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

Witt & Tani, TCPI 9. Liability without Fault?
recently suggested one answer: that strict liability torts involve a “distinctive wrong,” namely, the
wrong of “harming-without-repairing.” Gregory C. Keating, Strict Liability Wrongs, in
PHILOSOPHICAL FOUNDATIONS OF THE LAW OF TORTS 292 (2014); see also Jules L. Coleman, Some
Reflections on Richard Brooks’s “Efficient Performance Hypothesis,” 116 YALE L.J. POCKET
PART 416 (2007), https://perma.cc/T9DT-57GX (arguing that strict liability falls in the category
of tort liability in which the relevant wrong arises not merely out of injuring but out of injuring
without providing compensation).
John Goldberg and Benjamin Zipursky justify the modern doctrine of strict liability by
arguing that sometimes we simply owe duties to refrain from injuring others. In this view, a
defendant acts wrongly when she fails to live up to her obligation not to injure. John C.P.
Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 TEX. L. REV. 917, 918-19 (2010).
5. The Second Restatement Revolution. Torts scholar William Prosser at the University of
California, Berkeley called cases like Henningsen and Greenman an “assault on the citadel” of
privity and negligence in products cases. William L. Prosser, The Assault Upon the Citadel, 69
YALE L.J. 1099, 1124-34 (1960). Prosser himself led the charge forward in 1965, when the
American Law Institute published the Second Restatement of the law of torts—a restatement for
which Prosser was the reporter. In section 402A, the Restatement set out a new account of the
law of a seller’s liability for physical injuries to a user or consumer. Consider the next case, in
which Ohio, like many states around the country in the 1960s and 1970s, adopted the Restatement
approach.
Pay special attention to the Restatement section (Section 402A) set out by the court in
footnote 2.
Temple v. Wean United, Inc., 364 N.E.2d 267 (Ohio 1977)
CELEBREZZE, J.
On January 25, 1972, appellant, Beverly A. Temple, was operating a Warco 75 ton power
punch press in the course of her employment at Superior Metal Products, Inc. (Superior). As Mrs.
Temple placed an aluminum extrusion into the back die of the press, an unknown number of
extrusions fell from the bolster plate, in front of her, onto the dual operating buttons, causing the
press to close on her arms. As a result, Mrs. Temple’s hands and forearms were crushed,
requiring amputation of both arms just below the elbow.
. . . The press was manufactured and sold in 1954 by Federal Machine & Welder
Company, now Wean United, Inc. (Wean), to a division of the General Motors Corporation (G.
M.). At the time of manufacture two hand-operated “run” buttons were mounted on the uprights
of the press, at shoulder level. In July of 1971, the press was sold by G. M. to Turner Industries,
and Turner immediately sold the press to Temple’s employer.
Upon receipt of the press, Superior personnel modified the operating control circuits by
replacing the single clutch valve with a safer dual valve, and by replacing the original rotary
switch. In addition, Superior installed new operating buttons which were manufactured by the
Square D Company (Square D). Pursuant to a standard company policy, Superior’s engineers
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