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69 Yale L.J. 1099 (1959-1960)
The Assault upon the Citadel (Strict Liability to the Consumer)

handle is hein.journals/ylr69 and id is 1109 raw text is: THE YALE LAW JOURNAL VOLumE 69 JUNE 1960 NumBER 7 THE ASSAULT UPON THE CITADEL (STRICT LIABILITY TO THE CONSUMER) WILLIAM L. PROSSERt Tn. assault upon the citadel of privity is proceeding in these days apace. So said Cardozo in 1931,1 and has been much quoted since. With the passage of nearly thirty years, a goodly part of the citadel still holds out; but the assault goes on with unabated vigor. It is the purpose of this Article to in- quire, how goes the battle, in one very important and more or less separate area of the fight, where the seller of chattels defends against the ultimate consumer, with whom he stands in no privity of contract. ,One major bastion, that of negligence liability, has been carried long since, and its guns turned inward upon the defenders. Another, that of the strict liability of the seller of food and drink, is hard pressed and sore beset, and may even now be tottering to its fall. Elsewhere along the battlements there have been minor breaches made, but the defense is yet stout. War correspondents with the beleaguering army 2 are issuing daily bulletins, proclaiming that the siege is all but over. From within the walls comes the cry, not so; we have but begun to fight.3 Watchman, what of the night? The tale of the storming of the heights of negligence has been told too often for any need to repeat it here4 In 1842 Lord Abinger foresaw the most tDean, School of Law, University of California (Berkeley). 1. Ultramares Corp. v. Touche, 255 N.Y. 170, 180, 174 N.E. 441, 445 (1931). 2. EHRENZWEIG, NEGLIGENcE WrrHouT FAULT (1951); Friedmann, Social Irsurancc and the Principles of Tort Liability, 63 HAv. L. Rzv. 241 (1949); James, Accident Liability Reconsidered: The Impact of Liability InMrance, 57 YALE L.J. 549 (1948); James & Thornton, The Impact of Inmrance on the Law of Torts, 15 LAw & Comrnnm'. PROB. 431 (1950) ; James, Social Insurance and Tort Liability: The Problem of Alterna- tive Remedies, 27 N.Y.U.L. REv. 537 (1952); McNiece & Thornton, Is the Law of Negligence Obsolete? 26 ST. JOHN'S L. REv. 255 (1952); James, Some Reflections on the Bases of Strict Liability, 18 LA. L. REv. 293 (1958). 3. Peairs, The God in, the Machine, 29 B.U.L. REv. 37 (1949); Plant, Strict Liability of Manufacturers for Injuries Caused by Defects in Products-An Opposing Vicu; 24 TErxn. L. REv. 938 (1957). 4. Bohlen, Liability of Manufacturers to Persons Other That Their Immediate Ver- dees, 45 L.Q. REv. 343 (1929) ; Feezer, Tort Liability of Manufacturers and Vendors, 10 MiNi. L. REv. 1 (1925); Feezer. Tort Liability of Manufacturers, 19 Mmnw. L. Rsv. 752 (1935) ; Russell, Manufacturers' Liability to the Ultimate Consumer, 21 Ky. L.J. 3,8 (1933) ; Jeanblanc, Manufacturers' Liability to Persons Other Thein Their Immediate

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