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

Witt & Tani, TCPI 9. Liability without Fault?
sales. The obligation of the manufacturer should not be based alone on privity of
contract. It should rest, as was once said, upon the demands of social justice.
Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69, 83 (N.J. 1960) (quotations and citations
omitted). Then the court held that the warranty of merchantability was not disclaimable.
“Automobile manufacturers,” the court observed, “undertake large scale advertising programs
over television, radio, in newspapers, magazines and all media of communication in order to
persuade the public to buy their products,” and “when a manufacturer engages in advertising in
order to bring his goods and their quality to the attention of the public and thus to create consumer
demand, the representations made constitute an express warranty running directly to a buyer who
purchases in reliance thereon.” Id. at 84. Citing “the gross inequality of bargaining position
occupied by the consumer in the automobile industry” and claiming that “there is no competition
among the motor vehicle manufacturers with respect to the scope of protection guaranteed to the
buyer,” the court struck the express disclaimer of the warranty and allowed the plaintiffs to
recover on an implied warranty of merchantability. Id. at 87.
After Henningsen, plaintiffs could bring warranty actions for personal injury without
showing negligence even if the seller or manufacturer had attempted to disclaim the warranty.
Such a warranty action was a species of contract claim. That meant that liability could only be
had for injuries arising out of failures of the product to perform as impliedly or expressly
warranted. But many observed that this warranty liability looked a lot like strict liability in tort.
Meanwhile, back in California, Justice Traynor’s idea in Escola soon made its way into a majority
opinion in tort.
3. Greenman v. Yuba Power Products. Traynor had the opportunity to convert his Escola
concurrence into the law of California in 1963. Plaintiff William Greenman, whose wife
purchased him a power tool, was injured when the tool caused a piece of wood to strike him in the
forehead. He brought implied and express warranty claims, as well as negligence claims, against
both the retailer and the manufacturer. The defendants objected, however, that he had failed to
give notice of the breach of warranty in reasonable time, as required in the law of warranties.
Justice Traynor responded that “[t]he remedies of injured consumers ought not to be made to
depend upon the intricacies of the law of sales,” and he held that injured consumers were not
subject to the notice requirement of the traditional law of warranties. Greenman v. Yuba Power
Products, Inc., 377 P.2d 897, 901 (Cal. 1963). Once warranty actions had been allowed by thirdparties
and once warranties were no longer disclaimable, Traynor insisted that the basic
distinctions between the warranty and tort causes of action had been abolished:
Id.
The purpose of such liability is to insure that the costs of injuries resulting from
defective products are borne by the manufacturers that put such products on the
market rather than by the injured persons who are powerless to protect themselves.
4. Corrective justice without fault? The Escola case and the rise of strict liability raises a
question about whether corrective justice adequately accounts for the modern law of torts. If tort
law is a law of wrongs, as the corrective justice view has it, how can there be liability without
wrongful harm, as there seems to be in non-fault liability regimes? Gregory C. Keating has
545