Indiana Law Review


Delimiting the Manufacturer's Liability: An Examination
of Loss of Consortium Recovery in Strict Products

Liability Actions Under Section 402A of the Restatement
(Second) of Torts

I. Introduction

In 1963, the judiciary first recognized the manufacturer's strict tort

Habihty in Greenman v. Yuba Power Products, Inc? The American Law
Institute adopted section 402A of the Restatement (Second) of Torts

—

Special Liability of Seller of Product for Physical Harm to User or
Consumer in 1965.^ Based largely on policy considerations,^ strict products

Hability evolved with great emphasis on consumer protection/ This led

to the continued expansion of the scope of the doctrine.^ Yet the courts

rarely conducted a detailed analysis of whether the policy goals of section

402A were actually promoted by the ever-expanding scope of the man-

ufacturer's liability.^

1. 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1963).

2. Restatement (Second) of Torts § 402A (1965).
3. See, e.g., Greenman, 59 Cal. 2d at 63-64, 377 P.2d at 901, 27 Cal. Rptr. at

701. See generally Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50

Minn. L. Rev. 791 (1966) [hereinafter Fall of the Citadel]; Prosser, The Assault Upon
the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099 (1960) [hereafter Assault

Upon the Citadel].
4. See Vandall, Our Product Liability System: An Excellent Solution to a Complex

Problem, 64 Den. U.L. Rev. 703, 715 (1988). See also Manuel & Richards, Economic
Loss in Strict Liability—Beyond the Realm of Section 402A, 16 Mem. St. U.L. Rev. 315
(1986).

5. See Shepard v. Alexian Bros. Hosp., 33 Cal. App. 3d 606, 612, 109 Cal. Rptr.

132, 135 (1973) (California cases expanded the scope of the Greenman doctrine by imposing

strict liability on retail dealers (Vandermark v. Ford Motor Co., 61 Cal. 2d 256, 391

P.2d 168, 37 Cal. Rptr. 896 (1964)); wholesale and retail distributers (Barth v. B.F.

Goodrich Tire Co., 265 Cal. App. 2d 228, 71 Cal. Rptr. 306 (1968)); home builders
(Kriegler v. Eichler Homes, Inc., 269 Cal. App. 2d 224, 74 Cal. Rptr. 749 (1969)); bailors

and lessors of personal property (McClaflin v. Bayshore Equipment Rental Co., 274 Cal.

App. 2d 446, 79 Cal. Rptr. 337 (1969)); and hcensors of chattels (Garcia v. Halsett, 3

Cal. App. 3d 319, 82 Cal. Rptr. 420 (1970)). The standard of strict Hability has been
held to apply to a defect in design as well as a defect in manufacture (Pike v. Frank

G. Hough Co., 2 Cal. 3d 465, 467 P.2d 229, 85 Cal. Rptr. 629 (1970)) and extends not
only to actual consumers or users, but to any human being to whom an injury from the
defect is reasonably foreseeable (Elmore v. American Motors Corp., 70 Cal.2d 578, 451

P.2d 84, 75 Cal. Rptr. 652 (1969)).

6. Shepard v. Superior Court, 76 Cal. App. 3d 16, 27, 142 Cal. Rptr. 612, 619

(1977) (Kane, J., dissenting).

821



822 INDIANA LAW REVIEW [Vol. 22:3

The recognition of loss of consortium as a redressable cause of

action within the context of strict products liability provides an excellent

example of the expansion of section 402A with a lack of appropriate
judicial discourse. Courts have consistently permitted the loss of con-

sortium claim in strict products Uability actions. Upon reviewing the
decisions in many jurisdictions, a federal district court noted that it had
*'not found a single case where a consortium claim was dismissed in a

products Uability action. To the contrary, the decisions do not even
question the vaUdity of a consortium claim. "^ Yet liability under section

402A of the Restatement is strict liability in tort^—culpability of the
defendant is not a necessary factor. Accordingly, the scope of the

manufacturer's responsibility should be carefully delineated.

Whether the loss of consortium cause of action is appropriately

within the scope of section 402A liability depends primarily upon policy
considerations^ which have significantly shifted in the two decades since

the estabhshment of strict tort liability. Therefore, this note details the

relevant historical aspects of the loss of consortium and strict tort Uability

doctrines, as well as society's current concern with deUmiting liability.

Analysis of the apposite case law and Restatement provisions follow.

Although valid arguments support both views of the issue, countervailing

poUcies are now sufficient to preclude continued manufacturer respon-
sibility for this legal wrong. Thus, thorough judicial analysis of the loss

of consortium claim under a strict products liability theory is both timely

and appropriate.

II. Relevand Historical Considerations

A. The Loss of Consortium Cause of Action

A cause of action for loss of consortium has existed for hundreds
of years. ^° Significantly, the nature of the claim continually adapted to

meet the changing needs of society. Originally, the term consortium

denoted the husband's legal right to the wife's performance of the duties

and obligations assumed by her upon marriage. ^^ The husband's cause

7. Timms v. Verson Allsteel Press Co., 520 F. Supp. 1147, 1151 (N.D. Ga. 1981).
8. Restatement, supra note 2, § 402A comments a and m.
9. See Borer v. American Airlines, Inc., 19 Cal. 3d 441, 563 P.2d 858, 138 Cal.

Rptr. 302, 306 (1977) (in delimiting the extent of a tortfeasor's responsibility for damages

under the general law of torts, the courts must locate a line between liability and nonliability

at some point, a decision which is essentially political).

10. This legal right was first recognized in Guy v, Livesey, 79 Eng. Rep. 428
(1681).

11. See generally. Note, Loss of Consortium: Paradise Lost, Paradise Regained,

15 CuMB. L. Rev. 179 (1984) (authored by Nancy C. Osborne).



1989] MANUFACTURER'S LIABILITY 823

of action originated at a time in history when the wife was wholly
subserviant and the law viewed his loss primarily in terms of the dep-

rivation of her services—her performance in caring for the home, rearing
the children, and serving her husband. '^ Although the cause of action

was first permitted only against one who intentionally infringed upon
those rights, ^^ the courts ultimately extended the loss of consortium claim

to cases in which the injury to the wife was negligently inflicted. ^"^

A wife, however, did not originally have a similar cause of action.
Prior to the passage of the married woman's acts, a married woman
did not have a separate legal identity and could not sue in her own
name.^^ The emancipation statutes, therefore, played an important role

in the evolution of the loss of consortium action. Once endowed with

rights equal to her husband's, the courts quickly recognized the wife's

cause of action where the defendant's wrong was an intentional one.'^

However, not until 1950, in Hitaffer v. Argonne Co.,^'' did a court

allow a wife's claim for loss of consortium due to a negligent injury

to her husband. ^^ Further, no significant trend followed this decision

until ten years later when one court aptly noted that "the obstacles to
the wife's action were 'judge invented'" and were therefore subject to

judicial destruction.^^ By the 1970's, an overwhelming majority of states
recognized the wife's cause of action for loss of consortium.^^

Concurrent with the grant of the wife's right to claim loss of

consortium, a gradual shift in the focus of loss of consortium ensued.

Rather than the tangible and pecuniary entitlement to services, the

intangible relational aspects of the loss were emphasized. ^^ Thus, the

modern definition of consortium tends to be vague and indefinite and

12. Id. at 184.

13. See Guy v. Livesey, 79 Eng. Rep. 428 (1681). See generally Note, supra note
11.

14. See, e.g., Skoglund v. Minneapolis St. Ry., 45 Minn. 330, 47 N.W. 1071

(1891), overruled, Roland v. Morrill, 275 Minn. 496, 148 N.W.2d 143 (1967); Busch v.
Busch Constr., Inc., 262 N.W.2d 377 (Minn. 1977).

15. See generally Chused, Late Nineteenth Century Married Women's Property
Law: Reception of the Early Married Women's Property Acts by Courts and Legislatures,
29 Am. J. Legal Hist. 3 (1985); Chused, Married Women's Property Law: 1800 - 1850,
71 Geo. L.J. 1359 (1983).

16. See, e.g., Hinnant v. Tidewater Power Co., 189 N.C. 120, 126 S.E. 307 (1925),
overruled, Nicholson v. Hugh Chathan Mem. Hosp., 300 N.C. 295,^ 266 S.E.2d 818 (1980).

17. 183 F.2d 811 (D.C. Cir. 1950), overruled on other grounds, Smither & Co.
V. Coles, 242 F.2d 220 ( D.C. Cir. 1957).

18. See Hitaffer, 183 F.2d at 813.

19. Dini v. Naiditch, 20 111. 2d 406, , 170 N.E.2d 881, 892 (1960).

20. See Note, supra note 11, at 190-91 n.85.

21. Id.



824 INDIANA LAW REVIEW [Vol. 22:3

the * Various attempts at defining it only aggrevate its nebulosity. "^^

Further, today the term is applied to many different relationships and
is defined in the context of the particular relationship for which protection

is sought. 2^ The definitions typically include the term '* society," which

one court noted as referring to a
*

'broad range of mutual benefits each

family member receives from [the] other's continued existence, including
love, affection, care, attention, companionship, comfort and protec-

tion.
''^4

Accordingly, the loss of consortium claim evolved into the area of

filial relationships in recent years. In 1975, in Shockley v. Prier,^^ the

Wisconsin Supreme Court permitted parents to recover for the loss of

their child's aid, comfort, society and companionship resulting from the

defendants' neghgence.^^ In 1980, in Ferriter v. Daniel O'Conneirs Sons

Inc.,^^ a child's cause of action for the negligent deprivation of parental

consortium was granted by the Massachusetts Supreme Court. ^^ Moreover,

the court in Ferriter stated that ''as claims for injuries to other rela-

tionships come before us, we shall judge them according to their nature
and force. "29

In conclusion, the doctrine of loss of consortium dramatically evolved

through the years to conform to contemporary society. Although the

courts expanding the cause of action routinely recognized the fear that

22. Hodges v. Johnson, 417 S.W.2d 685, 691 (Mo. Ct. App. 1967).

23. See, e.g., Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (1981) (child sought
recovery for loss of parental society and companionship); Kailimai v. Firestone Tire &
Rubber Co., 87 Mich. App. 144, 273 N.W.2d 906 (1978) (spouse sought recovery for loss
of society, companionship, services, and all other incidents of the marriage relationship);

Wangen v. Ford Motor Co., 97 Wis. 2d 260, 294 N.W.2d 437 (1980) (parent sought
recovery for loss of child's services, society, companionship, and pecuniary support); Elden

V. Sheldon, 46 Cal. 3d 267, 758 P.2d 582, 250 Cal. Rptr. 254 (1988) (cohabitant sought

recovery for loss of conjugal society, comfort, affection, companionship and sexual relations

because there was a stable and significant relationship parallel to a marital relationship).

24. Consolidated Machines., Inc. v. Protein Prods. Corp., 428 F. Supp. 209, 228

(M.D. Fla. 1976) (an action for loss of society under maritime laws).

25. 66 Wis. 2d 394, 225 N.W.2d 495 (1975).
26. Id. at , 225 N.W.2d at 501. Accord Reben v. Ely, 146 Ariz. 309, 705

P.2d 1360 (1985); Norvell v. Cuyahoga County Hosp., 11 Ohio App. 3d 70, 463 N.E.2d

111 (1983). But see Baxter v. Superior Court, 19 Cal. 3d 461, 563 P.2d 871, 138 Cal.

Rptr. 315 (1977); Wilson v. Gait, 100 N.M. 227, 668 P.2d 1104 (1983).
27. 381 Mass. 507, 413 N.E.2d 690 (1980).

28. Id. at 413 N.E.2d at 696. Accord Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981),
overruled, Audubon-Exira Ready Mix, Inc. v. IlHnios Cent. Gulf R.R., 335 N.W.2d 148
(Iowa 1983); Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (1981); Hay v. Medical
Center Hosp., 145 Vt. 533, 496 A.2d 939 (1985); Ueland v. Reynolds Metals Co. (State

Report Title: Veland v. Pengo Hydra-Pull Corp.), 103 Wash. 2d 131, 691 P.2d 190 (1984);

Theama v. City of Kenosha, 117 Wis. 2d 508, 344 N.W.2d 513 (1984).
29. Ferriter, 381 Mass at , 413 N.E.2d at 696.



1989] MANUFACTURER'S LIABILITY 825

liability might ultimately reach too far, the arguments advanced for

restraining the claim were generally rejected due to policy considerations,

or as one court noted, '*due to an absence of sufficient countervailing

policy. "^° As a result, it is reasonable to assert that the cause of action

will continue to expand.

The cause of action for loss of consortium was initially available

when the injury was intentionally inflicted, and only gradually extended

to cases of negligence. Research yielded no case adopting a new cause

of action for loss of consortium in which the legal injury resulted from

conduct governed by the law of strict liability. Because the courts have

analyzed and endorsed the validity of loss of consortium recovery in

the negligence context, the issue becomes whether the policies and ra-

tionales underlying strict tort liability are distinct enough to justify a

different result.

B. The Manufacturer's Strict Liability in Tort

Unhke the doctrine of loss of consortium, strict products liability
is of relatively recent origin. ^^ MacPherson v. Buick Motor Co.,^^ decided
in 1916, is often noted as the father of modern products liability actions.

MacPherson *s abrogation of the privity requirement in negUgence actions"

was a major development in the evolution of the doctine. Yet the difficult

task of proving the negligence of an often remote manufacturer still

confronted the plaintiff. ^^ Thus, the courts often resorted to the doctrine

of res ipsa loquitur which permitted at least an inference of negligence

from the presence of a defective product on the market. ^^

A leading re ipsa case, Escola v. Coca-Cola Bottling Co. ,^^ provided
the opportunity for Justice Traynor to enunciate the concept of strict

30. Ekalo V. Constructive Serv. Corp., 46 NJ. 82, 215 A.2d 1, 8 (1965). See also
Swartz V. United States Steel Corp., 293 Ala. 439, , 304 So. 2d 881, 883-87 (1974)

(the court rejected each of the six arguments contending that allowance of the wife's

claim would: (1) ignore the state constitution; (2) repudiate the doctrine of stare decisis;

(3) violate the doctrine of separation of powers by judicial invasion of the legislative

function; (4) create the possibility of double recovery for a single injury; (5) allow an

extension of causes of actions to all persons who suffer a loss when a loved one has
been injured; and (6) cause difficulties in assessing damages).

31. For a history of products Hability, see generally R. Epstein, Modern Products
Liability Lavv^ (1980); Prosser, Assault Upon the Citadel, supra note 3.

32. 217 N.Y. 382, 111 N.E. 1050 (1916).

33. Id. at , 111 N.E. at 1053.

34. See Prosser, Assault Upon the Citadel, supra note 3, at 1114.
35. See, e.g., Gordon v. Aztec Brewing Co., 33 Cal. 2d 514, 532, 203 P.2d 522,

524-35 (1949). See generally Jaffe, Res Ipsa Loquitur Vindicated, 1 Buffalo L. Rev. 1,
13 (1951).

36. 24 Cal. 2d 453, 150 P.2d 436 (1944).



826 INDIANA LAW REVIEW [Vol. 22:3

liability in tort in a concurring opinion issued in 1944. Traynor stated

that *'it should now be recognized that a manufacturer incurs an absolute
liability when an article that he has placed on the market, knowing that
it is to be used without inspection, proves to have a defect that causes

injury to human beings. "^^ In justification, Traynor noted the realities
of modern manufacturing and marketing as well as the manufacturer's
potential to increase product safety and the availability of insurance.^*

He presented a strong argument for the idea that the manufacturers,
as a group and an industry, should absorb the inevitable losses which

result from the use of their products, because they are in a better position

to do so.^^ Thus, it was pubUc policy which prompted the manufacturer's

liability.

A number of legal scholars agreed with Traynor's reasoning and
urged the judicial creation of strict tort liability."^ However, no American

court adopted such a rule until 1963 in Greenman v. Yuba Power
Products, InCy"^^ when Justice Traynor wrote for a unanimous court.
The court in Greenman held that **[a] manufacturer is strictly liable in
tort when an article he places on the market, knowing that it is to be
used without inspection for defects, proves to have a defect that causes

injury to a human being. '"^^ Further, the court noted the policy that
the costs of injuries resulting from defective products should be borne

by the manufacturers who market them rather than by the consumers
who are powerless to protect themselves. "^^ Other jurisdictions rapidly
adopted the "loss shifting" theory enunciated in Escola and adopted in

Greenman. The courts manifested a unified purpose—to protect the
consumer'^—and thus the strict tort liability concept developed with the
goal of making it easier for consumers to obtain compensation."*^

The rapid acceptance of Greenman was aided by the American Law
Institute's adoption of section 402A of the Restatement (Second) of

37. Escola, 24 Cal. 2d at 461, 150 P.2d at 440 (Traynor, J., concurring).

38. Id. at , 150 P.2d 440-4L

39. See Prosser, Assault Upon the Citadel, supra note 3, at 1120.
40. See, e.g.. Green, Should the Manufacturer of General Products Be Liable

Without Negligence?, 24 Tenn. L. Rev. 928 (1957); James, General Products—Should

Manufacturers Be Liable Without Negligence?, 24 Tenn. L. Rev. 923 (1957); Noel,

Manufacturers of Products—The Drift Toward Strict Liability, 24 Tenn. L. Rev. 963
(1957); Prosser, Assault Upon the Citadel, supra note 3; Wilson, Products Liability Part
1: The Protector of the Injured Person, 43 Calif. L. Rev. 614 (1955).

41. 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1963).

42. Greenman, 59 Cal.2d at 60, 377 P.2d at 900, 27 Cal. Rptr. at 700.

43. Id.

44. See Vandall, supra note 4, at 715.

45. Id. at 710.



1989] MANUFACTURER'S LIABILITY 827

Torts'*^ two years later. The new section provided for the "special liability

of sellers of products for physical harm to users or consumers.'*'*^

However, the drafting of section 402A began well before the judicial

recognition of strict tort liability in Greenman. In 1961, the Reporter

for the Restatement, Dean William Prosser, introduced the original

version of section 402A to the American Law Institute (ALI)/^ This
draft indicated that a seller would be strictly liable for '^bodily harm"^^

resulting from the sale of impure food for human consumption.^^ How-
ever, after noting that many jurisdictions had recently extended the rule
to products intended for intimate bodily use, the ALI voted to corre-
spondingly enlarge the scope of section 402A.^' Yet the second draft of

section 402A," which was accepted at the 1962 ALI meeting, ^^ still
contained the provision that the seller would be subject to liability for

'^bodily harm. "5^

In 1964, although much of the Restatement (Second) of Torts was
at the printer, Prosser resubmitted section 402A to the ALI due to the

46. Section 402A provides:
(1) One who sells any product in a defective condition unreasonably dangerous
to the user or consumer or to his property is subject to liability for physical

harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without

substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale

of his product, and

(b) the user or consumer has not bought the product from or entered

into any contractual relation with the seller.

Restatement (Second) of Torts § 402A (1977).
47. This is the title of § 402A. See Restatement, supra note 46, § 402A.

48. See 38 A.L.I. Proc. 49-58 (1961).

49. See id. at 64. "[A]s long as the section is limited to food, we are Hmiting it
to personal injury—injury to the body." Id.

50. Restatement (Second) of Torts (Tent. Draft No. 6, at 24 (1961)). "One
engaged in the business of selling food for human consumption who sells such food in
a defective condition unreasonably dangerous to the consumer is subject to liability for

bodily harm thereby caused to one who consumes it . ..." /c/. (Emphasis added).
51. See A.L.I. Proc, supra note 48, at 75. In addition, the movement toward

strict liability for all products was recognized through the use caveats. Id. at 85-86.

52. Restatement (Second) of Torts (Tent. Draft No. 7, at 1 (1962)). "One
engaged in the business of selling food for human consumption or other products for
intimate bodily use, who sells such a product in a defective condition unreasonably
dangerous to the consumer, is subject to liability for bodily harm thereby caused to one
who consumes it . . . ." /</. (Emphasis added).

53. See 39 A.L.I. Proc. 244 (1962).

54. See Tent. Draft No. 7, supra note 52.



828 INDIANA LAW REVIEW [Vol. 22:3

rapid development in the case law.^^ Prosser accordingly urged the ALI
to expand section 402A to encompass all products. ^^ With this revision,
the term **physical harm" was substituted for "bodily harm."^^ Prosser
explained that this semantic change was necessary to denote *'not only

physical injury, but also property damage; in other words, tangible

damage. "^^

The ALI hurriedly passed the resubmitted version of section 402A,^^
and in the following decade a large majority of the jurisdictions adopted

some form of strict tort liability against manufacturers and sellers for

injuries caused by defective products.^ Although subtle variations exist,

55. 40 A.L.I. Proc. 349 (1964) (both Henningsen v, Bloomfield Motors, Inc., 32

N.J. 358, 161 A.2d 69 (1960) and Greenman v. Yuba Power Products, Inc., 59 Cal. 2d

57, 377 P.2d 897, 27 Cal. Rptr. 697 (1963) had been decided by this time). In addition,

a number of jurisdictions extended the strict liability to products for external bodily use,

and several others were on the verge of such action. Id. at 350.

56. Prosser went so far as to predict that strict tort liability for injuries caused

by defective products would be the majority rule within fifty years. Id.

57. Restatement (Second) of Torts (Tent. Draft No. 10, at 1 (1964). "One who
sells any product in a defective condition unreasonably dangerous to the user or consumer

or to his property, is subject to liability for physical harm thereby caused to the ultimate

user or consmuer, or to his property . . . ." M (Emphasis added).
58. A.L.I. Proc, supra note 48, at 64. Prosser stated: "If you want to include

other products, then I think you are going to have to include property damage, and make

that 'physical harm.' " Id.

59. See A.L.I. Proc, supra note 55, at 375.
60. See, e.g.. Clary v. Fifth Ave. Chrysler Center, Inc., 454 P.2d 244 (Alaska

1969); O.S. Stapley Co. v. Miller, 103 Ariz. 556, 447 P.2d 248 (1968); Greenman v. Yuba

Power Products, Inc., 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1963); Bradford

V. Bendix-Westinghouse Automotive Air Brake Co., 33 Colo. App. 99, 517 P.2d 406

(1973); Garthwait v. Burgio, 153 Conn. 284, 216 A.2d 189 (1965); Stewart v. Budget

Rent-A-Car Corp., 52 Haw. 71, 470 P.2d 240 (1970); Shields v. Morton Chemical Co.,

95 Idaho 674, 518 P.2d 857 (1974); Suvada v. White Motor Co., 32 111. 2d 612, 210

N.E.2d 182 (1965); Cornette v. Searjeant Metal Products, Inc., 147 Ind. App. 46, 258

N.E.2d 652 (1970); Hawkeye-Security Ins. Co. v. Ford Motor Co., 174 N.W.2d 672 (Iowa

1970); Dealers Transport Co. v. Battery Distrib. Co., 402 S.W.2d 441 (Ky. 1965); Spence

V. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 90 N.W.2d 873 (1958);
Farr v. Armstrong Rubber Co., 288 Minn. 83, 179 N.W.2d 64 (1970); State Stove Mfg.

Co. V. Hodges, 189 So. 2d 113 (Miss. 1966); Keener v. Dayton Elec. Mfg. Co., 445

S.W.2d 362 (Mo. 1969); Brandenburger v. Toyota Motor Sales, U.S.A., Inc., 162 Mont.

506, 513 P.2d 268 (1973); Kohler v. Ford Motor Co., 187 Neb. 428, 191 N.W.2d 601

(1971); Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970); Buttrick v.

Arthur Lessard & Sons, Inc., 110 N.H. 36, 260 A.2d 111 (1969); Glass v. Ford Motor
Co., 123 N.J. Super. 599, 304 A.2d 562 (1973); Stang v. Hertz Corp., 83 N.M. 730, 497

P.2d 732 (1972); Codling v. Paglia, 32 N.Y.2d 330, 298 N.E.2d 622, 345 N.Y.S.2d 461

(1973); Johnson v. American Motors Corp., 225 N.W.2d 57 (N.D. 1974); Lonzrick v.

Republic Steel Corp., 6 Ohio St. 2d 227, 218 N.E.2d 185 (1966); Kirland v. General

Motors Corp., 521 P.2d 1353 (Okla. 1974); Heaton v. Ford Motor Co., 248 Or. 467,
435 P.2d 806 (1967); Webb v. Zenn, 422 Pa. 424, 220 A.2d 853 (1966); Ritter v. Narragansett



1989] MANUFACTURER'S LIABILITY 829

the strict tort liability generally adopted has been that denoted in section

402A or enunciated in Greenman.^^ The judiciary and the drafters of
section 402A intended the manufacturer's strict tort liability to be a
**special liability of sellers for physical harm to users or consumers. ''^^

Thus, a reasonable question is whether loss of consortium, being an

intangible and nonpecuniary harm to one with a special relationship to

the injured person, was contemplated as being within the scope of the

'* special" Uability.

C. Society's Current Concern—Delimiting Liability
As previously noted, the strict tort liability concept evolved with an

emphasis on consumer protection. ^^ The courts generally reiterated the

policies of loss-distribution or risk spreading, the availability of insurance,

and injury reduction through enhanced safety.^ As a result, litigants
view section 402A as a panacea to correct all of the alleged wrongs
inflicted by a product manufacturer and thereby tend to use the theory

indiscriminately.^^ Yet the judiciary and the ALT never intended for
section 402A to be an exclusive remedy for all product liability litigation^

—

negligence and breach of warranty theories were intended to retain their

distinctive functions.^^ Additionally, estabHshed law holds that the man-

Elec. Co., 109 R.I. 176, 283 A.2d 255 (1971); Engberg v. Ford Motor Co., 87 S.D. 196,

205 N.W.2d 104 (1973); Ford Motor Co. v. London, 217 Tenn. 400, 398 S.W.2d 240

(1966); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex. 1967); Zaleskie v. Joyce,

133 Vt. 150, 333 A.2d 110 (1975); Ulmer v. Ford Motor Co., 75 Wash. 2d 522, 452

P.2d 729 (1969); Dippel v. Sciano, 37 Wis. 2d 443, 155 N.W.2d 55 (1967). See generally,
J. Beasley, Products Liability and the Unreasonably Dangerous Requirement, 101-339

(1981); Bieman, Strict Products Liability: An Overview of State Law, J. Prod. Liab.,
111-178 (1987).

61. See Maleson, Negligence Is Dead But Its Doctrines Rule Us From the Grave:
A Proposal to Limit Defendant's Responsibility in Strict Products Liability Actions Without
Resort to Proximate Cause, 51 Temp. L.Q. 1, 38-40 (1978).

62. This is the title of § 402A. See Restatement, supra note 46, § 402A.

63. See Vandall, supra note 4, at 715; see also Hall v. E.I. Dupont de Nemours
& Co., Inc., 345 F. Supp. 353, 368 (E.D.N.Y. 1972).

64. See, e.g.. Hall, 345 F. Supp. at 368; see also Greenman v. Yuba Power
Products, Inc., 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1963).

65. See Manuel & Richards, supra note 4, at 315.
66. See Restatement, supra note 46, § 402A comment a.
67. Section 402A appears in Chapter 14 of the Restatement (Second) of Torts

entitled "Liability of Persons Supplying Chattels for the Use of Others." This chapter

also contains several sections imposing liability for negligence on suppliers of chattels

—

the basis of which is clearly fault. In addition, the continued role of the breach of

warranty theory has been emphasized in cases such as Seely v. White Motor Co., 63 Cal.
2d 9, 403 P.2d 145, 45 Cal. Rptr. 17 (1965), in which the court recognized the Hmited

role intended for strict liability and noted that the remedy for purely economic or commercial

loss remained in the law of sales.



830 INDIANA LAW REVIEW [Vol. 22:3

ufactuer is not an insurer of the product and his strict liability may
not be equated with absolute, limitless Hability.^^

However, until the mid-seventies, commentors generally applauded

the expansion of the plaintiff's rights and remedies for product related

injuries under strict tort liability. ^^ Moreover, because products liability

insurance was at that time relatively inexpensive and easy to obtain,

there was little resistance from the business sector.^° Thus, few cases,

if any, presented a thorough and detailed analysis of whether the ever-

expanding scope of the manufacturer's liability in fact promoted the

perceived pohcy goals of Greenman and section AOIAP^
Around 1975, however, concern about a **products liability crisis"

surfaced.^^ In many jurisdictions, the complaint that the tort system had
become a compensation system with tort damages led to significant

movement toward tort reform.^^ The emphasis on consumer protection
that was predominant in the sixties began to wane with the concern that

the scales of justice were tilted too much in favor of the consumer.^"*
Today, along with many other aspects of the tort and insurance systems,
states are evaluating the effectiveness of damage awards in the product
liability area and are attempting to delimit them through legislation.^^

A similar judicial evaluation is now necessary to preserve the intended
objectives of strict tort liability. Legitimate concerns exist about the

overextension of the legal theory. Today, products liability insurance is

not inexpensive and readily available. ^^ Further, it is recognized that

there is a limit to the range of injuries and the dollar amount of recovery

which can be spread across society. ^^ The manufacturer's strict tort

68. See, e.g., Elliott v. Lachance, 109 N.H. 481, 256 A.2d 153, 156 (1969); Helene

Curtis Industries, Inc. v. Pruitt, 385 F.2d 841, 849 (5th Cir. 1967); see also Traynor,

The Ways and Means of Defective Products and Strict Liability, 32 Tenn. L. Rev. 363,
366-67 (1965).

69. See Reed & Watkins, Product Liability Tort Reform: The Case For Federal
Action, 63 Neb, L. Rev. 389, 392 (1984); see generally Epstein, Products Liability: The

Search For the Middleground, 56 N.C.L. Rev. 643 (1978); Prosser, Assault Upon the
Citadel, supra note 4.

70. Reed & Watkins, supra note 69, at 392.
71. Shepard v. Superior Court, 76 Cal. App. 3d 16, , 142 Cal. Rptr. 612,

619 (1977) (Kane, J., dissenting).

72. Reed & Watkins, supra note 69, at 392.
73. See Dodd, Proposal for Making Products Liability Fair, Efficient, and Pre-

dictable, 14 J. OF Legis. 133 (1987).

74. See generally Vandall, supra note 4.

75. See generally Gilmartin, States and Trends: Punitive Damages, 14 J. of Legis.

249 (1987); Dodd, supra note 73.

76. See generally Reed & Watkins, supra note 69.
77. Berger v. Weber, 411 Mich. 1, , 303 N.W.2d 424, 438 (1981) (Levin, J.,

dissenting).



1989] MANUFACTURER'S LIABILITY 831

liability must be carefully circumscribed if it is to be preserved as the

remedy intended by Judge Traynor and the ALI for the primary victims
of the multitude of today's product related injuries.

In delimiting the scope of a tortfeasor's liability, a court '*must take

into account considerations in addition to logical symmetry and sym-

pathetic appeal;"^^ a court must balance the need for compensation

against public policy considerations and social consequences.^^ *'[T]he

law cannot redress every injury, and the determination of where to draw

the line of liability is essentially a question of policy."*^ Thus, considering

today's emphasis on the relational, intangible and nonpecuniary aspects

of loss of consortium, ^^ a court could reasonably determine that there

are now sufficient countervailing policies and social ramifications present
to preclude the cause of action within a section 402A products liability

case.

III. Analysis of the Arguments

A. Overcoming Precedent

Because valid arguments support both sides of this issue, an initial

factor to address is that of precedent. Courts have consistently allowed

the loss of consortium claim in products liability actions, almost without

question. ^^ Thus, one could logically assert that recovery should continue.

Yet determining the extent of tort liability is more than an exercise in
logic. ^^ It is a pronouncement of social poHcy which should reflect the

subtle balance of the interests involved. ^"^

78. Borer v. American Airlines, Inc., 19 Cal. 3d 441, , 563 P.2d 858,

, 138 Cal. Rptr. 302, 306 (1977).

79. Sizemore v. Smock, 430 Mich. 283, , 422 N.W.2d 666, 670 (1988).
80. Id. at , 422 N.W.2d at 671.
81. See supra notes 21-24 and accompanying text.

82. Cf. Park v. Standard Chem. Way Co., 60 Cal. App. 3d 47, 131 Cal. Rptr.
338, 340 (1976) (Compton, J., concurring). This is the only case in which it was noted,

in the concurring opinion, that the loss of consortium claim should not be compensable

in an action based on a manufacturer's or retailer's strict liability. Judge Compton relied
upon the reasoning of Seely v. White Motor Co., 63 Cal. 2d 9, 403 P.2d 145, 45 Cal.
Rptr. 17 (1965)—that the manufacturer's liability should not be of unknown and unlimited
scope.

83. Berger v. Weber, 411 Mich. 1, , 303 N.W.2d 424, 430 (1981) (Levin, J.,
dissenting). See also, Shepard v. Superior Court, 76 Cal. App. 3d 16, , 142 Cal.

Rptr. 612, 621 (1977) (Kane, J., dissenting); Borer v. American Airlines, Inc., 19 Cal.

3d 441, , 563 P.2d 858, , 138 Cal. Rptr. 302, 305 (1977).

84. Berger, 411 Mich at , 303 N.W.2d at 430.



832 INDIANA LAW REVIEW [Vol. 22:3

Both the manufacturer's strict liability in tort and the loss of con-

sortium claims are essentially judicial creations, ^^ and are thus subject

to the scrutiny of traditional common law. The nature of the commom
law requires that each time a rule of law is applied, the courts conduct

a deliberate examination of the underlying policies to ensure that the

conditions and needs of the times have not changed so as to make
further application of the rule an instrument of injustice.®^ The inherent

capacity of the common law for growth and change is a most significant
feature. '*But that vitality can flourish only so long as the courts remain

alert to their obligation and opportunity to change the common law
when reason and equity demand it . . . ."^^ There is then, a judicial
duty to evaluate the loss of consortium claim to determine if equity

and reason now call for a change in the law.
Further, although it could be asserted that this type of change would

be better left to the legislature, the courts have frequently exercised their

power to change the law within the fields of products liability and loss

of consortium. As one court stated: *'We find no wisdom in abdicating
to the legislature our essential function of re-evaluating common-law
concepts in the light of present day realities."^* In additon, judicial

action in no way precludes a legislative appraisal of the issue: the
legislature is still free to act by way of ratification, Hmitation, or rejection
of judicial holdings. ^^ Therefore, because judicial analysis of whether

the loss of consortium cause of action should remain within the scope

of strict tort products liability is not constrained by precedent, the

following arguments merit consideration.

B. Section 693 of the Restatement (Second) of Torts

Although the original Restatement of Torts recognized the husband's

loss of consortium claim, it was not until 1969 that the American Law
Institute adopted the wife's cause of action for loss of consortium. ^^

Section 693 of the Restatement (Second) of Torts provides that one is

85. See Welti v. Moes, 311 N.W.2d 259, 266 (Iowa 1981) (loss of consortium is
a creation of the common law); Reed & Watkins, supra note 69, at 391 (products liability
law is essentially judge made).

86. 15A Am. Jur. 2d, Commom Law, § 3, 599 (1976).
87. Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382, , 525 P.2d 669,

, 115 Cal. Rptr. 765, 772 (1974).

88. Dini v. Naiditch, 20 111. 2d 406, , 170 N.E.2d 881, 892 (1960). See also

Landes & Posner, A Positive Economic Analysis of Products Liability, 14 J. Legal Stud.
535, 551 (1985) (it can be implied that legislatures act in common-law fields such as torts

only after the judiciary has failed to alter existing doctrine).

89. Hay v. Medical Center Hosp., 145 Vt. 533, , 496 A.2d 939, 946 (1985).
90. See 46 A.L.I. Proc. 148-157 (1969).



1989] MANUFACTURER'S LIABILITY 833

subject to liability for loss of consortium if '*by reason of his tortious

conduct [he] is liable to [the other] spouse for illness or other bodily

harm . . . ."^^ Yet a manufacturer's strict tort Uability is not predicated

upon '^tortious" or wrongful conduct. ^^ The touchstone of section 402A

is the presence of a defective product placed into the stream of com-

merces^ The manufacturer's conduct is not a determinative factor; rather,

the liability is based largely upon a policy determination that the man-

ufacturer or seller is in a better position to absorb the loss than the

consumer. s"* Thus, a reasonable interpretation of section 693 is that strict

products liability would not render the manufacturer liable for loss of

consortium.

However, the commentary to section 693 notes that the word * tor-

tious" includes '* conduct intended to cause harm, conduct that is neg-

ligent and conduct that is carried on at the risk of the actor. "^^ The

original Restatement, as well as the tentative draft of this section presented

to the ALT at its 1969 meeting, contained the above comment.^^ The
question then becomes whether manufacturing can be deemed conduct

carried on at the risk of the actor. The original Restatement and the

tenative draft considered by the ALI further explained the category of
*

'conduct carried on at the risk of the actor." Significantly, the final

version of this commentary contained a portion not presented to nor

debated by the ALI at its 1969 meeting:

Thus one who has become liable to a spouse because of
conducting an abnormally dangerous activity or because of harm
inflicted by a wild animal in his possession or because of sup-

plying a defective and unreasonably dangerous product, is subject

to liability to the deprived spouse under the rule stated in this

91. Section 693 provides:

(1) One who by reason of his tortious conduct is liable to one spouse for illness
or other bodily harm is subject to liability to the other spouse for the resulting
loss of the society and services of the first spouse, including impairment of

capacity for sexual intercourse, and for reasonable expense incurred by the

second spouse in providing medical treatment.

(2) Unless it is not possible to do so, the action for loss of society and services

is required to be joined with the action for illness or bodily harm, and recovery

for loss of society and services is allowed only if the two actions are so joined.

Restatement (Second) of Torts § 693 (1977).

92. See, e.g., Shepard v. Superior Court, 76 Cal. App.3d 16, , 142 Cal. Rptr.

612, 618 (1977) (Kane, J., dissenting) (the manufacturer's negligence or culpability is not

a necessary ingredient in strict products liability actions).

93. See Restatement, supra note 46, § 402A comment j.
94. See supra notes 36-45 and accompanying text.

95. See Restatement, supra note 91, § 693 comment b.
96. See Restatement (Second) of Torts (Tent. Draft No. 14, at 5 (1969)).



834 INDIANA LAW REVIEW [Vol. 22:3

Section, as well as one who has become liable because of an
intentional or negligent injury to the impaired spouse.^^

The tentative draft considered by the ALI did not include the
underlined clause relating to strict products liability. ^^ The Reporter,

Dean Prosser, therefore made this inclusion largely on his own. Yet
there was very little case law that Prosser could have used as justification

for this addition—even the Reporter's Note indicates that the vast ma-
jority of cases involving loss of consortium were based on negUgence.^^

Further, a limitation found implicitly in the relevant case law should

be considered. Decisions which have adopted loss of consortium as a

cause of action express the claim in terms of a negligent or intentional

infringement of a legally cognizable right. For example, in Rodriguez

V. Bethlehem Steel Corp.,^^ the Supreme Court of California adopted

the wife's loss of consortium claim and based its holding upon a rec-

ognition of liability '*as it is currently understood by the large prepon-

derance of our sister states and a consensus of distinguished legal

scholars."'^' The court then declared that *'each spouse has a cause of

action for loss of consortium . . . caused by a neghgent or intentional

injury to the other spouse by a third party. "^^^ Although a few recent

courts patterned their holdings after the Restatement (Second) language, ^^^

most decisions have continued to limit holdings in a manner similar to

that of Rodriguez.^^ Moreover, the very recent cases recognizing loss

of fiUal consortium have holdings limiting the liability to injuries resulting

from negligence. '°^

Additionally, it is widely recognized that Prosser exaggerated the

supporting case law in his zeal to establish the manufacturer's strict tort

Hability denoted in section 402A.^^ Thus, Prosser's inclusion of the

97.

98.

96, at 5.

99.

100.

101.

102.

103.

See id. (emphasis added).

See A.L.I. Proc, supra note 90, at 148-157; Tent. Draft No. 14, supra note

See Restatement, supra note 91, § 693 (Appendix) at 514-15.

12 Cal. 3d 382, 525 P.2d 669, 115 Cal. Rptr. 765 (1974).

Id. at , 525 P.2d at , 115 Cal. Rptr. at 771.

Id. at , 525 P.2d at , 115 Cal. Rptr. at 782.

A few courts used the "tortious conduct" language. See, e.g., Ueland v.
Reynolds Metals Co., 103 Wash. 2d 131, 691 P.2d 190 (1984); Hay v. Medical Center
Hosp., 145 Vt. 533, 496 A.2d 939 (1985).

104. See, e.g., Diaz v. Eh Lilly and Co., 302 N.E.2d 555 (Mass. 1973); Ekalo v.
Constructive Serv. Corp., 46 N.J. 82, 215 A.2d 1 (1965); Millington v. Southeastern

Elevator Co., 22 N.Y.2d 498, 239 N.E.2d 897, 293 N.Y.S.2d 305 (1968); Clouston v.

Remlinger Oldsmobile Cadillac, Inc., 22 Ohio St. 2d 65, 258 N.E.2d 230 (1970).

105. See, e.g., Ferriter v. Daniel O'Connell's Sons, 381 Mass. 507, 413 N.E.2d 690

(1980); Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (1981).
106. See Priest, The Invention of Enterprise Liability: A Critical History of the



1989] MANUFACTURER'S LIABILITY 835

above clause in the commentary to section 693 can legitimately be

questioned as a '^restatement of the existing case law" regarding loss

of consortium under a strict tort Hability theory. As a result, the issue

becomes whether the manufacturer's strict liabihty in tort should be

categorized with the other strict Hability denoted in the commentary

—

that resulting from abnormally dangerous activities or the keeping of a

wild animal.

Strict liability resulting from the keeping of a wild animal evolved

out of the primitive law which held the owner of property strictly liable

for the harm it did.^^*^ The survival of the primitive notion has been

due to modern policy considerations. ^°^ Certain animals involve an ob-

vious danger to the community; thus, those who keep such animals for
their own purposes are required to protect the community, at their peril,
against the risk involved. ^^

The roots of strict liabihty for the conducting of an abnormally

dangerous activity extend to Rylands v. Fletcher, ^^^ which imposed an
absolute duty on one who collected on his land something non-natural
and Hkely to do mischief if it escaped. ^^' Early American blasting cases' ^^

imposed liability without fault largely because the defendant elected to

engage in this perilous activity as a business.''^ The underlying rationale

for this type of strict liability was that even if the defendant exercised

reasonable care, there was still a high degree of risk of harm,"'* as

compared with negligence in which it is presumed that reasonable care

will decrease the risk of harm.

In contrast, the rationales underlying strict products hability are

readily distinguishable. First, if the manufacturer exercises due care, there

Intellectual Foundations of Modern Tort Law, 14 J. Legal Stud. 461, 514-17 (1985)
(today it is widely recognized that Prosser greatly exaggerated the case law supporting

402A). See generally Prosser, Fall of the Citadel, supra note 3; Prosser, Assault Upon
the Citadel, supra note 3.

107. DoBBS, Keeton & Owen, Prosser & Keeton on Torts, § 76, at 538 (5th
Ed. 1984).

108. Id.

109. Id. Consider for example, the propensity of cattle and horses to escape and

roam and do mischief. See, e.g., Page v. Rollingsworth, 7 Ind. 317 (1855); Gresham v.

Taylor, 51 Ala. 505 (1874).

110. Fletcher v. Rylands, 3 H. & C. 774, 159 Eng. Rep. 737 (1865), rev'd, L.R.
1 Ex. 265 (1866), aff'd, Rylands v. Fletcher, L.R. 3 H.L. 332 (1868).

111. Id. U the thing likely to do mischief escaped, the owner was prima facie
answerable for all damages which were the natural consequence of its escape. However,

assumption of the risk and an "act of God" would constitute valid defenses. Id.
112. See, e.g., Blackford v. Heman Construction Co., 132 Mo. App. 157, 112 S.W.

287 (1908); Dixon v. New York Trap Rock Corp., 293 N.Y. 509, 58 N.E.2d 517 (1944);
Gossett v. Southern Ry. Co., 115 Tenn. 376, 89 S.W. 737 (1905).

113. Id.

114. See DoBBS, Keeton, &. Owen, supra note 107, § 78, at 554-56.



836 INDIANA LAW REVIEW [Vol. 22:3

is not going to be a high degree of risk of harm. Defective products

are generally the exception, not the norm.^^^ Second, a predominant

justification of strict tort liability is that it will enhance product safety; ^^^

this implies that the level of care exercised by a manufacturer will affect

the degree of the risk of harm.^^^ Third, rather than placing the loss

on the defendant because of his election to conduct the business, the

liability is imposed as a means of shifting the loss to the manufacturer

because he is in a better position to absorb and distribute that loss

among all consumers.''^
Hence, the strict tort liability imposed on a manufacturer does not

inherently belong within the same category of the strict liability enunciated

in the original Restatement provision dealing with loss of consortium.

Indeed, placing products liability within the same class as abnormally

dangerous activities could arguably tend to discourage manufacturing

and thereby adversely affect our national economy—in which case public
policy would preclude such a classification. Therefore, although section

693 of the Restatement (Second) of Torts provides that it is appropriate

to subject the manufacturer to strict liability for loss of consortium, it

is lacking both the proper foundation and the thorough analysis necessary

to justify such a pronouncement.

C Section 402A of the Restatement (Second) of Torts
1. Express Limitations.—An analysis of valid recovery under strict

tort products liability must also focus on the specific language of section

402A of the Restatement (Second) of Torts. ''^ Section 402A expressly
limits the manufacturer's liability to "physical harm thereby caused to
the ultimate user or consumer, or to his property . . . ."'^^ Dean Prosser

115. An essential requirement for a § 402A action is that a "defect" must cause
the harm. "[A] plaintiff must trace his injury to a quality or condition of the product

which was unreasonably dangerous either for a use to which the product would ordinarily

be put, or for some special use which was brought to the attention of the defendant."

James, supra note 40, at 927.

116. See, e.g.. Hall v. E.I. DuPont de Nemours & Co., Inc., 345 F. Supp. 353,
368 (E.D.N.Y. 1972) (a rigorous rule of liability with enhanced possibilities of large

recoveries is an "incentive" to maximize safe design).

117. Id. "A manufacturer is in the best position to discover defects or dangers in
his product and to guard against them through appropriate design, manufacturing and

distribution safeguards, inspections and warnings." Id.

118. Id. "Regardless of safety measures taken by manufacturer's and distributors,

accidents and injuries will inevitably occur. . . . Accidents and injuries, in this view, are

seen as an inevitable and statistically foreseeable 'cost' of the product's consumption or

use." Id.

119. See Restatement, supra note 46, § 402A.

120. Id.



1989] MANUFACTURER'S LIABILITY 837

indicated that the deliberate use of "physical harm" was necessary if

the section was to apply to all products in order to limit the liability

to ''tangible harms. "^^' Comment d of section 402A states that the rule
obviously includes the sale of food for human consumption and other
products intended for intimate bodily use.'^^ Prosser noted during the

ALI debates that if section 402A had been limited to these products,
the rule would have been drafted with the use of "bodily harm;"'^^

because a defective food product or product intended for intimate bodily

use would naturally result in harm to the body.^^"*
However, comment d further states that the section applies "also

to products which, if they are defective, may be expected to and do
cause only 'physical harm' in the form of damage to the user's land

or chattels . . . ."^^^ This language appears to contemplate hability for

either (1) the type of "bodily harm" to a person which would naturally
be caused by a defective food product or product intended for intimate

bodily use, or (2) "physical harm" in the form of damage to the user's
land or chattels caused by any defective product.

Furthermore, one year after the adoption of section 402A by the
ALI, Professor Keeton indicated that there were four categories of harm
that could result from the use of a defective product: (1) physical injury

to persons; (2) physical damage to tangible things other than the product;

(3) physical harm to the product itself; and (4) commercial or economic
loss.'^^ Thus, nebulous and intangible harms, such as emotional distress

and loss of consortium, were not contemplated as being within the scope

of section 402A when drafted.
Section 402A further limits the manufacturer's liability to "users or

consumers" of the defective product. '^^ Interestingly, in spite of these

12L See A.L.I. Proc, supra note 48, at 64.
122. Restatement, supra note 46, § 402A comment d.
123. See A.L.I. Proc, supra note 48, at 64,
124. Id. at 55.

125. Restatement, supra note 46, § 402A comment d.
126. See Keeton, Products Liability—Some Observations About Allocations of Risks,

64 Mich. L. Rev. 1329, 1343-44 (1966). However, most courts do not allow recovery for

economic loss; see also Manuel & Richards, supra note 4, at 321.
127. The Restatement explains the terms "user or consumer" as follows: " 'Con-

sumers' include not only those who in fact consume the product, but also those who
prepare it for consumption; and a housewife who contracts tularemia while cooking rabbits
for her husband is included within the rule stated in this Section, as is also the husband

who is opening a bottle of beer for his wife to drink. Consumption includes all ultimate
uses for which the product is intended, and the customer in a beauty shop to whose hair

a permanent wave solution is applied by the shop is a consumer. 'User' includes those

who are passively enjoying the benefit of the product, as in the case of passengers in
automobiles or airplanes, as well as those who are utilizing it for the purposes of doing



838 INDIANA LAW REVIEW [Vol. 22:3

express limitations, the courts have reached inconsistent results when a
user or consumer has sought recovery for emotional harms in strict

products liability cases. ^^^ In fact, only relatively recently have courts

recognized a cause of action for the negligent infliction of emotional

distress; and some jurisdictions still stringently hmit such a claim. ^^^ In

Rahn v. Gerdts,^^^ the lUinois Appellate Court retained a restrictive
interpretation of the **physical harm" requirement of section 402A and
held that the plaintiffs depression, anxiety and nervousness caused by

emotional distress, unaccompanied by other physical injury, were not

compensable in a strict tort liability action. ^^^

In contrast, in Walters v. Mintec International^^^^ the Third Circuit

Court of Appeals found the evidence of plaintiff's headaches, weakness

under stress, insomnia and nightmares sufficient to satisfy the * 'physical

harm" requirement.^" This inconsistency, when the plaintiff seeking
redress for emotional harm is the actual user or consumer of the defective
product, implies an even greater need for analysis and justification for

recovery of emotional distress or loss of consortium in cases in which

the plaintiff is not the user or consumer. Thus, because the plaintiff in

a suit for loss of consortium is generally not the user or consumer of

the defective product, the courts should not automatically award such

damages without an appropriate analysis of the arguments both for and

against recovery.

work upon it, as in the case of an employee of the ultimate buyer who is making repairs
upon the automobile which he has purchased." Restatement, supra note 46, § 402A

comment 1; see, e.g., Cottom v. McGuire Funeral Serv., Inc., 262 A.2d 807, 809 (D.C.

1970) (person utilizing product for the purpose for which it was made is a user of that
product).

128. There have been many cases dealing with recovery for psychological reactions
to the discovery of foreign objects or substances in food or drink; in these cases the

courts generally allow recovery. See, e.g., Kroger Co. v. Beck, 176 Ind. App. 202, 204-

05, 375 N.E.2d 640, 643 (1978) (hyperdermic needle in steak); Shoshone Coca-Cola BottUng

Co. V. Dolinski, 82 Nev. 439, 441-42, 420 P.2d 855, 857 (1966) (decomposed mouse in

bottled beverage). See generally R. Dickerson, Products Liability and the Food Con-
sumer, 236-37 (1951); Mead, Recovery for Psychic Harm in Strict Products Liability: Has
the Interest in Psychic Equilibrium Come the Final Mile?, 35 Def. L.J. 193, 242-43 (1986).

129. As of 1985, many jurisdictions still required physical impact for recovery of
emotional distress. See, e.g., Rickey v. Chicago Transit Authority, 98 111. 2d 546, 551,

457 N.E.2d 1, 5 (1983); Dziokonski v. Babineau, 375 Mass. 555, 559, 380 N.E.2d 1295,

1297-98 (1978); Bass v. Nooney Co., 646 S.W.2d 765, 771-72 (Mo. 1983) (en banc);

Battalia v. State, 10 N.Y.2d 237, 240, 176 N.E.2d 729, 730, 219 N.Y.S.2d 34, 35-36

(1961).

130. 119 111. App. 3d 781, 455 N.E.2d 807 (1983).

131. Id. at 784-85, 455 N.E.2d at 809.

132. 758 F.2d 73 (3d Cir. 1985).

133. Id. at 78-79.



1989] MANUFACTURER'S LIABILITY 839

2. Bystander Analogy.—Significantly, the plaintiff in a loss of con-
sortium action is generally not a "user or consumer."'^"* Of course, all
jurisdictions extended section 402A to include physically injured by-
standers.*^^ Yet a strict products liability "bystander" is a "non-user"

of the product. Thus, allowing bystander recovery is in conflict with

the black letter of section 402A.*^^ The courts therefore made a policy
determination that a bystander deserves the same protection as the

consumer. In Elmore v. American Motors Corp.,^^^ the court noted that

privity had no place in strict products liability and that bystanders should

recover for physical injuries. *^^ The court further noted that a bystander

might need even more protection than the user since he generally has

no knowledge of the product or its warnings. •^^

Accordingly, a relevant issue in an analysis of whether loss of

consortium is a valid recovery under strict products liability is whether

the loss of consortium plaintiff is sufficiently akin to a bystander to

reap the benefits of bystander status. Generally, a requisite for classi-

fication as a bystander is close proximity to the product user. The

bystander is either physically injured in some way by the product or,
in the case of an emotionally injured bystander, is an actual witness to

the user's tragic injury. In contrast, such a requirement is not essential

to the loss of consortium plaintiff. Further, in neghgence cases, courts

have adopted various tests to determine whether a bystander could recover

for emotional distress.

For example, in the leading case of Dillon v. Legg,^"^^ recovery

depended on whether the plaintiff (1) was in physical proximity to the

scene of the accident, (2) had a contemporaneous sensory perception of

the accident, and (3) had a close familial relationship with the physically

injured party.*"*' Yet the loss of consortium plaintiff can generally satisfy

134. See supra note 127.

135. Bystander recovery was first permitted in Elmore v. American Motors Corp.,

70 Cal. 2d 578, 451 P.2d 84, 75 Cal. Rptr. 652 (1969). The court in Elmore noted that
privity has no place in strict products UabiUty and bystanders may even need more protection
than the user or consumer. See also Caruth v. Mariani, 11 Ariz. App. 188, 463 P.2d 83

(1970); Mitchell v. Miller, 26 Conn. Supp. 142, 214 A.2d 694 (1965); Sills v. Massey -

Ferguson, Inc., 296 F. Supp. 776 (N.D. Ind. 1969); Lamendola v. Mizell, 115 N.J. Super.

514, 280 A.2d 241 (1971); Darryl v. Ford Motor Co., 440 S.W.2d 630 (Tex. 1969).
136. A caveat to § 402A states: "The Institute expresses no opinion as to whether

the rules stated in this Section may not apply (1) to harm to persons other than users
or consumers . . . ." Restatement, supra note 46, § 402A caveat (1).

137. 70 Cal. 2d 578, 451 P.2d 84, 75 Cal. Rptr. 652 (1969).

138. Id. at , 451 P.2d at 88-89, 75 Cal. Rptr. at 656.

139. Id. at , 451 P.2d at 89, 75 Cal. Rptr. at 657.

140. 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968).

141. Id. at 739-41, 441 P.2d at 919-21, 69 Cal. Rptr. at 79-81.



840 INDIANA LAW REVIEW [Vol. 22:3

only the requirement of a close familial relationship. Thus, it is reasonable

to assert that the loss of consortium plaintiff is not sufficiently similar

to the bystander to gain analogous treatment. However, even if that

status were to be conceded, loss of consortium recovery under section

402A is still debatable because the courts have experienced difficulty
extending the rationales permitting recovery for the physically injured

bystander in strict products liability cases to the emotionally injured

bystander.

California was the first jurisdiction to consider whether a bystander

suffering emotional harm as a result of an injury to a third party could
recover under a strict products Hability theory. ^"^^ In Park v. Standard

Chemical Way Co.,'"^^ the plainfiff's husband was injured when a con-
tainer of drain cleaner exploded causing severe burns on his arms, torso

and legs. The plaintiff, who returned from work two and a half hours
after the explosion and found her husband permanently scarred, alleged

severe emotional distress and anxiety. •'^^ The court recognized the hus-

band's action for his injuries based on a theory of strict tort liability, ^"^^

but rejected the wife's claim for emotional distress, also based on strict

liability. ^"^ The court noted that Dillon v. Legg did not apply because

the plaintiff did not allege the defendant's negligence and because she

was not within the zone of danger at the time of the accident.
^"^"^

However, the Court of Appeals for the First District of California

ruled otherwise in Shepard v. Superior Court. ^"^^ In Shepard, a family

was riding in its automobile. Another car hit the vehicle, the rear door

opened due to a defective locking mechanism, and the daughter fell out

and was killed when struck by an oncoming car. The parents and brother
brought a strict products liability action against the manufacturer of the

car to recover for their emotional harm.*"^^ This court applied the Dillon

test, labelled the plaintiffs Dillon-type bystanders and allowed recovery

for their emotional distress in a strict products hability case.^^° The court

noted that it would make no sense to permit recovery against a negligent
driver, as in Dillon, while denying recovery from a manufacturer re-

sponsible for a defective product. ^^^ The court thus based its decision

upon a policy rationale.

142. See Park v. Standard Chem Way Co., 60 Cal. App. 3d 47, 50, 131 Cal. Rptr.
338, 339 (1976); see also Mead, supra note 128, at 248-259.

143. 60 Cal. App. 3d 47, 131 Cal. Rptr. 338 (1976).

144. Id. at 49, 131 Cal. Rptr. at 339.

145. Id. at 50, 131 Cal. Rptr. at 339.

146. Id.

147. Id.

148. 76 Cal. App. 3d 16, 142 Cal. Rptr. 612 (1977).
149. Id. at 18, 142 Cal. Rptr. at 613.

150. Id. at , 142 Cal. Rptr. at 615.

151. Id.



1989] MANUFACTURER'S LIABILITY 841

However, the court in Shepard did not allude to the Restatement 's

limitation to physical harm. Further, the Shepard dissent emphasized

that in Dillon there was a focus on the defendant's fault, and aptly

noted that the policies underlying strict products liability, in which the

manufacturer's culpability is not a necessary ingredient, would seem to

preclude recovery.^"

California again faced this issue in Kately v. WilkinsonJ^^ In Kately,

the plaintiff owner of a speed boat struck and killed a family friend

who was water skiing because a defect in the boat caused the steering
mechanism to malfunction. The court in Kately reHed on Shepard to
find that a plaintiff could recover for emotional distress in a products

Hability case.^^"^ However, this plaintiff could not recover under the Dillon

test, and the court therefore utilized a test based upon the directness
of the injury. ^^^ The court wanted to avoid bystander limitations and
permit recovery for policy reasons.

New York has also considered recovery for emotional harm based
on strict products liability. In Vaccaro v. Squibb Corp.,^^^ the plaintiffs

were parents of a child born with severe defects allegedly caused by an

anti-miscarriage drug administered to the mother during her pregnancy.

The Appellate Division, distinguishing between the mother as a user of
the drug and the father as a bystander, allowed the mother's claim but

dismissed the father's because bystanders may not recover for emotional
harm in New York.'^^ However, the Court of Appeals, focusing on the
mother as a bystander suffering through concern for her deformed child,

dismissed the mother's cause of action. ^^^

The Illinois Court of Appeals also expressly stated that bystander
recovery for emotional distress was not compensable in strict products

liability actions in Woodhill v. Parke Davis & Co.'^^ In Woodhill, the

152. Id. at , 142 Gal. Rptr. at 618 (Kane, J., dissenting).

153. 148 Cal. App. 3d 576, 195 Cal. Rptr. 902 (1983).
154. Id. at , 195 Cal. Rptr. at 908.

155. Id. The court in Kately used a test developed in Molten v. Kaiser Found.
Hosps., 27 Cal. 3d 916, 616 P.2d 813, 167 Cal. Rptr. 831 (1980) (if the injury was direct,

the three prong test of Dillon was not controlling).

156. 71 A.D. 2d 270, 422 N.Y.S.2d 679 (1979), rev'd, 52 N.Y.2d 809, 418 N.E.2d

386, 436 N.Y.S.2d 871 (1980).

157. Id. at 277-78, 422 N.Y.S.2d at 683-84. (Jobin v. Grossman, 24 N.Y.2d 609,
611, 249 N.E.2d 419, 419-20, 301 N.Y.S.2d 554, 555 (1969), had previously established

that a bystander may not recover for emotional harm caused by witnessing an accident
that causes severe physical injury to a third person).

158. Vaccaro, 52 N.Y.2d at 812, 418 N.E.2d at 387, 436 N.Y.S.2d at 872 (1980)
(Fuchsberg, J., dissenting).

159. 58 111. App. 3d 349, 374 N.E.2d 683 (1978), affd, 79 111. 2d 26, 402 N.E.2d
194 (1980).



842 INDIANA LAW REVIEW [Vol. 22:3

mother of a child born with brain damage claimed emotional harm
allegedly caused by the administration of pitocin, a drug used to induce

labor. The court dismissed the action and, in dictum, stated that because

section 402A expressly limits recovery to cases involving '* physical harm,"
the Restatement did not intend to provide a strict liability action for

mental anguish or emotional harm.^^°

Thus, even if the loss of consortium plaintiff could be labeled as

an emotionally injured bystander, this alone would not validate recovery

under section 402A. Further, the fact that the courts are struggling with

the issue of recovery for an emotionally injured bystander is significant.

Bystander recovery is rendered dependent on various tests and limitations

to appropriately dehneate the extent of a tortfeasor's responsibility to

a plaintiff other than the primary victim. Yet a loss of consortium

plaintiff is generally even more remote than a bystander, '^^ and liability

should thus be similarly circumscribed. However, the courts in general

have failed to conduct the analysis of loss of consortium necessary for

a proper delimitation of the manufacturer's responsibility under a strict

tort Hability theory.

3. Examples of Inadequate Judicial Analysis.—As previously noted,
the Illinois courts do not permit recovery for emotionally injured by-

standers under a strict products Hability theory. ^^^ Yet recovery for loss

of consortium in section 402A actions is permitted.'" In Hammond v.
North American Asbestos Corp.,^^ the wife of an asbestos worker who
contracted asbestosis brought a strict products liability action against a

manufacturer for loss of consortium. '^^ The loss of consortium claim

was dependent upon a "tortious" injury and the court thus conducted

a lengthy analysis of whether the husband's injury properly met the

requirements of a strict tort hability cause of action. '^^ However, once

that initial determination was affirmatively answered, the court only

briefly questioned the vaHdity of the wife's claim for loss of consortium

in light of a statute of limitations problem. '^^ Thus, the court presumed

that loss of consortium was valid under section 402A, notwithstanding

its prior holding in Woodhill v. Parke Davis & Co.^^^ which expressly

160. Id. at , 374 N.E.2d at 688.

161. See infra notes 179-83 and accompanying text.

162. See supra notes 159-60 and accompanying text.

163. See Hammond v. North Am. Asbestos Corp., 97 111. 2d 195, 454 N.E.2d 210
(1983).

164. Id.

165. Id. at , 454 N.E.2d at 213.

166. Id. at , 454 N.E.2d at 215-18.

167. Id. at , 454 N.E.2d at 218.

168. 58 111. App. 3d 349, 374 N.E.2d 683 (1978), affd, 79 111. 2d 26, 402 N.E.2d

194 (1980). See supra notes 159-60 and accompanying text.



1989] MANUFACTURER'S LIABILITY 843

limited recovery under section 402A to '^physical harm." Interestingly,

an Illinois court very recently denied a claim for loss of filial consortium

in a strict products liability case in which the concurring opinion, noting

that Woodhill should be controlling, emphasized that section 402A limits
recovery to ** physical harm."'^^

Also, in Park v. Standard Chemical Co.,^''^ discussed above as denying

recovery to an emotionally injured bystander in strict products liability

actions,*^* the plaintiff alleged a "partial loss of consortium" cause of

action. '^2 The court denied this claim merely because recovery for loss

of consortium required a complete loss for a definite period of time,

or for a non-determinable period of time.^^^ Therefore, although the

court did not permit recovery as an emotionally injured bystander, it

would have allowed the loss of consortium cause of action had it been

properly pled. The concurring opinion would have gone further and

denied the loss of consortium claim as noncompensable within strict

products liability. '^"^ Noting that the manufacturer's liability is premised

upon a social policy, the concurring opinion stated that the manufacturer

should not be subject to damages of unknown and unUmited scope. '^^

This was the only opinion the author discovered which even questioned

the validity of loss of consortium under a theory of strict tort liability.

The inconsistencies and arbitrary delimiting devices highlighted by

the foregoing cases indicate the complex considerations the judiciary

faces when evaluating claims for intangible damages in strict products
Hability cases. There must be a proper balance between the need for

adequate recovery and the principle that the manufacturer is not an

insurer of the product. '^^ Because the judiciary must strive to maintain

logical Hmits on a tortfeasor's responsibility, the relational loss of con-

sortium claim within the context of liability without fault should be the

subject of thorough analysis.

D. Economic Considerations

As a matter of judicial policy, the courts could reasonably preclude
the extension of the manufacturer's strict Hability to areas where, as

169. See Dralle v. Ruder, 124 111. 2d 61, 529 N.E.2d 209 (1988).

170. 60 Cal. App. 3d 47, 131 Cal. Rptr. 338 (1976).
171. See supra notes 143-47 and accompanying text.

172. Park, 60 Cal. App. 3d at , 131 Cal. Rptr. at 339 (allegation 9).
173. Id. at , 131 Cal. Rptr. at 340 (loss of consortium was not to be confused

with the inevitable physical, mental and emotional damage normally suffered by one spouse
when the other has been wrongfully injured).

174. Id. at 51, 131 Cal. Rptr. at 340 (Compton, J., concurring).

175. Id.

176. Shepard v. Superior Court, 76 Cal. App. 3d 16, 29, 142 Cal. Rptr. 612, 620

(1977) (Kane, J., dissenting); see also Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d

841, 862 (5th Cir. 1967).



844 INDIANA LAW REVIEW [Vol. 22:3

here, the injury is to a relationship and the damages are intangible and

speculative. '*The loss of companionship, emotional support, love, fe-

licity, and sexual relations are real injuries. "'^^ Yet the Uability is sec-

ondary.'^^ The loss of consortium plaintiff does not bear the primary

impact of the defendant's act; rather, the plaintiff's relationship to the

primary victim is diminished as a consequence.'^^ Thus, loss of consortium

may be regarded as a *' secondary layer of tort liability superimposed
upon the defendant's Uability to the primary victim. "'^^ Yet it is not
true in the law of torts that all those who predictably suffer loss as a
consequence of the tortious act will be compensated.'^' Rather, it is for

the judiciary to carefully demarcate the Une of liabihty.

Generally, the degree of liability is dependent upon the degree of
culpability. Thus, because strict tort liability is not premised upon cul-
pability,'^^ the scope of the manufacturer's liability should arguably be

less in a strict products liability action than in a negligence action. Yet

determining the appropriate diminution of the manufacturer's Hability

must involve a dehcate balancing of interests. A judicial analysis and
assessment of the relevant policies in light of society's current concerns

about the overextension of the strict tort liability theory is required.

The question must be whether the liability should encompass a relational

and intangible injury such as loss of consortium.

The underlying purpose of the manufacturer's strict Hability in tort

should be a primary consideration. The legal theory was a judicial

response to the increasing number of injuries caused by defective products
and the corresponding difficulty of proving the negligence of a remote

manufacturer.'^^ The relaxation of the fault requirement was justified

by strong policy considerations.'^"* However, it does not follow that those

177. Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382, 400, 525 P.2d 669,

, 115 Cal. Rptr. 765, 776 (1974).

178. Sizemore v. Smock, 430 Mich. 283, 294, 422 N.W.2d 666, 671 (1988).
179. Berger v. Weber, 411 Mich. 1, , 303 N.W.2d 424, 435 (1979) (Levin, J.,

dissenting).

180. Id.

181. See Sizemore, 430 Mich, at 292-93, 422 N.W.2d at 671 (the general rule in
tort law is that a tortfeasor's liability only extends to an obligation to compensate the

person directly injured); Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 652

P.2d 318, 333 (1982) (Tanzer, J., concurring) (court was hesitant to create an entitlement

that is so unpredictable, formless and limitless). Accord Deloach v. Companhia de Nav-

egacao Lloyd Brasileiro, 782 F.2d 438, 441 (3d Cir. 1986) (loss of consortium is somewhat

an anomaly in the law of tort).

182. See Restatement, supra note 46, § 402A comments a and m; see also Shepard

V. Superior Court, 76 Cal. App. 3d 16, 26, 142 Cal Rptr. 612, 618 (1977) (Kane, J.,

dissenting).

183. See supra notes 33-35 and accompanying text.

184. See supra notes 37-43 and accompanying text.



1989] MANUFACTURER'S LIABILITY 845

rationales adequately support the imposition of all the recoveries available

under a negligence theory upon a manufacturer in a strict tort liability

action. As a result, the vaHdity of loss of consortium recovery under

a negligence theory is not sufficient justification for the same recovery

under a strict tort Habihty theory.

In addition, the burden of payment of awards for loss of consortium

must realistically be borne by the public generally through increased

insurance premiums or, otherwise, in the enhanced danger that accrues

from the greater number of people or companies choosing to go without

any insurance. ^^^ As one court aptly noted:

There is a limit to the range of injuries and the dollar

amount of recovery which can be spread across society through

the interaction of the tort litigation and insurance systems. In-

creasing the load on the reparation system by recognizing causes

of action in secondary tort victims in addition to the primary

victim's action must increase insurance premiums, decrease par-

ticipation in the system by marginal insureds, and perhaps de-

crease the amount that an insurer will willingly pay to the primary

victim, thereby increasing litigation. ^^^

Therefore, the inadequacy of monetary damages to make whole the loss
suffered, ^^"^ considered in light of the social costs of paying such awards,

constitutes strong reason for denying the loss of consortium recovery

in section 402A actions.
Moreover, it must be emphasized that section 402A was not intended

to be an exclusive remedy. '^^ The drafters of section 402A intended to
impose a '* special" Hability upon the manufacturer or seller. ^^^ Other
sections within Chapter 14 of the Restatement, in which section 402A
appears, impose liability for negligence upon suppliers of chattels. For

example, section 388 deals with chattels known to be dangerous for
intended use;'^^ section 395 imposes liability for the negligent manufacture

of goods dangerous unless carefully made;'^' and section 398 addresses

185. Borer v. American Airlines, Inc., 19 Cal. 3d 441, 447, 563 P.2d 858,

, 138 Cal. Rptr 302, 306 (1977).

186. Berger v. Weber, 411 Mich 1, , 303 N.W.2d 424, 438 (1981) (Levin, J.,
dissenting).

187. Borer, 19 Cal. 3d at 447, 563 P.2d at , 138 Cal. Rptr. at 306 (1977).

But cf. Ueland v. Reynolds Metal Co., 103 Wash. 2d 131, 691 P.2d 190, 194 (1984).
188. See Restatement, supra note 46, § 402A comment a.
189. The title of § 402A is: Special Liability of Seller of Product for Physical Harm

to User or Consumer. See Restatement, supra note 46, § 402A.

190. See Restatement (Second) of Torts § 388 (1977).
191. See id. 395.



846 INDIANA LAW REVIEW [Vol. 22:3

the manufacture of goods made under a dangerous plan or design. '^^

Each of these negligence sections recognizes the non-privity rule of

MacPherson,^^^ yet the basis of each is clearly fault.

Thus, precluding loss of consortium damages in strict products li-

ability cases would not necessarily prevent redress of the legal wrong.

It would merely require the loss of consortium plaintiff to be able to

allege a different cause of action against the manufacturer defendant;

and this would not generally affect recovery. An economic analysis of
products liability law by Posner and Landes indicated that an efficient

solution is just as likely to be reached under negligence as strict liability. ^^^

Further, even Prosser noted that there "is not one case in a hundred

in which strict products liability would result in recovery where negligence

does not. "195

Thus, a judicial analysis should consider the relational nature of the

loss of consortium cause of action when balancing against the social
ramifications and the fact that alternative theories are available for

recovery. Arguably, there are now sufficient countervailing policies to
preclude the claim within a strict tort Hability action.

IV. Conclusion

A perpetual challenge for the law is to limit redress for legal wrongs
to a controllable degree. '^^ This is especially true when the liability is
the result of policy determinations and not premised upon the actor's

culpable conduct. Yet the judiciary has not sufficiently met that challenge

in the area of loss of consortium recovery in strict products liability

actions against manufacturers and sellers.

The pronouncement in section 693 of the Restatement (Second) of

Torts that loss of consortium is within the scope of the manufacturer's

responsibility is not adequately supported by case law or detailed judicial

analysis. 19^ In addition, because the express provisions of section 402A

192. See id. 398.

193. See MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916).
194. Landes & Posner, supra note 88, at 541. Yet the economic argument for strict

products liability to physically injured bystanders is stronger than the argument for strict

liability to people in the chain of title. Id. at 551; see also Posner, Strict Liability: A
Comment, 2 J. Legal Stud. 205, 207 (1973).

195. Prosser, Assault Upon the Citadel, supra note 3, at 1114.
196. An often quoted opinion noted:
Every injury has ramifying consequences, like the ripplings of the waters, without

end. The problem for the law is to limit the legal consequences of wrongs to

a controllable degree.

Tobin V. Grossman, 24 N.Y.2d 609, 619, 249 N.E.2d 419, 424, 301 N.Y.S.2d 554, 561

(1969).

197. See supra notes 90-118 and accompanying text.



I

1989] MANUFACTURER'S LIABILITY 847

proscribe recovery to a plaintiff without physical injury, '^^ it is reasonable

to assert that recovery for a relational injury such as loss of consortium

was not considered appropriate. Moreover, recovery for loss of con-

sortium is not vahdated even if the plaintiff could be deemed analogous

to a products liability bystander. ^^^ Yet the courts have consistently

permitted the loss of consortium claim under a strict tort theory.

Again, in determining the parameters of the manufacturer's strict

tort Uability there must be a proper balance between the need for adequate

recovery and the survival of a viable enterprise.^^ At the same time,

there must be a recognition that the risk of harm from the loss of a
loved one is pervasive. As one court noted, this is a risk of living and
bearing children. ^^^ Thus, it is a risk that individuals must partially

assume. Considering the fact that loss of consortium damages would

continue to be compensable in products liability actions based on neg-

ligence or breach of warranty theories,^^^ the preclusion of the cause of

action under a strict tort liability theory would not be unreasonable.

Accordingly, the time is appropriate for a judicial examination of loss

of consortium recovery in a strict products liability action under section

402A of the Restatement (Second) of Torts.

Karen A. Jordan

198. See supra notes 119-33 and accompanying text.

199. See supra notes 134-60 and accompanying text.

200. See, e.g., Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841, 862 (5th Cir.

1967).

201. See Tobin, 24 N.Y.2d at 619, 249 N.E.2d at 424, 301 N.Y.S.2d at 562.

202. See supra notes 188-95 and accompanying text.