] The plaintiff Mary Ann Thomas, [***] being in ill health, her physician prescribed for her a dose of dandelion. Her husband purchased what was believed to be the medicine prescribed, at the store of Dr. Foord, a physician and druggist in Cazenovia, Madison county, where the plaintiffs reside.
A small quantity of the medicine thus purchased was administered to Mrs. Thomas, on whom it produced very alarming effects; such as coldness of the surface and extremities, feebleness of circulation, spasms of the muscles, giddiness of the head, dilation of the pupils of the eyes, and derangement of mind. She recovered however, after some time, from its effects, although for a short time her life was thought to be in great danger.
The medicine administered was belladonna, and not dandelion. The jar from which it was taken was labeled “1/2 lb. dandelion, prepared by A. Gilbert, No. 108, John-street, N. Y. Jar 8 oz.” [***]
[Defendant Winchester manufactured, purchased and sold “certain vegetable extracts for medicinal purposes.” He hired “A. Gilbert” as an assistant and they used Gilbert’s name on the labels because that increased sales. The mislabeled extract in Mrs. Thomas’ jar was manufactured by another manufacturer or dealer, not Winchester, sold to Aspinwall with Gilbert’s label on it, and then sold it Foord who, believing it was accurately labeled, sold it to Mrs. Thomas.]
The extract of dandelion and the extract of belladonna resemble each other in color, consistence, smell and taste; but may on careful examination be distinguished the one from the other by those who are well acquainted with these articles.
[***] The case depends on [***] whether the defendant, being a remote vendor of the medicine, and there being no privity or connection between him and the plaintiffs, the action can be maintained.
If, in labeling a poisonous drug with the name of a harmless medicine, for public market, no duty was violated by the defendant, excepting that which he owed to Aspinwall, his immediate vendee, in virtue of his contract of sale, this action cannot *408 be maintained. If A. build a wagon and sell it to B., who sells it to C., and C. hires it to D., who in consequence of the gross negligence of A. in building the wagon is overturned and injured, D. cannot recover damages against A., the builder. A.’s obligation to build the wagon faithfully, arises solely out of his contract with B. The public have nothing to do with it. Misfortune to third persons, not parties to the contract, would not be a natural and necessary consequence of the builder’s negligence; and such negligence is not an act imminently dangerous to human life.
So, for the same reason, if a horse be defectively shod by a smith, and a person hiring the horse from the owner is thrown and injured in consequence of the smith’s negligence in shoeing; the smith is not liable for the injury. The smith’s duty in such case grows exclusively out of his contract with the owner of the horse; it was a duty which the smith owed to him alone, and to no one else. And although the injury to the rider may have happened in consequence of the negligence of the smith, the latter was not bound, either by his contract or by any considerations of public policy or safety, to respond for his breach of duty to any one except the person he contracted with
But the case in hand stands on a different ground. The defendant *409 a dealer in poisonous drugs. Gilbert was his agent in preparing them for market. The death or great bodily harm of some person was the natural and almost inevitable consequence of the sale of belladonna by means of the false label. Gilbert, the defendant’s agent, would have been punishable for manslaughter if Mrs. Thomas had died in consequence of taking the falsely labeled medicine. Every man who, by his culpable negligence, causes the death of another, although without intent to kill, is guilty of manslaughter. (2 R. S. 662, § 19.) [***] And this rule applies not only where the death of one is occasioned by the negligent act of another, but where it is caused by the negligent omission of a duty of that other. [c] Although the defendant Winchester may not be answerable criminally for the negligence of his agent, there can be no doubt of his liability in a civil action, in which the act of the agent is to be regarded as the act of the principal.
In respect to the wrongful and criminal character of the negligence complained of, this case differs widely from those put by the defendant’s counsel. No such imminent danger existed in those cases. In the present case the sale of the poisonous article was made to a dealer in drugs, and not to a consumer. The injury therefore was not likely to fall on him, or on his vendee who was also a dealer; but much more likely to be visited on a remote purchaser, as actually happened. The defendant’s negligence put human life in imminent danger. Can it be said that there was no duty on the part of the defendant, to avoid the creation of that danger by the exercise of greater caution? or that the exercise of that caution was a duty only to his immediate *410 vendee, whose life was not endangered? The defendant’s duty arose out of the nature of his business and the danger to others incident to its mismanagement. Nothing but mischief like that which actually happened could have been expected from sending the poison falsely labeled into the market; and the defendant is justly responsible for the probable consequences of the act.
The duty of exercising caution in this respect did not arise out of the defendant’s contract of sale to Aspinwall. The wrong done by the defendant was in putting the poison, mislabeled, into the hands of Aspinwall as an article of merchandise to be sold and afterwards used as the extract of dandelion, by some person then unknown. [***] The defendant’s contract of sale to Aspinwall does not excuse the wrong done to the plaintiffs. It was a part of the means by which the wrong was effected. The plaintiffs’ injury and their remedy would have stood on the same principle, if the defendant had given the belladonna to Dr. Foord without price, or if he had put it in his shop without his knowledge, under circumstances which would probably have led to its sale on the faith of the label. [***]
The defendant, by affixing the label to the jar, represented its contents to be dandelion; and to have been “prepared” by his agent Gilbert. The word ‘prepared’ on the label, must be understood to mean that the article was manufactured by him, or that it had passed through some process under his hands, which would give him personal knowledge of its true name and quality.
[***] [T]he defendant cannot, in this case, set up as a defense, that Foord sold the contents of the jar as and for what the defendant represented it to be. The label conveyed the idea distinctly to Foord that the contents of the jar was the extract of dandelion; and that the defendant knew it to be such. So far as the defendant is concerned, Foord was under no obligation to test the truth of the representation. [***]
GARDINER, J. concurred in affirming the judgment, on the ground that selling the belladonna without a label indicating that it was a poison, was declared a misdemeanor by statute; (2 R. S. 694, § 23;) but expressed no opinion upon the question whether, independent of the statute, the defendant would have been liable to these plaintiffs.
*412 [***] Judgment affirmed.
Note 1. Why might the case previously have depended on the fact that Thomas bought the medicine from “a remote vendor”? Why does this court determine that it does not?
Note 2. How does the court distinguish precedents to the contrary offered by the defendant?
Note 3. How would you articulate the breach of due care and the scope of the duty defendant owed Mrs. Thomas? Might it have been reasonable to inquire whether Foord also had a duty, and if so, what might the scope of that duty have required?
Note 4. Is Winchester effectively being held strictly liable for Mrs. Thomas’ injuries even though the court refers to it as negligence? Why or why not?
Note 5. What was the significance of Gilbert’s having prepared and labeled the extract?
The Progressive-Era Rise of the First Consumer Protection Laws
Before the advent of contemporary products liability law, consumers often found that laws did not meaningfully enable them to recover in tort law from injuries suffered as a result of the actions of manufacturers, distributors and vendors of food, drugs and other products including automobiles. Consumer protection and products liability law are both a product of the twentieth century, and their precursors were actions in tort law suing for injury or wrongful death. However, the plaintiff often faced hurdles that could prove insurmountable such as the requirement of a contract or privity to ground a duty, as well as difficulties asserting what happened and what fault, if any, had led to their injuries. The increasing complexity of manufacturing made injuries more frequent but also more remote and out of view from the consumer’s perspective. The increasing attenuation of the product supply chain has also meant more intermediaries between the manufacturer (along with its sub-manufacturers, potentially) and the ultimate user of the product. These factors put increasing social and legal pressure on the legal system.
Around the turn of the century, the cause of consumer welfare gained national momentum, especially with respect to food manufacturing and service. Individual states had begun promulgating laws to safeguard the purity and safety of foods. Now the attention was trained on the federal level. The push for federal legislation came partly in connection with the efforts of the so-called “muckraking journalists” dedicated to improving the lot of workers and the poor; ending child labor; and exposing corporate and governmental corruption. Progressive reformers had been lobbying for legislation since the 1880s, and over 100 bills had been considered and rejected before one was finally adopted.
In 1905, a sensationalist and melodramatic piece of fiction was published which incorporated extensive research and reporting on the meat-packing industry. Upton Sinclair’s novel, The Jungle (1905) disseminated vivid accounts of shockingly bad conditions in meat processing and manufacturing plants. The novel has been credited with bringing the imminent legal transformation to its tipping point. (“[T]he nauseating condition[s] that Upton Sinclair captured in The Jungle was the final precipitating force behind both a meat inspection law and a comprehensive food and drug law.” (See https://www.fda.gov/about-fda/changes-science-law-and-regulatory-authorities/part-i-1906-food-and-drugs-act-and-its-enforcement)). According to Dean Prosser in his seminal article on the collapse of privity as a restrictive requirement on tort law, The Jungle
“was the best selling book of the year, was translated into seventeen languages, and by 1922 had sold 150,000 copies. Intended as a piece of propaganda for socialism, The Jungle succeeded in becoming instead a minor Uncle Tom’s Cabin of the war against bad food. The author said later that he had aimed at the public’s heart, and by accident hit it in the stomach.”
William L. Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099, 1105–06 (1960)
Whatever its faults as a literary work, The Jungle was a hit, and it played a significant part in what would become the revolution transforming tort law from within. Sinclair’s novel had depicted animals who were often sick or injured and being raised and slaughtered in a state of staggering filth. Workers in the novel were treated with about as much humanity as the animals; the meat packing industry was cast as ruthlessly exploitative of immigrants and other economically and legally vulnerable communities. During debates over the passage of potential food safety legislation, legislators heard horror stories of poisonous red dyes and other toxins being used casually throughout the food manufacturing industry. These stories built on Sinclair’s damning account and helped to catalyze momentous reform.
The following year, President Theodore Roosevelt signed the Pure Food and Drug Act of 1906 and the Meat Inspection Act into law. In so doing, Roosevelt ushered in a new era of federal consumer protection and regulatory oversight of medicines, food, and meat. Various protections against medical quackery and deceptive advertising accompanied more stringent rules to ensure that food would henceforth be unadulterated. The Pure Food and Drug Act also paved the way for the creation of the Food and Drug Administration in 1930; from that time on, the FDA was the central source of regulation for substances ingested by humans (other than the Bureau of Alcohol, Tobacco, Firearms and Explosives, which was formed in 1972 and plays a rather different role).
In addition, Progressive-Era reforms led to the passage of the Federal Trade Commission Act in 1914, which created the eponymous independent agency charged with antitrust enforcement and consumer protection. Under the FTC Act,
[T]he Commission is empowered, among other things, to (a) prevent unfair methods of competition, and unfair or deceptive acts or practices in or affecting commerce; (b) seek monetary redress and other relief for conduct injurious to consumers; (c) prescribe trade regulation rules defining with specificity acts or practices that are unfair or deceptive, and establishing requirements designed to prevent such acts or practices; (d) conduct investigations relating to the organization, business, practices, and management of entities engaged in commerce; and (e) make reports and legislative recommendations to Congress.
15 U.S.C. §§ 41-58, as amended.
§ 45. Unfair methods of competition unlawful; prevention by Commission (Sec. 5) (a) Declaration of unlawfulness; power to prohibit unfair practices; inapplicability to foreign trade (1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.
Federal Regulation and the Slow Changes in State Tort Law
In retrospect, Thomas v. Winchester (the poison mislabeling case, supra at the start of Module 5), can be seen as a harbinger of the Progressive Era’s profound changes to the legal landscape. Thomas’ focus on labeling hints at the core concerns that would drive the progressive reform agenda for legal change: concerns related to consumer deception and injury to both consumers and workers. Put another way, progressive legal reforms promoted transparency, truth, safety and health. In their commitments to an increasingly robust set of protections for consumers and workers, however, these legislative changes did not always provide a right of action for injured consumers. Privity was also still a bar in cases in which there was no contract creating a duty between the parties.
Prior to these progressive reforms, consumers had had little protection against spoiled foods or injurious conditions. When diners at restaurants were injured by some non-food foreign object in their food, they were typically unable to recover for their injuries through tort law. Food purveyors could essentially ask “well, why didn’t you look at your food more carefully?” In other words, caveat emptor (“buyer beware”) was the default rule. Privity was a formidable hurdle and courts regularly declined to find for plaintiffs for various technical reasons. Yet in point of fact, this hapless state of affairs continued for some time even after the Pure Food and Drug Act’s passage in 1906.
For example, in Ash v. Childs Dining Hall Co. (231 Mass. 86) (1918) the presence of a black tack in a blueberry pie served at a restaurant was not in itself evidence of negligence on the part of the defendant who had prepared the pie. The court held that res ipsa loquitur could not be applied and that there could no liability without evidence of some sort of negligent conduct by the defendant which had caused the tack’s presence in the pie. In Chysky v. Drake Bros. Co. (235 N.Y. 468, 1923), the plaintiff received a cake from her employer and suffered injuries from a nail contained in a slice of cake when she ate it. The court dismissed her claim due to lack of privity with the cake manufacturer since it was her employer who had purchased the cake. In Redmond v. Borden’s Farm Products Co. (245 N.Y. 512, 1927), a court went the other way at first. The plaintiff, a fourteen month-old infant, had allegedly been injured by broken glass contained in a bottle of milk bought for her by her mother and distributed by the defendant. Glass passed into the infant’s mouth and caused injuries while she was drinking the milk. The case was submitted to the jury and the verdict for the plaintiff was unanimously affirmed by the Appellate Division of the Supreme Court in the First Judicial Department (218 App. Div. 722, 1926). However, on appeal to the Court of Appeals, the case was reversed with no more than the following per curiam opinion: “Judgments reversed, and new trial granted, costs to abide event, on authority of Chysky v. Drake Brothers Co., 235 N. Y. 468.” In other words, the lack of privity in Chysky so obviously controlled this decision that no further opinion was needed for reversal. If the fourteen month-old infant had bought her own milk and been injured drinking it, she could have recovered; that she was not a preternaturally precocious toddler able to do so appears to have been her legal case’s fatal flaw. It is worth pointing out that tort law’s omnipresent figure, Chief Justice Cardozo (as well as Justice Andrews, among others) concurred. Redmond v. Borden’s Farm Prod. Co., 245 N.Y. 512, 512, (1927).
Pure food legislation had improved the situation for consumers somewhat by creating a legal obligation on the part of manufacturers to safeguard their food products and to label them accurately. Recall tort law’s purposes; the legislation served as a deterrent since manufacturers and distributors had to answer to the U.S. government if they fell out of compliance with the increasing regulations imposed for food safety. Balanced with businesses’ profit motive, the new regulatory mandate created incentives to make safer food processing economically efficient. While these new laws protected consumers’ food sources, they did nothing directly to compensate victims of negligence when accidents occurred.
In negligence cases, recovery was still extremely limited and cases reflect formalistic, almost absurdly technical reasoning. Where consumers had a contract of some kind, or were in privity, they were owed a duty, and thus if the product they used or consumed was defective, recovery in tort might be allowed. Alternatively, if the defendant had intentionally hidden some defect and consumers lacked the ability to inspect goods for themselves or could not have discovered defects with their own ordinary inspection, the defendant would likely be liable in tort law for injuries their conduct caused. However, the theory of liability was fraud, not negligence, and it required a different fact pattern with a higher showing of culpability. It did help to disincentivize the tort of fraudulent concealment but it did little to help curb negligent conduct.
Although Thomas had dispensed with the privity requirement in cases of mislabeling poisons, it was only binding authority in New York and even there its scope was limited by the holding which seemed limited to errors made with respect to labeling or representing a poison or other product carrying a high risk of danger with its use. It was unclear how expansively subsequent courts would interpret it. Over time, however, other courts did build on Thomas, thus forging the beginnings of contemporary products liability law. See e.g. Schubert v. J. R. Clark Co. 49 Minn. 331 (1892) (applying Thomas to find a manufacturer liable with respect to a defective ladder); Devlin v. Smith (89 N.Y. 470 (1882) (applying Thomas to hold liable the builder of a 90-foot scaffold for painters after it collapsed, killing the painter because the scaffold, like the poison, was an inherently dangerous product); Torgesen v. Schultz, 192 N.Y. 156, 157–58, 84 N.E. 956 (1908) (applying Thomas to find a jury question where plaintiff lost an eye due to the explosion of a bottle of carbonated water filled and put upon the market by the defendant).
Many of the early cases in what now is considered modern products liability law arose at the boundaries of tort and contract through the ideas of privity and warranty. They also often featured fact patterns with asymmetrical information, such as when manufacturers or retailers possessed the ability to inspect or confirm that a product was defect-free while the consumer lacked such an ability. Many cases arose in the areas of food preparation and processing, including canning and bottling. Get ready to read a lot of cases about Coca-Cola bottles (and consider why that is). Finally, this discussion may seem like it’s revisiting ancient history not worth the time to delve into detail for the study of tort law in our era. However, the evolution of products liability law—its transformation at common law and through legislation, its expansion and subsequent contraction, its intense variation by state—provides an excellent case study in common law. Rather than finding it maddening that the rule varies so much by jurisdiction, consider the reasons for which different jurisdictions developed in particular ways. The origins of product liability law left longlasting footprints in the common law that are worth understanding as a means of contextualizing current laws and gaining the capacity to anticipate future developments. In our era of rapidly changing technological advances, there will always be new questions for jurists to consider. Studying the ways in which courts have clung to rules or dispensed with them and their rationales provides a toolkit as well as a roadmap.
Sometimes when reading older cases, there is a tendency to dismiss their fact patterns as remote in time and thus improbable or utterly different from the present moment. Be wary of this tendency; often the facts remain salient in some way even despite social and technological changes. Take the meatpacking industry as an example. Clearly, many things have changed in the industry due to the major legislation of the 20th century and expansion of the agency powers that regulate the relevant entities. Notwithstanding those changes, a recent exposé of the industry featured an author with no experience who applied for a job and received one less than five hours later.
The author of the article, Michael Holtz, reported conditions that ought to remain concerning in light of the classification of meatpacking workers as “essential” employees who continued working throughout the COVID-19 pandemic. Many were sickened and some died in consequence of outbreaks at meatpacking plants.
Consider whether you think tort law should play a role in governing questions of worker health and safety at meatpacking plants. Who should determine whether eating industrially processed meat is important enough to risk workers’ safety? Who suffers if such meat does not remain available?
Our first case is one of the earliest torts cases nationally to establishing a broader duty on the part of the defendant for injury arising from food even in the absence of privity and without the facts to sustain a fraud case. It explores a theory of “implied warranty” with a rationale reminiscent of Thomas’ legal reasoning.