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Brandeis University Law Journal 2023-2024, Volume 11

The Development of Privity of Contract as the Common

Law Standard for Product Liability: An Analysis of

Winterbottom v. Wright, Thomas v. Winchester, and

Industrialization

Harrison Sugarman434

This article explores the development of standards of product
liability during the Market Revolution, arguing that jurists
adopted the standard of privity of contract to protect
manufacturers from the legal consequences of
industrialization. This article surveys the history of product
liability prior to the Market Revolution, and then it describes
how Winterbottom v. Wright and Thomas v. Winchester
radically departed from this tradition. This article then
analyzes how judges specifically feared the increased volume
of liability cases under a strict liability framework that would
have arisen from a depersonalized and mechanized economy.
The article concludes with parallels between questions
surrounding product liability in the Market Revolution and the
present day.

I. Introduction

James McGreevey, former Governor of New Jersey,
once said, “the arc of American history almost inevitably
moves toward greater individual legal rights.”435 Since the
1930s, his statement applies to much of American history, but

435 James McGreevey, James McGreevey Quotes, BrainyQuote.com,
https://www.brainyquote.com/quotes/james_mcgreevey_468732.https://ww
w.brainyquote.com/quotes/james_mcgreevey_468732.

434 Brandeis University Undergraduate, Class of 2024.

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there have also been long periods where legislatures and courts
restricted individual rights. For example, American courts
dismantled a series of 17th and 18th-century legal privileges
during the Market Revolution (1815-1855). This was a period
of unprecedented economic growth, industrialization, and
corporatization in the rapidly maturing republic. During these
years, the courts particularly targeted product liability, a
“condition of being bound to respond because a wrong has
occurred… with reference to property, proceeds[, or] yield.”436

Under the colonial standard of strict liability, average
consumers could have successfully sued for injuries caused by
a manufacturer "when neither care nor negligence, neither good
nor bad faith, neither knowledge nor ignorance will save [the]
defendant.”437

Winterbottom v. Wright (1842) and Thomas v.
Winchester (1852), two court cases decided within a decade of
each other, overturned strict liability and replaced it with a
standard of privity of contract. Jurists define this concept as
“that connection or relationship which exists between two or
more contracting parties.”438 In other words, these two cases
limited a manufacturer’s duty of care strictly to consumers with
whom a contract was agreed. This sudden shift in jurisprudence
left scholars of American legal history perplexed as to what
caused this departure from precedent. This article argues that
judges established privity of contracts to protect manufacturers
from the potential legal ramifications of industrialization. This
article provides background on the strict liability era, and the
two cases that overturned it. It will also connect the factual
background of the cases with the two trends, the emergence of

438 Id. at 1362.
437 Black, supra note 436 at 1591.

436 Henry Campbell Black, Black’s Law Dictionary, 1060, 1374 (4th ed.
1968),
https://heimatundrecht.de/sites/default/files/dokumente/Black%27sLaw4th.
pdf.

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a “faceless economy” and dangerous industrial technology, that
led judges to legally insulate manufacturers. Lastly, the article
will establish broader connections between late 19th century
product liability standards and modern tort jurisprudence.

II. Background

Prior to Winterbottom v. Wright, product liability was an
obscure field of the law that had hardly changed since its
inception. Historians have determined that early Roman law
includes the first mention of product liability as a legal
concept.439 Laws, such as the Twelve Tables of 450 BC,
presumed that goods purchased by consumers at a fair price
should be of a fair quality, and therefore, the manufacturer was
liable for any injury the purchaser suffered as a result of the
manufacturer’s negligence.440 When Rome conquered Britain
in 43 AD, Roman law strongly influenced English common
law and continued to prove fundamental long after the fall of
the Western Roman Empire.

In his Summa Theologica, St. Thomas Aquinas —
among the foremost Western philosophers — defended the
virtue of strict liability on the basis that selling a product with a
known liability was a sin according to scripture.441 Scholars
agree that his endorsement contributed to strict liability’s
survival throughout the Medieval Era.442 English colonists
imported English common law to the New World, including its
understanding of product liability, and it remained foundational
into the Antebellum Period.443 Until 1842, American courts

443 Id. at 959–960.
442 Id. at 958–959.
441 Owen, supra note 439 at 958.

440 John C. Reitz, A History of Cutoff Rules as a Form of Caveat Emptor:
Part II-From Roman Law to the Modern Civil and Common Law, 37 Am. J.
Comp. Law 247, 249 (1989).

439 David G. Owen, The Evolution of Products Liability Law, 26 Rev. Litig.
955, 956 (2007).

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upheld this standard of product liability which remained
virtually unchanged since antiquity.444

It was in Winterbottom v. Wright that courts took the
first step to dismantle the ancient standard of strict liability.
Winterbottom, a stagecoach driver, was severely injured when
his stagecoach broke down on August 8, 1840.445 An
investigation revealed that the carriage broke down because
Wright, a stagecoach repairman and builder, did not properly
maintain it.446 Consequently, Winterbottom sued Wright for
damages, and the case went all the way to the Court of
Exchequer, which ultimately ruled in favor of the
respondent.447 The court reasoned that Wright acted negligently
but was not liable for Winterbottom’s injuries because Wright
owed Winterbottom no duty of care.448

The court ruled that a manufacturer could only owe a
consumer a duty of care within privity of contract; that is, only
a well-established contract between parties could, in case of
breach, give rise to damages.449 Winterbottom and Wright did
not have a contractual relationship due to the absence of privity
between them as consumer and servicer.450 Winterbottom
worked as a driver for the Postmaster-General, and the
Postmaster-General was, in turn, employed by Nathaniel
Atkinson, a wealthy aristocrat.451 Atkinson also employed

451 Id. at 109.
450 Id.
449 Winterbottom v. Wright, supra note 445 at 110–116.
448 Black, supra note 436 at 267.

447 Id; the Court of Exchequer was one of the four major courts of England
prior to the reorganization of the English court system during the late 19th
century. The court heard common and natural law cases, especially those
relating to financial matters and equity.

446 Id.

445 Winterbottom v. Wright, 110–116,
https://sites.la.utexas.edu/judpro/files/2016/02/Winterbottom-v.pdf.

444 Id. at 960.

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Wright to maintain his fleet of carriages.452 Hence, Wright had
no contractual obligations to Winterbottom because they did
not sign a contract to formally establish any duty of care.453

Wright vanished from the historical record after this case, but
Winterbottom remained handicapped for the rest of his life and
did not receive compensation for his injuries.454

Ten years later, Thomas v. Winchester affirmed the
legality of Winterbottom v. Wright’s precedent, with certain
exceptions. The facts of the case are as follows: Mrs. Mary
Ann Thomas became ill in 1849.455 After visiting the doctor,
Mrs. Thomas received a prescription for dandelion extract.456

Her husband picked up a dose from Dr. Foord’s drug store, but
immediately after Mrs. Thomas took the medication, she fell
almost fatally ill.457 An investigation discovered that the jar
was mislabeled and contained belladonna, a poison that
resembles dandelion extract. Mr. Thomas sued the labeler, an
employee of Winchester named A. Gilbert. Gilbert sold the
mislabeled belladonna to a distributor named Aspinwall, who
then sold it to Dr. Foord.458

The case eventually reached the New York Court of
Appeals in 1852 and the court ruled in favor of Thomas.459 The
court upheld the legality of privity of contract, but it ruled that
the danger and blatancy of Winchester’s negligence made it
almost tantamount to manslaughter.460 Justice Ruggles made
this argument by first defining manslaughter as “[when]

460 Thomas v. Winchester, supra note 456.
459 Id.
458 Id.; Daniel Breen, supra note 454.
457 Id.

456 Thomas v. Winchester,
https://www.nycourts.gov/reporter/archives/thomas_winchester.htm (last
visited Dec 3, 2023).

455 Id.
454 Daniel Breen, The Role of the Judge in Formulating Legal Rules, (2021).
453 Id. at 110–116.
452 Id.

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culpable negligence, [an individual] causes the death of
another, although without intent to kill.”461 He then included
several examples of case law where a court found a pharmacist
or chemist guilty of manslaughter due to mislabeling by an
employee, improper mixing of chemicals, or any other such act
of negligence.462 Mrs. Thomas' survival of the poisoning
shielded him from criminal prosecution, but the court found
“no doubt of his liability in a civil action” according to their
understanding of equity.463 Thus, Thomas v. Winchester
crystalised the precedent of Winterbottom v. Wright that a
manufacturer could only be liable for damages within the
privity rule, except in cases where products were “imminently
dangerous to human life.”464

III. Connections from the Case to the Argument

This article primarily relies upon two sources of
information. The first is a set of legal opinions from the Market
Revolution, Winterbottom v. Wright and Thomas v. Winchester.
These legal decisions offer the fact patterns or the key facts of
a particular legal case, and the court’s reasoning behind each
decision. Second, this article utilizes scholarly articles that
trace the development of Anglo-American product liability law,
and provide invaluable context and an overview of broad
American legal and historical trends. Articles written by
Donald G. Gifford, a Professor of tort law at the Francis King
Carey School of Law, and David G. Owen, a professor
emeritus at the Joseph F. Rice School of Law support my
argument that courts established the privity of contract standard
to protect nascent industry from legal repercussions. These
articles provide invaluable contextualization and overviews of

464 Id.; Daniel Breen, supra note 454.
463 Id.
462 Id.
461 Id.

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broad legal and historical trends that will help understand the
development standards of product liability. Thus, these two
types of sources create a robust explanation for the switch in
standards of product liability.

The establishment of the privity rule had a profound
impact on American society because it facilitated American
industrialization during the second half of the 19th century. To
this effect, Owen writes, “the privity requirement was an
effective instrument of social policy for a nation bent on
promoting the development of its infant industries.”465 In other
words, American manufacturers were left uninhibited by the
fear of product liability litigation.466 This allowed
manufacturers to expand in size, develop new technologies,
and take risks that contributed to the US’s unparalleled
economic supremacy by the beginning of the 20th century.467

Gifford best summarizes this development:

“[t]he liability exposure of businesses [that] heavily
invested in new technologies was almost assuredly
substantially reduced. As a result, railroads, mines, and
factories flourished. In effect, the change from a strict
liability to a negligence-based regime created a
‘subsidy’ for railroads and other newly emerging
industries.”468

The decision to establish the privity of contract standard
represented a massive departure from the tradition of
formalism in American jurisprudence.469 Formalist political and

469 Michael Willrich, The Making of the U.S. Constitution, Part II, (2022).
468 Id. at 30–31.

467 Donald G. Gifford, Technological Triggers to Tort Revolutions: Steam
Locomotives, Autonomous Vehicles, and Accident Compensation, 30 (2017),
https://digitalcommons.law.umaryland.edu/fac_pubs/1590.

466 Id.
465 Owen, supra note 439 at 963.

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legal theorists of the Early Republic, such as Alexander
Hamilton and other Federalists (and later Whigs), maintained
that judges “[had] no active resolution whatsoever.”470 Law, in
the formalist tradition, evolves by applying a precedent to
different fact patterns, which leads to the gradual “discovery of
new law.”471 However, as American historian Morton Horowitz
writes, the Market Revolution (the period of economic,
technological, and political growth during the Antebellum
Period) “reflected the overthrow of eighteenth-century
pre-commercial and anti-developmental common law
values.”472 This included the anachronistic judicial paradigm of
formalism. In replacement of formalism, legal instrumentalism,
which advanced that the law could be directed toward a
collective social good, began to dominate American courts,
including the NY Court of Appeals.473

According to accredited sources, any discussion about
American product liability, privity of contract, and Thomas v.
Winchester would be fundamentally incomplete without
discussing Winterbottom v. Wright at length.474 Although the
case was adjudicated under English law, applying the
principles of Winterbottom v. Wright to American jurisprudence
is essential because the NY Court of Appeals adopted the Court
of Exchequer’s approach, exemplifying the concurrent
socioeconomic and legal challenges Great Britain and the US
faced as a consequence of industrialization and economic
expansion.

474 Daniel Breen, supra note 454; Gifford, supra note 467 at 50; Owen,
supra note 439 at 960.

473 Michael Willrich, supra note 469.

472 Morton J. Horwitz, The Rise of Legal Formalism, 19 Am. J. Leg. Hist.
251, 251 (1975).

471 Id.

470 Alexander Hamilton, No. 78, in The Federalist 401, 409 (by Alexander
Hamilton ed. et al. eds., Gideon ed. 2001).

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IV. Analysis

A. The Technology-Expansion Fear

Judges also feared that strict liability left manufacturers
vulnerable to litigation resulting from the expansion of the
market of manufactured goods.475 The Market Revolution and
industrialization increased the overall efficiency of production
and distribution which dramatically lowered prices for
consumers.476 The lower cost of finished products allowed
more consumers to engage in the market and created a middle
class of high-paid workers and managers who could now afford
these products.477 Because they were part of the emerging
consumer class themselves, judges keenly realized that the
combination of these factors would produce more injuries
inflicted by defective products.478 Other businesses also
constituted a large share of the manufactured goods market,
and the amount of product liability lawsuits coming from the
private sector dramatically rose in the decades prior to 1842.479

Faulty machinery caused 63 percent of injuries in the textile
industry—among the largest aspects of American
industry—and many of these injured people successfully sued
the manufacturers.480 Judges understood that, in the words of
Gifford, the “darker side to this unprecedented expansion of
technology and industry,” would engulf American industry if
strict liability was not modified or replaced.481

Even more, judges feared the consequences of an
expanding market with increasingly dangerous products and

481 Id.
480 Id. at 18.
479 Id. at 19.
478 Gifford, supra note 467 at 31.
477 Michael Willrich, supra note 469.

476 Michael Willrich, Legal Instrumentalism in the Age of the Market
Revolution, (2022).

475 Gifford, supra note 467 at 17.

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machinery. Lewis Mumford, a foremost American historian
and sociologist of the 20th century, described the Industrial
Revolution as “a transition from the ‘ecotechnic’ era,
characterized by wood, water, and handicrafts, to a new
‘paleotechnic’ world of steam, iron, and factories.”482

Essentially, the Industrial Revolution represented a shift in both
the materials and methods of manufacturing, moving away
from craftsmanship toward industrialization. The industrial
machines that dominated this new paleotechnic era provided
“much greater [power] than that supplied during the
pre-industrial era by humans and animals and, as a result, the
severity of the injury was likely to be much greater.”483 Market
Revolution judges presumed that the increased severity of
injuries caused by paleotechnic technology would increase the
likelihood that a consumer would seek legal action against a
negligent manufacturer.484 A trend in tort law vindicated this
belief because, before 1842, mechanized transportation
(railroads and steamships) generated a disproportionate amount
of litigation, and the severity of the injuries incentivized
victims to sue tortfeasors.485 Judges found the idea of
mechanized transportation companies being litigated to
bankruptcy especially likely, and disturbing, because of their
risk, profitability, and economic importance.486 Chief Justice
Lemuel Shaw, in the Massachusetts Supreme Court’s ruling on
Farwell v. Boston & Worcester Railroad Company (1842),
wrote that the protection of the nascent railroad industry “is an
action of new impression in our courts, and involves a principle
of great importance.”487 In that case, a railroad engineer sued

487 Farwell v. Boston & W. R. R. Corp, 55,
https://advance.lexis.com/api/document?collection=cases&id=urn:contentIt

486 Michael Willrich, supra note 469.
485 Gifford, "Technological Triggers," 10.
484 Id. at 19.
483 Id.
482 Id.

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his employer for damages he suffered from the negligence of a
fellow employee.488 Shaw understood that affirming the
plaintiff’s suit would set a precedent that transportation and
heavy industry must assume the financial risk associated with
the dangers of their business, so Shaw elected to err on the side
of business and pen his infamous “assumption of risk”
doctrine.489 Judges, compelled by concerns about severity and
frequency, decided to act decisively in favor of installing
privity of contract.

The ruling in Winterbottom v. Wright illustrates the fear
of judges at a time when technology, specifically mechanized
transportation, was expanding and becoming more innovative.
Justice Byles provided, in his dissent, the example of a recent
railroad accident in France to support his argument:

“For example, every one of the sufferers by such an
accident as that which recently happened on the
Versailles railway, might have his action against the
manufacturer of the defective axle. So…every person
affected, either in person or property, by the accident,
might have an action against the manufacturer, and
perhaps against every seller also of the iron.”490

He embedded the key presumption of unreasonableness in this
example to illuminate the absurdity of Winterbottom’s case.491

His usage of the phrase “every one” suggests that the railroad
accident resulted in broad and severe damages.492 Paying
remedies for so many severe injuries would have bankrupted

492 Id.
491 Id.
490 Winterbottom v. Wright, supra note 445 at 111.
489 Id.
488 Michael Willrich, supra note 469.

em:3WBV-V4H0-00KR-F49D-00000-00&context=1516831.https://advance
.lexis.com/api/document?collection=cases&id=urn:contentItem:3WBV-V4
H0-00KR-F49D-00000-00&context=1516831.

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the manufacturer of the defective axle. He warned that
“alarming consequences” would have followed for the
economy if the court ruled for Winterbottom and defended
strict liability.493

The opinion in Thomas v. Winchester voices a concern
for unfamiliar products, and this illustrates the issues of the
technology expansion theory.494 Ruggles wrote that belladonna
and extract of dandelion “ may on careful examination be
distinguished the one from the other by those who are well
acquainted with these articles.”495 In a pre-industrial world,
someone consuming either belladonna or dandelion extract
would likely not have possessed the expertise necessary to
differentiate between the two substances themselves or
immediate access to expert supervision. Here, Ruggles
recognized that consumers buying and using unfamiliar
products was an inevitable consequence of consumerism’s
upsurge.496 Prior to industrialization, consumer expertise was a
final safeguard against injuries, but the court reaffirmed the
privity of contract to reduce manufacturer liability from
consumer unfamiliarity.

However, Ruggles somewhat accounted for the severity
of injuries caused by modern technology through the
“imminent danger” exception. Pre-industrial pharmacists could
not make enough of a drug, with sufficient concentrations of
chemicals, to accidentally kill a consumer through their
negligence.497 However, new machinery allowed pharmacists to
increase the quantity and quality of their products, so they
faced increased legal risk through producing better drugs.498

Even though the court decided to penalize Winchester, the

498 Id.
497 Daniel Breen, supra note 454.
496 Id.
495 Id.
494 Thomas v. Winchester, supra note 456.
493 Id.

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exception of “imminent danger” leaves ample space for
manufacturers of possibly hazardous products to defend
themselves from product liability lawsuits.499

B. The Faceless Economy Theory

Through analysis of the relevant literature and sources,
it became evident that judges worried that depersonalizing the
relationship between the consumer and the manufacturer would
create additional product liability lawsuits. For the purposes of
clarity, I shall refer to the aforementioned process as the
faceless economy theory. Before 1820, Gifford concluded that
few product liability lawsuits were argued because most
consumers personally knew the artisan who made their
product; they were often relatives, friends, or personally
connected.500 This connection further disincentivized the
consumer from filing a product liability lawsuit.501 Litigation
remains an inherently acrimonious and arduous process that
destroys any personal relationship between the parties.
Industrialization fundamentally depersonalized the relationship
between the manufacturer and the consumer, who started to see
manufacturers as “anonymous…large industrial enterprises that
had access to significant resources to pay for the costs of the
accidental injuries they had inflicted.”502 Judges sensed the
change in public opinion toward manufacturers and the
subsequent increased prosperity to sue them for negligence.
The privity standard theoretically remedied this issue by
rehumanizing litigation because an injured party could only sue
a manufacturer with whom he shared a contract. This implies a
certain familiarity between both parties, and therefore a desire
to avoid any acrid litigation.

502 Id.
501 Id. at 11.
500 Gifford, supra note 467 at 9, 11.
499 Id.

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The opinion in Winterbottom v. Wright demonstrates the
Court of Exchequer’s conviction in the faceless economy
theory. Lord James Scarlett Abinger, who wrote the main
opinion for the court, maligns that “if the plaintiff can sue,
every passenger, or even any person passing along the road,
who was injured by the upsetting of the coach, might bring a
similar action.”503 He foresaw that ruling in favor of
Winterbottom, based on the old standard of strict liability,
would have “le[t] in …an infinity of actions.”504 Abinger’s
language implies that any individual with the slightest injury
from the accident would try to sue Wright, a man they likely
had no personal connection with. The subsequent “infinity of
actions” would financially ruin Wright’s business and swamp
the courts with seemingly frivolous litigation.505 Therefore, the
court would prevent these opportunistic litigants by ruling for
Winterbottom.

The NYSC’s decision in Thomas v. Winchester
demonstrates the faceless economy theory because it ruled in
favor of the plaintiff and against privity of contract, based on
the exception of “imminent danger.”506 Chief Justice Charles
Ruggles, the author of the court’s unanimous opinion, upheld
the legality of the decision on Wright v. Winterbottom.
However, he stated that the court ruled against the defendant
because “the case …stand[s] on a different ground.”507 Unlike
the negligence of a repairman failing to maintain a carriage or a
“horse be[ing] defectively shod by a smith[,] … [t]he death or
great bodily harm of some person was the natural and almost
inevitable consequence of the sale of belladonna by means of
the false label.”508

508 Id.
507 Thomas v. Winchester, supra note 456.
506 Daniel Breen, supra note 454.
505 Id.
504 Id.
503 Winterbottom v. Wright, supra note 445 at 112.

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The court ruled in favor of the plaintiff for
“considerations of public policy or safety.”509 Otherwise,
manufacturers would have faced no civil legal liability for
virtual manslaughter. This decision held manufacturers more
culpable for injuries arising from their negligence.510 However,
it established such a high threshold for the “imminent danger”
exception that it shielded manufacturers from the opportunistic
litigants that judges feared.511

IV. Conclusion

Judges stimulated industrial growth during the Market
Revolution by reducing manufacturers’ legal liability to
consumers. The NYSC overturned its previous ruling on
Thomas v. Winchester with its 1916 decision on MacPherson v.
Buick Motor Company, and legal scholars view this as the
beginning of modern product liability law; the case established
the standard of reasonability, but a series of product liability
cases further reestablished the ancient standard of strict
liability.512 Justice Benjamin Cardozo of the NY Court of
Appeals astutely realized that the economy had become so
industrialized and integrated by the early 20th century that
consumers almost exclusively purchased products from
manufacturers they did not know personally.513 The distribution
of burden that privity of contract placed on consumers by that
point was so unacceptable that even conservative formalists,
like Carodozo, knew that the faceless economy theory outlived
its utility.514 In a broader context, the analysis of the shift in
product liability standards assesses the distribution of risk

514 Id.
513 Id.

512 Daniel Breen, Old Rules in Modern Settings: How the Rule of Law
Provides for Change, Even as It Strives for Consistency, (2021).

511 Id.
510 Daniel Breen, supra note 454.
509 Id.

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associated with technological progress. New forms of
industries and products unavoidably generate accidents and
injuries, so the legal system ought to establish order and assign
blame accordingly.515 Keeping pace with a rapidly globalizing
and digitizing world will continue to bedevil contemporary
jurists, as questions of industrialization frustrated them during
the Industrial Revolution.516

516 Gifford, supra note 467 at 5.
515 Michael Willrich, supra note 469.

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