Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 9. Liability without Fault?
product that he is not himself able to test.
The manufacturer’s liability should, of course, be defined in terms of the safety of the
product in normal and proper use, and should not extend to injuries that cannot be traced to the
product as it reached the market.
Rehearing denied; EDMONDS, J., dissenting.
Notes
1. Justice Traynor’s concurring opinion in Escola proposed to go a good deal further than
Judge Cardozo had in MacPherson. What features of products cases would warrant such a step?
2. Henningsen v. Bloomfield Motors. One reason Traynor may have been skeptical of the
negligence cause of action in the products context emerged in Henningsen v. Bloomfield Motors
decided in New Jersey in 1960. In Henningsen, husband and wife purchased a new Plymouth
from a dealer in 1955. Ten days later, while Mrs. Henningsen was driving the vehicle, it made a
loud cracking noise, the steering wheel spun, and the car veered off the roadway and into a brick
wall. When the Henningsens sued for damages, however, they were hard-pressed to present
evidence of a defect in the automobile or of any negligence by either the dealer or the
manufacturer. At the close of evidence, the trial judge awarded judgment to the defendant on the
negligence claim.
Plaintiffs had also brought an action for breach of warranty. New Jersey, like many states,
authorizes damages for personal injuries arising from breach of warranty. And such actions do
not require any showing of negligence or fault on the part of the seller of a product, merely that
the product not satisfy the warranties of fitness and merchantability. But the plaintiffs’ warranty
action faced an obstacle of its own. In fine print, the back of the sales agreement provided that
there were “no warranties, express or implied” other than that “the manufacturer agrees to replace
defective parts for 90 days after the sale or until the car has been driven 4,000 miles, whichever is
first to occur.” Moreover, defendants contended that the warranty only created obligations to the
buyer, Mr. Henningsen, not to Mrs. Henningsen, who was not a party to the contract. Warranty
liability, they contended, still required the privity that Cardozo had abolished in negligence
actions in MacPherson.
The Henningsen court smashed through both of these obstacles. First, it held that third
parties could bring actions on the warranty:
Under modern conditions the ordinary layman, on responding to the importuning of
colorful advertising, has neither the opportunity nor the capacity to inspect or to
determine the fitness of an automobile for use; he must rely on the manufacturer
who has control of its construction, and to some degree on the dealer who, to the
limited extent called for by the manufacturer’s instructions, inspects and services it
before delivery. In such a marketing milieu his remedies and those of persons who
properly claim through him should not depend upon the intricacies of the law of
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