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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

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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