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33 Vand. L. Rev. 593 (1980)
Unmasking the Test for Design Defect: From Negligence [to Warranty] to Strict Liability to Negligence

handle is hein.journals/vanlr33 and id is 607 raw text is: Unmasking the Test for Design
Defect: From Negligence [to
Warranty] to Strict Liability to
Sheila L. Birnbaum*
The doctrine of strict products liability is grounded in social
and economic policy considerations that were inadequately served
under traditional negligence and warranty concepts.' In 1916, in
the watershed decision of MacPherson v. Buick Motor Co.,2 Judge
Cardozo announced the philosophical point of departure out of
which products liability law was to emerge:
If the nature of a thing is such that it is reasonably certain to place life
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. . . . We have put aside the notion
that the duty to safeguard life and limb, when the consequences of neg-
ligence may be foreseen, grows out of contract and nothing else. We
have put the source of the obligation where it ought to be. We have put
its source in the law.3
With one deft stroke, Judge Cardozo tore down the privity barrier
to recovery in a negligence action. The MacPherson decision, how-
ever, did a great deal more than simply remove a legal technicality.
Judge Cardozo focused the inquiry on what is the wellspring of all
tort law-defining the nature and extent of the duty owed.4
The privity doctrine dictated that the manufacturer's duty ex-
tended only to the immediate purchaser.5 As one could see even as
* Professor of Law, New York University Law School; A.B., 1960, M.A., 1962, Hunter
College; J.D., 1965, New York University. The author gratefully acknowledges the invaluable
assistance of Barbara Wrubel of Fordham University School of Law.
1. See Greenman v. Yuba Power Prods., Inc., 59 Cal. 2d 57, 377 P.2d 897, 27 Cal.
Rptr. 697 (1963); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960);
Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 YALE L.J. 1099
2. 217 N.Y. 382, 111 N.E. 1050 (1916).
3. Id. at 389-90, 111 N.E. at 1053.
4. At the very outset of the decision, Judge Cardozo concisely stated the issue: The
question to be determined is whether the defendant owed a duty of care and vigilance to any
one but the immediate purchaser. Id. at 385, 111 N.E. at 1051.
5. Winterbottom v. Wright, 10 M. & W. 109, 152 Eng. Rep. 402 (1842).

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