Products Liability and the Seller of Used Goods

• Date: 01 September 1978
• Published date: 01 September 1978
• Author: MICHAEL B. METZGER
• DOI: http://doi.org/10.1111/j.1744-1714.1977.tb01434.x

MARKETING LAW DEPARTMENT

PRODUCTS

LIABILITY

AND

THE

SELLER

OF

USED

GOODS

*MICHAEL

B.

METZGER

INTRODUCTION

What one commentator has chosen to label the “explosion” of

products liability law’ began early in the last decade with the

landmark decisions of

Henningsen

u.

Bloomfield

Motors,

Inc.,

and

Greenman

u.

Yuba Power Products,

which established

the liability of the manufacturer of a defective product on the

bases of implied warranty and strict liability in tort, respec-

ti~ely.~ Prior to the advent of

Henningsen

and

Greenman,

the

liability

of

manufacturers or sellers of defective products had

been predicated primarily upon the principles of negligence.5

In the years that followed, the theories

of

implied warranty and

strict liability have experienced concurrent,

if

not parallel, pat-

terns of development, culminating in their widespread accept-

ance as established bases of liability for manufacturers and sellers

of

new

products.

*

Assistant Professor

of

Business

Law, Indiana University Graduate School

of

Business.

I

Carmichael,

Strict Liability in Tort

-

An

Explosion in

Products

Liability Law,

20

DRAKE LAW

REV.

528 (1971).

32 N.J. 358, 161

A.2d

69 (1960).

59

Cal.2d

57, 377

P.2d

897,

27

Cal. Rptr.

697 (1962).

On

products liability,

see generally

Carmichael,

supra

note

1;

Prosser,

The Assault

Upon

the Citadel (Strict Liability

to

the Consumer),

69

YALE

L.J. 1099 (1960);

Prosser,

The Fall

of

the Citadel (Strict Liability

to

the Consumer),

50

MINN.

L.

REV.

791 (1966);

Wade,

Strict Tort Liability

of

Manubcturers,

19

SW.

L.J. 5 (1965).

See generally

W.

PROSSER,

THE

LAW

OF

TORTS

$96,

at 642-44 (4th ed.

1971).

160

1

Vol.

15

I

American

Business

Law

Journal

The shockwaves from the initial “explosion” are still being felt

as, in the normal course of legal development, energetic and inno-

vative lawyers, law professors, and judges seek to apply, refine,

and extend the basic principles

of

products liability. One signifi-

cant development, which has recently, and perhaps predictably,

emerged, is the recognition that the same concepts that dictate

liability for sellers

of

new

goods

may also dictate liability for

sellers of used goods.

This extension

of

liability

is

not surprising in view

of

the sheer

number of transactions involving used goods. The vast majority

of cases in this area involve used motor vehicles. This is

so

for

several reasons. First, the volume of such sales is prodigious.’

Secondly, their relatively high price encourages suit by disap-

pointed purchasers.R Finally, defective used ‘motor vehicles pos-

sess a great potential

for

producing serious physical injuries.

Al-

though this article focuses on the sales

of

used motor vehicles,

there is no reason to suppose that the same legal principles will

not ultimately enjoy application

to

other types of used goods.

Most of the attention that has been focused upon this develop-

ing area

of

liability has been directed at those cases predicating

or

denying liability upon a strict liability in tort baskg Just as

”

The recognition

of

implied warranty theory and strict liability was given impetus and

direction by their respective embodiment in the Uniform Commercial Code

(442-314

through

2-318)

and the

Restatement (Second)

of

Torts

4402A

(1965).

’

“It has been informally estimated that,

for

every new car purchased in this country,

five

are traded used.” Turner v. International Harvester

Co.,

133

N.J. Super.

277, 295,

336

A.2d

62, 72 (1975),

citing

“King

of

the Iron Merchants,”

N.Y. Times Magazine, Mar.

2, 1975,

at

33.

”

This factor is likely to become increasingly prominent

as

the cost of used vehicles

increases as a result

of

the ever-increasing cost

of

new vehicles, the latter factor

also

furnishing incentive for an even greater volume of dealing in used vehicles

as

more buyers

either buy used vehicles instead

of

new

or

elect to maintain vehicles that might have been

scrapped in earlier, more economically propitious times.

’

See generally

Comment,

Products Liability: Seller

of

Used Product With Safety

De-

fect May Re Held Strictly Liable in Tort fur Personal Injuries. “Turner u. Internal Har-

vester Company”

7

Rw.-CAM. L.J.

405 (1976);

Comment,

Strict Products Liability for

Iked Car Dealers,

63

KY.

L.J.

826

(1975);

Garlick,

“Cornelius

u.

Bay City

Motors,

fnc.”;

Strict

Liability and

the

C!sed Car Dealer,

8

WILLIAMETTE

L.J.

94 (1972);

Note,

Strict

Liability in Tort Applied to Seller

of

Used Automobile,

42

TENN.

L.

REV.

426 (1975);

Note,

Torts

-

“Peterson

c

Lou

Bachrodt Chevrolet

Co.,

”

Suit against Used Car

Dealer

Based

on Strict Liability Dismissed

for

Failure to State

a

Cause

of

Action,

7

LOY.

CHI.

L.J.

159

(1976);

Note,

Torts

-

Strict Liability

-

Applied to Used Goods Purchased Under

“as

is”

Ilisc/aimers: “Turner

u.

International Harvester

Co.

”,

29

RUTGERS

L.

REV.

210 (1975).