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

Witt & Tani, TCPI 9. Liability without Fault?
common law bar on actions for the infliction of negligent emotional distress with a reasonable
foreseeability standard).
But other observers contend that Cardozo’s opinion does not substitute what Holmes
called “the featureless generality” of the reasonableness standard for the old crystal clarity of the
privity rule. In this latter view, the MacPherson case aims to craft a new approach to the duty of
the product manufacturer, one that does not abandon Winterbottom’s effort to be attentive to the
specific moral obligations arising out of the particular kind of relationship at issue in products
cases:
For Cardozo . . . the resolution . . . turned on the duty issue . . . [that] itself had
meaning for him apart from the question of liability. Moreover, its meaning did not
concern whether a manufacturer does, or should, have a duty to compensate such a
plaintiff. The questions, according to the court, were whether Buick had a “duty of
vigilance,” whether it bore an “obligation to inspect,” how great was the “need of
caution,” and how “strict[ ]” was the duty to which Buick had to conform its
conduct.
John C. P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. PA. L. REV.
1733, 1813 (1998). The answer to these questions, argue Goldberg and Zipursky, is not reducible
to the kind of public policy functions that modern tort jurists often attribute to open-ended
reasonableness tests.
Many, however, argued that neither of these interpretations of Cardozo’s opinion in
MacPherson went far enough. What was the basis for incursions on the Winterbottom rule?
Presumably the ground for the proliferation of exceptions to the privity rule was a felt sense that
the manufacturer should bear the costs of many of the injuries arising out of the modern consumer
economy. If this was the intuition or policy ground behind the new approach, then why should a
plaintiff in such a case have to show the defendant’s negligence or fault? A California Supreme
Court decision in 1944 extending the res ipsa loquitor doctrine in the products area seemed to
embrace this policy intuition. And one justice, in his concurring opinion, took the idea a step
further:
Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal. 2d 453 (1944)
GIBSON, C.J.
Plaintiff, a waitress in a restaurant, was injured when a bottle of Coca Cola broke in her
hand. . . . This appeal is from a judgment upon a jury verdict in favor of plaintiff.
Defendant’s driver delivered several cases of Coca Cola to the restaurant, placing them on
the floor, one on top of the other, under and behind the counter, where they remained at least
thirty-six hours. Immediately before the accident, plaintiff picked up the top case and set it upon
a near-by ice cream cabinet in front of and about three feet from the refrigerator. She then
proceeded to take the bottles from the case with her right hand, one at a time, and put them into
the refrigerator. Plaintiff testified that after she had placed three bottles in the refrigerator and had
moved the fourth bottle about 18 inches from the case ‘it exploded in my hand.’ The bottle broke
into two jagged pieces and inflicted a deep five-inch cut, severing blood vessels, nerves and
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