Strict Liability to the Consumer in California
![handle is hein.journals/hastlj18 and id is 49 raw text is: Strict Liability to the Consumer
in California
By WLmLIA L. Pnossima
THE problem of the liability of the seller of a product to the ultimate
user first entered California in 1896, with the case of Lewis v. Terry.'
The upright end of a folding bed manufactured by the defendant fell
in upon the plaintiff as she was about to retire for the night, and broke
her arm. At that time there was a well established general rule, mis-
takenly2 derived from the old English case of Winterbottom v. Wright,8
that the seller of any chattel was not liable to the consumer even for
negligence, unless there was privity of contract between them. To this
rule, over half a century, two more or less generally recognized excep-
tions had developed in other jurisdictions. One was that if the seller
knew that the chattel was dangerous, and failed to disclose it, he be-
came liable in tort for something like fraud upon the consumer.4 The
other was that if the chattel fell into a vaguely undefined category of
inherently or imminently dangerous articles, which at least in-
cluded drugs, food and drink, explosives and firearms, a tort duty
arose toward the ultimate user to exercise reasonable care to protect
him. In the Lewis case the first of these exceptions was sufficiently
pleaded in the complaint, and the court approved and adopted it in
reversing an order sustaining a demurrer. Subsequent cases agreed.'
This was the progenitor of all of the law on liability to the consumer
Professor of Law, University of California, Hastings College of the Law.
1 I Cal. 39, 43 Pae. 398 (1896).
2One of the important contr ibutions of the late Professor Francis H. Bohlen was
the laying of this ghost in Bohlen, The Basis of Affirmative Obligations in the Law of
Tort, 44 Am. L. REG. (N.S.) 209, 280-85, 289-310 (1905). See also Lord Atkin, in
Donoghue v. Stevenson, [1932] A.C. 562, 588-89.
3 10 M. & W. 109, 152 Eng. Rep. 402 (Ex. 1842).
4 The earliest case, Langridge v. Levy, 2 M. & W. 519, 150 Eng. Rep. 863 (Ex.
1837), affirmed in 4 M. & W. 337, 150 Eng. Rep. 1458 (Ex. 1838), involved express
misrepresentation as to the safety of a gun, and liability was rested on deceit. Later
decisions, such as Schubert v. J. R. Clark Co., 49 Minn. 331, 51 N.W. 1103 (1892),
and Huset v. J. L Case Threshing Mach. Co., 120 Fed. 865 (8th Cir. 1903), found
negligence in non-disclosure.
5Baker v. Sears Roebuck & Co., 16 F. Supp. 925 (S.D. Cal. 1936); see Cliff v.
California Spray Chem. Co., 83 Cal. App. 424, 257 Pae. 99 (1927); and cf. Tingey v.
E. F. Houghton & Co., 30 Cal. 2d 97, 179 P.2d 807 (1947); Call v. Union Ice Co.,
108 Cal. App. 2d 303, 239 P.2d 48 (1951); Crane v. Sears Roebuck & Co., 218 Cal.
App. 2d 855, 32 Cal. Rptr. 754 (1963).](ViewImageLocal?handle=hein.journals/hastlj18&div=10&collection=&method=preview&ext=.png&size=3)
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Strict Liability to the Consumer in California
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