Product Liability

History of Liability

The common law origins of the concept of liability date from 1763 in England and 1791 in the United States. In the British and American legal tradition, the concept of legal liability was hedged by strict boundaries in the 18th and 19th centuries An ethic of individualism was dominant in legal thinking which held that only individuals involved in direct contractual agreements. or who were victims of personally inflicted damage. were eligible to sue on the basis of liability or negligence. Until the early 20th century, Valerie P. Hans writes, “a variety of legal rules and societal and judicial attitudes supported the ethic of individual responsibility.”

This was very much in tune with the dominant ideology of free-market capitalism, that is, a belief in unrestrained economic growth, free trade, and a minimal role for the state and courts in business activities. The product liability of manufacturers was thus severely restricted since the sale of a good was regarded solely as a commercial transaction between seller and buyer. Legal historians argue that this restricted definition of liability with regard to products was one of the most uniform and strictly followed laws in both England and America.

For much of the 19th and 20th centuries, courts followed the precedents of the 1842 English case Winterbottom v. Wright. Winterbottom, a coach[Page 638] driver, was severely injured when the poorly built vehicle he was driving collapsed. The coach had been bought by the postmaster general from the manufacturer, Wright. Winterbottom worked for a company which was contracted by the postmaster general to provide horses and drivers for its coaches. In other words, he was not employed directly by the company that bought the defective product. Winterbottom's case against Wright was dismissed on the basis that the seller of the product cannot be sued, even for demonstrable negligence, by a party with whom no contractual agreement existed. In legal terms, Winterbottom was not “in privity” with Wright.

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