Legal Standardization in the New National Culture

• In the 19^th century American courts, following the lead of British courts, tried to protect various institutions deemed essential to society by limiting the right to sue such institutions for damages.   In order to protect the family, spouses, parents and children were prohibited from suing each other; charities were immunized from claims for negligent provision of care; and local governmental units could not be sued for mistakes arising out of their governmental activities.
   
• In the 1940s legal scholars, most notably Professor William Prosser, criticized these immunities as unnecessary because liability insurance had become widely available, thus lawsuit were no longer likely to put these institutions out of business.  Prosser’s calls for change were heeded:  between 1950 and 1970 most state courts, including those of the Midwest, abolished charitable and governmental liabilities.  Few judges disagreed:  the only qualms they expressed were that the legislature, not the courts, should make the change and that it should be made gradually.  Some courts deferred change in order to give legislatures a chance to act, but few acted, and the courts then took law reform into their own hands:  because they had created the immunities, they could abolish them.

Haynes v Presbyterian Hospital Assn. – Iowa, 1950 (45 N.W.2d 151); Parker v Port Huron Hospital – Michigan, 1960 (105 N.W.2d 1); Williams v City of Detroit – Michigan, 1961 (111 N.W.2d 1); Enghauser Manufacturing Co. v Eriksson Engineering Ltd. – Ohio, 1983 (451 N.E.2d 228)

• Haynes and Parker (charitable immunity) and Williams and Enghauser (abolishing municipal immunity) are the leading cases in their states and provide good examples of the way in which Midwestern courts reacted to change.  Ohio’s supreme court was considerably more cautious about change than other Midwestern states:  it abolished traditional immunities later, and over stronger objections, than did its sister courts.   

“[Public policy] is not quiescent but active.  A policy adopted today as being in the public good, unlike the Ten Commandments, is not necessarily an ever enduring thing.  As times and prospectives change, so changes the policy.  … No doubt, at the outset of the theory, the need for charity in the way of treatment of the suffering, was urgent and the general good of society demanded encouragement thereof. … There was little, if any, paternal care granted by the state.  The granting of immunity from liability for the negligence of their employees may have been proper as a basis for encouraging such charity.”- Justice Norman Hays, in Haynes

Legal Standardization – Adoption of strict product liability:

Spence v. Three Rivers Builders & Masonry Supply, Inc. – Michigan, 1958 (90 N.W.2d 873); Suvada v. White Motor Co. – Illinois, 1965, (210 N.E.2d 182); Lonzrick v. Republic Steel Corp. – Ohio, 1966 (218 N.E.2d 185)

• Under the common law, product makers were liable only to direct buyers – the legal term is “persons in privity” – if their products caused injury or turned out to be defective.  The privity rule worked well in the pre-industrial era, when most products were sold locally; but with the rise of regional and national markets, the rule worked an injustice to consumers who purchased from distributors and other middlemen.

• In the late 19^th and early 20^th centuries, American courts slowly receded from the “privity” rule and extended protection to persons whom manufacturers might “reasonably” anticipate would purchase the products.  But this rule was often hard to apply, and in the 1940s California’s supreme court started moving toward a rule of “strict liability” – that is, manufacturers would be liable to all persons injured by defective and dangerous products regardless of privity.  Professor Prosser took up the cause, and between 1950 and 1970 most American states adopted strict liability. 

• As with the abolition of common-law immunities, few judges dissented from the new rule; those who dissented did so either because they felt change should come from the legislature or because the rule should be modified to place some responsibility on consumers whose careless handling of products contributed to their injuries.  Some legislatures obliged by adopting the new rules; some states, most notably Wisconsin, modified the strict liability rule to limit the amount of recovery available to careless consumers. 

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