Mitosis v. Honest Sam's Fission & Fusion, LTD. Brief for Respondent

    IN THE

Supreme Court of tfje ii>tate of 
plackacre

N o v e m ber  T e r m , 1964 

No. 13

MIKE MITOSIS,
R esponden t,

against

HONEST SAM’S FISSION & FUSION, LTD. and 
NU-KITCHENS INCORPORATED,

Appellants.

BRIEF FOR RESPONDENT

R o bert  Be l t o n  
A l d e n  T. B r y a n  
St e p h e n  M. K ass

A ttorn eys f o r  R esponden t

B o sto n  U n iv e r sit y  Sc h o o l  o f  L aw



I N D E X

PAGE
Q u e stio n s  Pr ese n ted  .......................................................... 1

St a t u t e  In v o lv e d  .................................................................  2

St a t e m e n t  ............................................................................... 3

Su m m a r y  of A r g u m e n t .....................................................  4

A r g u m e n t :

I. The notice requirement of the due process clause of 
the Fourteenth Amendment to the United States 
Constitution was satisfied in this c ase ...................... 5

II. Personal jurisdiction over the defendants was ob­
tained in conformity with the due process require­
ments of the Fourteenth Amendment to the United 
States Constitution......................................................... 7

A. For a state to assert jurisdiction over a foreign
corporation, due process requires only that the 
defendant have certain "minimum contacts” 
with the forum state so that the assertion of 
jurisdiction would not violate "traditional no­
tions of fair play and substantial justice.” . . .  7

B. This court should follow the trend of defining
"minimum contacts” lib era lly .............................  8

C. The tortious commercial activity of the defen­
dants constitutes a sufficient nexus with the 
State of Blackacre so that the courts of this State 
may constitutionally hold them amenable to 
personal jurisdiction................................................ 9

III. The acts of the defendants constitute sufficient con­
tacts with this State so as to render them amenable 
to the exercise of personal jurisdiction under the 
statutory provisions of Section 711 of the Blackacre 
Code of Civil Procedure...............................................  12



11

A. Section 711, Blackacre Code of Civil Procedure,
is complied with if the defendants had sufficient 
''minimum contacts” with this S ta te ................ 12

B. Defendants, although foreign corporations, are
nonetheless "non-domiciliaries” within the 
meaning of Section 7 1 1 ......................................... 13

C. The defendants, by soliciting through advertis­
ing and by selling products for consumption in 
Blackacre, "transacted business” within the 
meaning of Blackacre Code of Civil Procedure, 
Section 711 ...............................................................  14

D. The fact that defendants committed a "tor­
tious act” in the State of Blackacre, under Sub­
section 711 (a) (2 ), affords this court a further 
basis on which to sustain the exercise of personal 
jurisdiction, even though the conduct giving 
rise to the injury may not have occurred in 
B lackacre....................................................................  14

IV. The manufacturer or retailer of a defective product 
should be held strictly liable to any person injured 
while using the product for its intended purpose, 
whether or not there is privity of co n trac t...........  16

A. The present nature of modern commercial en­
terprise dictates that negligence, or fault, on the 
part of the manufacturer should no longer be
the basis of liability to an injured consumer 16

B. Public policy requires that a manufacturer be 
held strictly liable to any person injured by the
normal use of a defectively manufactured prod­
uct, whether or not there is privity of contract 17

C. Policy reasons in favor of privity free strict lia­
bility to the consumer apply with equal force 
against the seller of a defective product...........  20



I l l

D. Because a breach of an implied warranty caus­
ing personal injury is an action sounding in tort, 
no privity of contract is required ....................... 21

V. Moreover, the plaintiff has alleged sufficient facts 
to hold the defendant-retailer liable under the im­
plied warranties of the Uniform Commercial Code 22

A. The defendant-retailer impliedly warranted un­
der the Uniform Commercial Code, Sections 
2-314 and 2-315, that the Nu-Kitchen would 
be suitable and fit for the purposes for which it 
was designed, manufactured and purchased 22

B. Furthermore, the Uniform Commercial Code,
§2-318, should be extended to include injured 
employees of the purchaser..................................  23

C o n c l u s io n  ............................................................................. 25



IV

C it a t io n s

C ases

PAGE

A nderson v . P en n cra ft T ool Co., 200 F. Supp. 154
(N.D. 111. E.D. 1961) ..................................................  15

Atkins v . Jon es & Langhlin Steel C orp., 258 Minn.
571, 104 N.W.2d 888 (1960) ..................................  13

Bank o f  Atigtista v . Earle, 38 U .S .519(1839) ...........  7
Beck v . Spindler, 256 Minn. 543, 99 N.W .2d 670

(1959) .............................................................................  9,13
B ergn er & Engel B rew in g Co. v . D rey fu s, 172 Mass.

154, 51 N.E. 531 (1898) .............................................  13
B. F. G oodrich  Co. v . H ammond, 269 F.2d 501 ( 10th

Cir. 1959) ......................................................................... 21
B rew ster v . F. C. Russell Co., 78 S.D. 129, 99 N.W.2d

42 (1959) ......................................................................  11
B row n  v . Chapman, 304 F.2d 149 (9th Cir. 1962) 21
Chapman v . B rown , 198 F. Supp. 78 (D. Hawaii

1961)   19,23
Compania, De Astral, S.A. v. B oston Metals Co., 205 

Md. 237, 107 A.2d 3 57 (1954), ce r t , d en ied  348 
U.S. 943 (1955) .............................................................  13

D etro it Fort ~Wayne U Belle Isle R y. v . O sborn, 189
U.S. 383 (1902) ...........................................................  7

D even y  v . R heem  Mf g .  Co., 319 F.2d 234 (2nd Cir.
1963)   19

D oty v . Love, 295 U.S. 64 (1935) ................................ 6
Ehlers v . U.S. H eating U C oolin g Mf g .  C orp., 124

N.W.2d 824 (Minn. 1963) ......................................  16
Escola v . C oca-C ola B ottlin g Co. o f  Fresno, 24 Cal.2d

453, 150 P.2d 436 (1944) ......................................  17,18,19
Fisher G overnor Co. v . Superior C ourt, 53 Cal.2d

222, 1 Cal. Rptr. 1, 347 P.2d 1 (1959) ................ 14
Fornabio v. Swiss Air Transp. Co., 42 Misc.2d 182,

247 N.Y.S.2d 203 (Sup. Ct. 1964) .........................  14



V

G oldberg v . K ollsm an In strum en t Corp., 12 N.Y.2d
432, 191 N.E.2d 81, 240 N.Y.'S.2d 592 (1963) . . .  21, 22 

G oldblatt v . T ow n  o f  H em pstead, 369 U.S. 590
 ̂ (1962) .............................................................................  6

G ordon A rm stron g Co. v . Superior C ourt, 160 Cal.
App.2d 711, 325 P.2d 21 (Dist. Ct. App. 1958) . . 13

G osling v. N ichols, 59 Cal. App.2d 442, 139 P.2d 86
(Dist. Ct. App. 1943) ................................................ 21

Gray v . A merican Radiator & Standard Sanitary
Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961) ___

9, 12, 13, 14, 15
G reenb erg v . Lorenz, 9 N.Y.2d 195, 173 N.E.2d 773,

213 N.Y.S.2d 39 (1961) .............................................  24,25
G reenman v . Yuba P ow er Prods. In c., 59 Cal.2d 57,

27 Cal. Rptr. 697, 377 P.2d 897 (1963) ................ 18,22
Hanson v . Denckla, 3 57 U.S. 235 (1958) .................. 6
H ech t v . M onoghan, 307 N.Y. 461, 121 N.E.2d 421

(1954) .............................................................................  6
H enningsen  v . B loom field  M otors, In c., 32 N.J. 3 58,

161 A.2d 69 (1960) ...........................................  17, 18, 19
H enry R. Jahn & Son v . Superior C ourt, 49 Cal.2d

855, 323 P.2d 437 (1958) ....................................... 9 ,11,13
Hess v . Pawalski, 247 U.S. 3 52 (1927) .........................  11
In R e Miller, 172 F. Supp. 208 (D. Kan. 1959) ......... 10
In terna tiona l Shoe Co. v . W ashington, 326 U.S. 310

(1945) ...............................................................  6, 7, 8, 11, 14
Ja co b  E. D eck er & Sons v . Capps, 139 Tex. 609, 164

S.W.2d 828 (1942) ......................................................  18, 19
K in g v. D ouglas A ircra ft, In c., 159 So.2d 108 (Fla.

App. 1963) ......................................................................  19
Latimer v . S/A Industries R eundias F. Matarazzo,

175 F.2d 184 (2ndCir. 1949) , cer t , d en ied  338 U.S.
867 (1949) ......................................................................  12

M acPherson v . Buick M otor Co., 217 N.Y. 382, 111
N.E. 1050 (1916) ......................................................... 16, 17

M cGee v . In ternationa l Lif e Ins. Co., 355 U.S 220
(1957) .............................................................................  6 ,8 ,9



VI

M ullane v . C entra l H anover Bank & T rust Co., 339
U.S. 306 (1950) ...........................................................  6

P enn oyer  v . N eff, 95 U.S. 714 (1878) ......................... 6 ,7
Verkins v . B en gu et Consol. W ining Co., 342 U.S. 437

(1952) .............................................................................  9
R ubino v . Utah C anning Co., 123 Cal. App.2d 18,

266 P.2d 163 (Dist. Ct. App. 1954) ....................... 21
S choln ick  v . N ational Airlines, In c., 219 F.2d 115

(6th Cir. 1955) .............................................................  9
Shepard v . R heem  Mf g .  Co., 249 N.C. 454, 106 S.E.2d

704 (1959) ....................................................................... 9
S inger v . Walker, 21 App. Div.2d 28 5, 250 N.Y.S.2d

216 (1964) ......................................................................  9,15
S m yth  v . T w in  State Im p rov em en t Corp., 116 Yt.

569, 80 A.2d 664 (1951) ...........................................  9 , 14
State v . A merican-H awaiian  S.S. Co., 29 N.J. Super.

116, 101 A .2d 598 (1953) ...........................................  6
S teele v . D eLeeuw, 40 Misc.2d 807, 244 N.Y.S.2d 97

(Sup. Ct. 1963) .............................................................  14
T atlow  v . Bacon, 107 Kan. 26, 165 Pac. 835 (1917) 6
Thomas v . Leary, 15 App. Div.2d 438, 225 N.Y.S.2d

137 (1962) ......................................................................  24
T raveler ’s H ealth Ass’n. v . Virginia, 339 U.S 643

(1950) ..........................................................................................8
Vandermark v . Ford M otor Co., 61 Cal.2d 245, 37

Cal. Rptr. 896, 391 P.2d 168 (1964) ....................  20,22
W estern Life Indem . Co. v . Rupp,  23 5 U.S. 261

(1914) ...........................................................................  6
W. H. Elliott & Sons v . N uodex Prods. Co., 243 F.2d 

116 (1st Cir. 1957), cer t , d en ied  3 55 U.S. 823
0957) .............................................................................  9,11

W in terb o ttom  v. W right, 10 M. & W. 108, 152 Eng.
Rep. 412 (1842) ...........................................................  23

St a tu te s

42 U.S.C.A §§ 2012-2296 (Supp. 1963) ..................  19
111. Rev. Stat. ch. 110 § 17 (1956) 6,8
Me. Rev. Stat. Ann. c. 112, § 21 (1959) ................... ’ 8



Minn. Stat. § 303.13 (3) (1961) ..................................  9
N.H. Stat. Ann. § 300:11 (1949) ................................ 9
N.Y. Civ. Prac. Law § 302 .............................................  9, 13
N.C. Gen. Stat. § 55-145 (1949) ..................................  9
Vt. Stat. Ann. tit. 12, § 855 (1947) .............................  9
Uniform Commercial Code

Section 2 -3 1 4 ..................................................................  23
Section 2-315 .................................................................. 23
Section 2-318 ..................................................................  24

T reatises a n d  Periodicals 
Ames, H istory o f  Assumpsit, 2 Harv. L. Rev. 1

(1888) .............................................................................  21
Annot. 78 A.L.R.2d 397 (1961) ..................................  10
Briggs, C on tem pora ry  P rob lem s in C on flic t o f  Laics. 

Ju r isd iction  b y  S tatute, Part I, 24 Ohio St. L. J.
223, Part II, 24 Mont. L. Rev. 85 (1963) .............  9

Cavers, Im p rov in g  Financial P ro te c t ion  o f  th e Public 
A gainst th e Hazards o f  N uclear P ow er, 77 Harv.
L. Rev. 644 (1964) ....................................................  11,20

75 Harv. L. R ev. 1431, 1432 (1962) ...........................  12
Kurland, T he Suprem e C ourt, The Due P rocess Clause 

and In  Personam  Ju risd iction  in State C ourts From  
P enn oyer  to  D enckla: A R eview , 25 U. Chi. L.
Rev. 569 (1958) ......................................................... 9

Note, D evelopm en t in Law — S ta te-C ourt Ju r isd ic­
tion , 73 Harv. L. Rev. 909, 919-923 (1960) . . . . 7 , 8

Prosser, The Assault Upon th e C itadel (S tr ic t Liabil­
i t y  to  th e C on sum er), 69 Yale L. J. 1099, 1124 
(I960) .............................................................................  !8

Prosser, Torts 493 (2nded. 1955) ..................................  21
Prosser, Torts 4 (3rd ed. 1964) ......................................  1 j
Restatement, Conflict of Laws (1934)

Section 318 ......................................................................  15
Section 377 ......................................................................  15
Section 379 ......................................................................  12

Stason, Estep & Pierce, Atoms and tJoe Law (1959) 11, 20 
1 Williston, Sales, § 195 (rev. ed. 1948) ....................  21

vii



IN THE

Supreme Court of tfje #>tate of 
placfeacre

N o v e m ber  T e r m , 1964

No. 13

MIKE MITOSIS,
R esponden t,

against

HONEST SAM’S FISSION & FUSION, LTD, and 
NU-KITCHENS INCORPORATED,

Appellants.

BRIEF FOR RESPONDENT

QUESTIONS PRESENTED

1. Whether the defendants can challenge the jurisdiction of 
the court on the ground that the notice requirement of the 
due process clause of the Fourteenth Amendment to the 
United States Constitution was not complied with?

2 . Whether the defendants, who are non-domiciliaries of 
the State of Blackacre, had sufficient "minimum contacts” 
with this State so as to be amenable to the personal juris­
diction of the court?



2

3. Whether the defendants "transacted business” or "com­
mitted a tortious act” within the meaning of Section 711 
of the Blackacre Code of Civil Procedure?

4. Whether the State of Blackacre has chosen to assert per­
sonal jurisdiction over non-domiciliaries to the constitu­
tional limits sanctioned under the "minimum contacts” 
test?

5. Whether the manufacturer and the retailer should be held 
strictly liable in tort when a defective product put into 
circulation in the market subsequently results in personal 
injury to a foreseeable user of the product even though 
there is no privity of contract?

6. Whether an action for breach of an implied warranty is 
a cause of action sounding essentially in tort?

STATUTE INVOLVED

Section 711 of the Blackacre Code of Civil Procedure (R. 
12) provides:

(a) Acts which are the basis of jurisdiction. A court may 
exercise personal jurisdiction over any non-domicili- 
ary, or his executor or administrator, as to a cause of 
action arising from any of the acts enumerated in 
this section, in the same manner as if he were a domi­
ciliary of the state, if, in person or through an agent, 
he:
1. Transacts any business within the state; or
2. Commits a tortious act within the state, except as 

to a cause of action for defamation of character 
arising from the act; or

3. Owns, uses or possesses any real property situated 
within the state.

(b) Effect of appearance. Where personal jurisdiction is 
based solely upon this section, an appearance does not 
confer such jurisdiction with respect to causes of ac­
tion not arising from an act enumerated in this sec­
tion. (Effective date January 1, 1959.)



3

STATEMENT
On May 14, 1964, plaintiff initiated this action for per­

sonal injuries against defendants alleging a breach of an 
implied warranty. Defendants entered a motion to dismiss 
on the grounds of: ( 1) lack of personal jurisdiction and (2 ) 
failure to state a cause of action in that there was no privity 
of warranty (R. 4 ). This appeal comes to the Supreme 
Court of the State of Blackacre from an order of the Superior 
Court, County of Bullduram, denying defendants’ motion 
to dismiss (R. 12) . For purposes of this appeal, the relevant 
facts are not contested by the parties to the action. The facts 
as alleged are based upon the plaintiff’s complaint and the 
parties’ subsequent affidavits as stated in the Transcript of 
Record.

The plaintiff, Mike Mitosis, a resident of the County of 
Bullduram, State of Blackacre, was employed as a short order 
cook at the Atomic Table, a restaurant located in the County 
of Bullduram (R. 1, 2 ) . While using an atomic kitchen unit 
in accordance with the Manual of Operation published by 
defendant-manufacturer, Nu-Kitchens, Inc., a corporation 
existing under the laws of the State of Bliss (R. 1 ), he suf­
fered radioactive sickness as a result of an inadequate radio­
active protection shield, and was rendered sick, sore, lame and 
permanently disabled from continuing his employment (R. 
3 ) 'The kitchen unit, known as a "Nu-Kitchen,” is a complete 
kitchen installation, having as its power source a central 
nuclear power plant (R. 2 ) . The Nu-Kitchen was sold 
f.o.b. plant, to defendant-retailer Honest Sam’s Fission and 
Fusion, Ltd., a corporation existing under the laws of the 
State of Bonanza (R. 1) . Its office and principal place of 
business is in Squaresville, the largest city in the State of 
Bonanza and known to be a prime shopping area for the 
residents of Blackacre (R. 8).

The plaintiff’s employer purchased the Nu-Kitchen from 
the retailer in Squaresville. The unit was transported to the 
plaintiff’s place of employment by an independent trucking 
company and there installed by an independent contractor, 
both hired by the purchaser (R. 6).

Approximately 20% of the total retail business volume in



4

Squaresville is attributable to residents of Blackacre (R. 9 ). 
Furthermore, according to the manufacturer’s annual report, 
approximately 10% of the manufacturer’s total production 
is sold to purchasers in the State of Bonanza, the majority of 
which are purchases for resale (R. 9 ). The retailer partici­
pated in a cooperative advertising plan offered by the manu­
facturer, whereby the manufacturer paid to the retailer a 
twenty-five dollar allowance for each and every Nu-Kitchen 
sold by that store, on the condition that such allowance 
would be applied to local newspaper advertising of the Nu- 
Kitchen (R. 9, 10).

The retailer placed a full page advertisement in virtually 
every issue of the Squaresville W eek ly S entinel and Guardian 
for the past three years, of which twenty-five such advertise­
ments prominently featured the respective year’s model of 
the Nu-Kitchen. The Squaresville W eek ly S en tin el and 
Guardian has a paid circulation of 126,394 as of December 
13, 1963. Of these, 42,139 are known to be subscribers lo­
cated in the State of Blackacre (R. 10).

SUMMARY OF ARGUMENT

In our modern society, commercial transactions frequently 
cross state borders. In addition, our era has been confronted 
with the reality of the production of nuclear powered ma­
chines which have the potential for causing great harm. 
These factors make it imperative that a state be capable of 
asserting jurisdiction over non-domiciliary corporations chan­
nelling such dangerous products into the stream of interstate 
commerce. The Supreme Court has sanctioned the assertion 
of personal jurisdiction over non-domiciliary corporations 
where such corporations had certain "minimum contacts” 
with the forum state. The defendants, who actively solicited 
business from the citizens of Blackacre and who caused an 
inherently dangerous product to be shipped there, should be 
deemed to have sufficient "minimum contacts” with Black­
acre so as to be amenable to personal jurisdiction.

Furthermore, the defendants "transacted business” and 
committed a "tortious act” in the State of Blackacre within 
the meaning of the Blackacre Code of Civil Procedure. In



5

implementing the desirable objective of obtaining personal 
jurisdiction over foreign corporations, the State of Blackacre 
has asserted personal jurisdiction to the furthermost limits 
allowable under the due process clause. Since the defendants’ 
tortious commercial activities, resulting in a personal injury 
within the State of Blackacre, satisfied the "minimum con­
tacts” test required by the due process clause, the statutory 
requirements have been complied with.

Although the due process clause of the Fourteenth Amend­
ment to the United States Constitution requires proper no­
tice, the jurisdiction of the court is not subject to challenge 
on this ground. The Blackacre Code of Civil Procedure 
either expressly or impliedly requires notice. Even if the stat­
ute does not require notice, the defendants, having actually 
received notice, cannot attack the procedure below on this 
ground for the first time on appeal.

A manufacturer or a retailer of a defective product should 
be strictly liable in tort to any person injured as a result of 
using that product for its intended purpose, even though 
there is no privity of contract. Individuals injured by de­
fective products are the persons least able to bear the risk of 
injury. Furthermore, the doctrines of negligence and breach 
of an implied warranty, when limited by a privity require­
ment, are not adequate vehicles for redressing the harm done. 
The manufacturer and the retailer, who are responsible for 
putting defective goods into the stream of commerce, can 
adequately insure against the inevitable losses and spread the 
risk among the public as a cost of doing business. Therefore, 
any foreseeable user who is injured by a defective product 
should be able to hold the manufacturer and retailer strictly 
accountable to him in a cause of action sounding in tort.

ARGUMENT
I.

The notice requirem ent of the due process clause 
of the Fourteenth Amendment to the United States 
Constitution was satisfied in this case.

Personal jurisdiction must be obtained over a non-resident



6

defendant prior to the rendering of a binding in personam 
judgment. Traditionally, this has required two elements: 
( 1) jurisdiction over the non-resident, Hanson v . Denckla, 
3 57 U.S. 235 (1958); M cG ee v . In terna tiona l Lif e Ins. Co., 
3 55 U.S. 220 (1957); In ternationa l Shoe Co. v . W ashington, 
326 U.S. 310 (1945); P en n o y e rv . N eff, 95 U.S. 714 (1878); 
and (2 ) effectively bringing such defendant before the court 
by proper notice, M ullane v . C entral H anover Bank Sf T rust 
Co., 339 U.S. 306 (1950).

The notice requirement should be deemed to have been 
satisfied in this case on any one of three theories. Firstly, it 
is submitted that Section 711 of the Blackacre Code of Civil 
Procedure provides for notice. The lower court stated that 
the Blackacre Statute is similar to the Illinois Statute. 111. 
Rev. Stat. ch. 110 §17 (1956) (R. 13). The Illinois Statute 
provides for personal service on a defendant outside the state. 
Although the record does not reveal that the Blackacre Code 
contains such a section, it is nevertheless logical to assume that 
Blackacre does have a notice provision since the lower court 
deemed the statutes of 'both states to be similar. In addition, 
even if the Blackacre Code does not expressly require notice, 
it is submitted that a notice procedure should be implied. State 
legislatures are presumed to act constitutionally. G oldblatt 
v . T ow n  o f  H em pstead, 569 U.S. 590, 596 (1962). A stat­
ute is not invalid merely because it does not expressly provide 
for notice. Such notice may be implied by the court unless 
the statute expressly dispenses with the necessity of notice. 
T atlow  v . Bacon, 107 Kan. 26, 165 Pac. 83 5 (1917) ; State 
v . A merican-H awaiian  S.S. Co., 29 N.J. Super. 116, 101 
A.2d 598 (1953); H ech t v . M onoghan, 307 N.Y. 461, 121 
N.E.2d 421 (1954).

Secondly, even assuming a rgeundo  that the Blackacre Code 
does not have a notice provision, the fact that the defendants 
did appear, albeit to contest jurisdiction, indicates that actual 
notice was received. Consequently, the defendants had 
ample opportunity in the initial stages of the litigation to 
defend their rights, and therefore, the lack of any statutory 
provision relating to notice did not prejudice the defendants. 
D oty v . Love, 295 U.S. 64, 74 (193 5 ); W estern  Li f e Indem . 
Co. v . Rupp,  23 5 U.S. 261 (1914).



7

Finally, although lack of jurisdiction may be raised at any 
stage of the litigation, lack of notice, not raised below, can­
not be raised for the first time on appeal. D etro it Fort 
W ayne & Belle Isle R y. v . O sborn, 189 U.S. 383, 390-391 
(1902). Therefore, the only jurisdictional issue before this 
court is whether the defendants’ acts were sufficient to come 
within the tenor of Section 711 of the Blackacre Code, and 
if so, whether due process was satisfied.

II.
Personal jurisd iction  over the defendants w a s ob­

tained in conform ity w ith  the due process requ ire­
ments of the Fourteenth Amendment to the United 
States Constitution.

A. For a state to assert jurisd iction  over a foreign 
corporation, due process requires only th a t the defen­
dant have certain  "m inim um  contacts” w ith  the forum  
state so th a t the assertion of jurisd iction  would not 
v io late " trad ition al notions of fa ir  p lay  and substan­
t ia l ju stice .”

Historically, the jurisdiction of courts to enter judgments 
in personam against a non-resident was grounded on d e fa c t o  
power over the defendant. P enn oyer  v. N eff, supra. Ini­
tially, jurisdiction could not be obtained over foreign cor­
porations. Bank o f  A ugusta v . Earle, 38 U.S. 519 (1839). 
As corporate business increased, new concepts, viz. "consent,” 
'doing business” and "presence” under which a state court 

could assert personal jurisdiction over foreign corporations, 
were developed. Note, D evelopm en t in Law—S ta te-C ourt 
Ju r isd iction , 73 Harv. L. Rev. 909, 919-923 (1960).

In terna tiona l Shoe Co. v . 'Washington, supra, has estab­
lished a more modern concept of jurisdiction over foreign 
corporations. According to In terna tiona l Shoe, the exercise 
of jurisdiction by a court is constitutional if the corporation 
has certain "minimum contacts” with the forum state. Id. 
at 316. The quality and nature of the "contacts” are deci­
sive, and must be such that the maintenance of the suit within 
the forum does not offend "traditional notions of fair play 
and substantial justice.” Id. at 317. The Supreme Court in



8

applying the "minimum contacts” test to the facts of In te r ­
national Shoe Co., supra, held that a foreign corporate shoe 
manufacturer, whose only contact with the state was the 
continuous operation of salesmen in the state, was subject to 
the jurisdiction of the Washington Court under a Workman’s 
Compensation Statute. See Note, D evelopm en ts, 73 Harv. 
L. Rev. at 923-932.

The "minimum contacts” test was further clarified in 
T raveler ’s H ealth Ass’n. v . Virginia, 339 U.S. 643 (1950), 
where it was held that a foreign corporation doing a mail 
order insurance business within the state might be sued there. 
The defendant corporation only had claim investigators op­
erating within the state. Its place of incorporation and only 
office was in Nebraska, and in the course of its business, the 
corporation had mailed applications for insurance to persons 
in Virginia. The Supreme Court held that Virginia had 
jurisdiction to entertain an action since the corporation had 
furnished the "minimum contacts” necessary to satisfy the 
requirements of due process.

The limits of due process were further extended to encom­
pass a single transaction of business within the state. In 
M cGee v . In ternationa l Li f e Ins. Co., supra, the defendant 
corporation issued a re-insurance policy on the life of the 
insured, a resident of California. The defendant’s only con­
tact with the state of California was the mailing of the re­
insurance certificate to the insured in California and the re­
ceipt of annual premiums. In upholding the exercise of per­
sonal jurisdiction, the Supreme Court held that California 
had a manifest interest in providing an effective means of 
redress for its residents when insurers refused to pay.

B. This court should follow the trend of defining 
"m inim um  contacts” lib era lly .

Subsequent to In terna tiona l Shoe, many states enacted 
comprehensive statutes in an effort to expand the basis of 
personal jurisdiction over foreign corporations and at the 
same time give effect to In ternationa l Shoe, supra, and M c­
Gee, supra. Many of these statutes are similar or analogous 
to Section 711 of the Blackacre Code of Civil Procedure. 
111. Stat. ch. 110, § 17 (1956); Me. Rev. Stat. Ann. c. 112,



9

§21 (1959); Minn. Stat. §303.13 (3) (1961); N.Y. Civ. 
Prac. Law §302; N.C. Gen. Stat. §5 5-145 (1949). SeeN.H. 
Stat. Ann. §300:11 (1949); Vt. Stat. Ann. tit. 12, §855 
(1947).

The assertion of jurisdiction over foreign corporations un­
der Section 711 of the Blackacre Code of Civil Procedure is 
a question of first impression in this State (R. 12) . In con­
struing this statute, this Court should be guided by the trend 
towards greater liberality adopted by the United States Su­
preme court and other state courts to obtain jurisdiction 
over foreign corporations. M cG ee v . In terna tiona l Li f e  Ins. 
Co., supra; Perkins v . B en gu et Consol. M in ing Co., 342 U.S. 
437 (1952); Sch o ln ick  v . N ational Airlines, In c., 219 F.2d 
115 (6th Cir. 195 5 ); W. H. E lliott & Sons Co. v . N uodex  
Prods. Co., 243 F.2d 116 ( 1st Cir. 1957); ce r t , d en ied  355 
U.S. 823 (1957); H enry R. Jahn & Son v . Superior C ourt, 
49 Cal.2d 855, 323 P.2d 437 (1958); Gray v . A merican Ra­
d ia tor & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 
761 (1961) ; Beck  v . Spindler, 256 Minn. 543, 99 N.W.2d 
670 (1959); S inger v . Walker, 21 App. Div.2d 285, 250 
N.Y.S.2d 216 (1964); Shepard v . R heem s Mf g .  Co., 249 
N.C. 454, 106 S.E.2d 704 (1959); Sm yth  v . T w in  S tate Im ­
p ro v em en t Corp., 116 Vt. 569, 80 A.2d 664 (1951); Briggs, 
C on tem pora ry  P rob lem s in C on flic t o f  Laws. Ju r isd iction  
b y  S tatute, Part I, 24 Ohio St. L. J. 223 (1963); Briggs, C on­
tem pora ry  P rob lem s, Part II, 24 Mont. L. Rev. 85 (1963); 
Kurland, T he Suprem e C ourt, The Due P rocess Clause and 
In Personam  Ju risd iction  in State Cotirts From P enn oyer  to  
D enckla: A R ev iew , 25 U. Chi L. Rev. 569 (1958).

The case of In terna tiona l Shoe clearly left the precise na­
ture of the "contacts” required under due process indefinite. 
The constitutionality of the exercise of jurisdiction in each 
case depends primarily upon an individual analysis of its 
own facts. Id. at 319. It is submitted, as will now be demon­
strated, that this court can, consistent with due process re­
quirements, sustain jurisdiction over the defendants.

C. The tortious commercial activity of the defen­
dants constitutes a sufficient nexus with the State of 
Blackacre so that the courts of this State may consti­
tutionally hold them amenable to personal jurisdiction.



10

The evolution of the "minimum contacts” test has been a 
judicial attempt to implement three basic policies. These 
policy considerations justify the assertion of personal juris­
diction in the instant case.

First of all, our country, although comprised of a multi­
tude of semi-sovereign bodies, is nevertheless, a unified eco­
nomic community. In this highly integrated climate, normal 
intercourse must prevail among the several States. For pur­
poses of commercial discourse, therefore, the states must be 
accorded certain advantages, of which personal jurisdiction 
over foreign corporations is an essential. Annot. 78 A.L.R,2d 
397 (1961).

The facts of the instant case graphically reveal how com­
merce may easily cross state borders, and how the realities of 
modern commercial life dictate the necessity of jurisdiction 
over non-domiciliaries. In the case at bar, the defendant- 
retailer is engaged in the sale of nuclear powered appliances 
in Squaresville, State of Bonanza (R. 1) . It is a well known 
fact, of which this court may take judicial notice, that the 
metropolis of Squaresville is a prime shopping area for a vast 
number of neighboring Blackacre residents (R. 8) ,  thereby 
constituting one metropolitan commercial center of the re­
spective municipalities of the two states. In  R e M iller, 172 
F. Supp. 208, 209 (D. Kan. 1959) . Since 10% of the manu­
facturer’s products is sold to retailers in Bonanza, and 20% 
of the retail business volume of Squaresville is attributable to 
residents of Blackacre (R. 9 ), it is reasonable to assume that 
defendants did an appreciable volume of business with resi­
dents of Blackacre.

Pursuant to a cooperative advertising plan offered by 
defendant-manufacturer, a twenty-five dollar allowance was 
paid to the retailer for each Nu-Kitchen sold, which was to 
be used only for the purpose of local newspaper advertising 
of the manufacturer’s product. The record indicates that 
during the three years this plan was in effect, defendant- 
retailer placed advertisements in virtually every issue of the 
Squaresville W eek ly S entinel & Guardian (R. 10) , and at 
least twenty-five such advertisements prominently featured 
the respective year’s model of the Nu-Kitchen. As one third 
of the subscribers to the newspaper were residents of Black-



11

acre, it is apparent that both defendants participated in ac­
tively soliciting trade from these residents.

It has been recognized, under the In terna tiona l Shoe deci­
sion, that sales solicitation alone can constitute the necessary 
"minimum contacts” to subject a foreign corporation to the 
personal jurisdiction of a state court. H enry R. Jahn  2> Son 
v . Superior C ourt, supra  at 859, 323 P.2d at 440. Solicita­
tion is an integral part of any business activity and often is 
the foundation of a sale. Furthermore, completing the sale 
is often a mere formality once the order has been solicited. 
Every businessman would regard solicitation as an integral 
part of his business. B rew ster v . F. C. Russell Co,, 78 S.D. 
129, 142, 99 N.W.2d 42, 50 (1959). However, the facts 
in the case at bar show more than mere solicitation. The 
sale of the Nu-Kitchen to a resident of Blackacre and the 
resulting injury to the plaintiff are additional "contacts” 
between the defendants and Blackacre.

Courts, on analogous facts, have held the "minimum con­
tacts” required by the due process clause to be satisfied in 
subjecting a non-resident defendant to personal jurisdiction. 
W. H. E lliott & Sons Co. v . N uodex Prod., supra; H enry R. 
Jahn & Sons v . Superior C ourt, supra. In the N uodex  case, 
an action was brought in New Hampshire against a New 
Jersey corporation. The defendant at no time delivered goods 
or sent agents into New Hampshire, though some of its ad­
vertising had reached that state. The court held the defen­
dant was amenable to jurisdiction within the scope of the 
"minimum contacts” test.

Another general policy involved in the exercise of personal 
jurisdiction over foreign defendants is the justified applica­
tion of the state’s police power over dangerous instrumentali­
ties brought into the state. Hess v . Pawalski, 247 U.S. 3 52 
(1927). The Nu-Kitchen involved was powered by a nu­
clear reactor, and because of the unusual dangers involved 
in radiation hazards, certain products, such as containers for 
radioactive materials and reactor fuel elements, have been 
considered "inherently dangerous” articles. See Stason, Estep 
& Pierce, A toms and th e  Law, chs. 4,5 (1959); Cavers, Im ­
p ro v in g  Financial P ro te ct ion  o f  th e P ub lic Against th e Haz­
ards o f  N uclear P ow er, 77 Harv. L. Rev. 644 (1964). A



12

finding by this court that defendants are amenable to the 
personal jurisdiction of the courts of this State for the 
alleged injury to the plaintiff would not offend "traditional 
notions of fair play and substantial justice,” since the defen­
dants knew or should have known this dangerous instrumen­
tality would ultimately jeopardize the citizens of Blackacre,

A third general policy concerns the bringing of suits in 
the forum in which they may be most conveniently litigated. 
The normal rule of conflict of laws is that the law of the 
place of the injury or wrong should apply. Restatement, 
Conflict of Laws §379 (1934). That state, therefore, whose 
law is being applied should also be allowed to assert jurisdic­
tion in order to apply its law. Gray v . A merican Radiator 
& Standard Sanitary Corp., supra. In the instant case, the 
injury occurred in Blackacre, and the witnesses to the injury 
live in Blackacre. Blackacre, therefore, is obviously the most 
convenient forum, and "minimum contacts” have been de­
scribed as essentially the equivalent of a constitutional rule 
of a convenient forum. Latimer v . S/A Industries Reundias 
F. Matarazzo, 175 F.2d 184, 18 5-186 (2nd Cir. 1949), cer t, 
d en ied  338 U.S. 867 (1949) ; see also 75 Harv. L. Rev. 1431, 
1432 (1962).

The nature of the commercial and tortious activities in­
volved in this case, coupled with the fact that Blackacre is 
the most convenient forum in which this matter can be liti­
gated, should lead this court to conclude that defendants had 
reasonably sufficient "minimum contacts” with Blackacre so 
as to be subject to its personal jurisdiction.

III.
The acts of the defendants constitute sufficient con­

tacts w ith  this State so as to render them amenable to 
the exercise of personal jurisd iction  under the s ta tu ­
to ry  provisions of Section 711 of the B lackacre Code 
of C iv il Procedure.

A. Section 711, B lackacre Code of C iv il Procedure, 
is complied w ith  if  the defendants had sufficient "m in­
imum contacts” w ith  this State.

Section 711 of the Blackacre Code of Civil Procedure pro­



13

vides that certain conditions must be fulfilled as a prerequisite 
for the assertion of personal jurisdiction. The limits of these 
requirements, however, are not spelled out in the statute. 
Several states courts have adopted the ''minimum contacts” 
test as the standard for determining statutory compliance. 
See H enry R. Jahn  & Son In c. v . Superior C ourt, supra ; 
Compania De Astral, S.A. v . B oston  Metals Co., 205 Md. 
237, 107 A .2d 3 57 (1964), c e r t , d en ied  348 U.S. 943 (1955); 
Beck v . Spindler, supra. See also, G ordon A rm stron g Co. v . 
Superior C ourt, 160 Cal. App.2d 711, 325 P.2d 21 (Dist. 
Ct. App. 1958) where Mr. Justice Ashburn stated in a con­
curring opinion, "In the process of evolution . . . California 
had committed itself to the proposition that any set of facts 
which would sustain service of summons as due process would 
also spell doing business within the state.” Id. at 715, 325 
P.2d at 27. Thus it would appear that the courts have 
striven to obtain maximum jurisdiction to the extent per­
mitted by due process. Gray v . A merican Radiator & Stand­
ard Sanitary C orp., supra ; Atkins v . Jon es  S> Laugblin Steel 
Corp., 258 Minn. 571, 104 N.W.2d 888 (1960).

It is submitted, therefore, that the legislature of Blackacre 
also intended to extend its scope of personal jurisdiction over 
non-resident defendants by enacting a liberally worded stat­
ute. Hence, since the defendants had sufficient "minimum 
contacts” with Blackacre, the state’s statutory requirements 
were fulfilled.

B. Defendants, although foreign corporations, are 
nonetheless "non-domiciliaries” within the meaning of 
Section 711.

The facts show that defendant-retailer is a corporation 
duly organized under the laws of the State of Bonanza (R.
1) ,  and that defendant-manufacturer is a corporation duly 
organized under the laws of the State of Bliss (R. 1) . It is 
submitted that both defendants are non-domiciliaries within 
the meaning of Section 711, since a corporation is domiciled 
only in the state of its incorporation. B ergn er  S' Engel B rew ­
in g  Co. v . Drey f us ,  172 Mass. 154, 51 N.E. 531 (1898). The 
New York statute, N.Y. Civ. Prac. Law §302 (effective Sept. 
1963) employing the exact language as the Blackacre Statute,



14

has been utilized to obtain jurisdiction over foreign corpora­
tions. Steele v . D eLeeuw, 40 Misc.2d 807, 244 N.Y.S.2d 97 
Sup. Ct. (1963). See also Fisher G overnor Co. v . Superior 
C ourt, S3 Cal.2d 222, 1 Cal. Rptr. 1, 347 P.2d 1 (1959). 
Therefore, defendants, in the instant case, are members of 
the class which the statute was enacted to reach.

C. The defendants, by soliciting through advertis­
ing and by selling products for consumption in Black- 
acre, "transacted business” within the meaning of 
Blackacre Code of Civil Procedure, Section 711,

It has been demonstrated above that the facts show suf­
ficient "minimum contacts” with the State of Blackacre, 
and that the statutory language of Subsection 711 (a) ( 1) 
is based upon the "minimum contacts” requirement of 
In terna tiona l Shoe, supra. Because the solicitation and sub­
sequent sale are sufficient to meet the "minimum contacts” 
requirement, it follows that they are sufficient to constitute 
"transacting business” within the statutory meaning of Sub­
section 711(a) (1 ).

D. The fact that defendants committed a "tortious 
act” in the State of Blackacre, under Subsection 711  
( a ) (2) ,  affords this court a further basis on which 
to sustain the exercise of personal jurisdiction, even 
though the conduct giving rise to the injury may not 
have occurred in Blackacre.

Subsection 711(a) (2 ) provides for personal jurisdiction 
over non-domiciliaries who "commit a tortious act within 
the state.” Similar provisions have been employed by other 
states to obtain personal jurisdiction over non-domiciliaries. 
Gray v . A merican Radiator & Standard Sanitary Corp., 
supra; Fornabio v . Swiss Air Transp. Co., 42 Misc.2d 182, 
247 N.Y.S.2d 203 (Sup. Ct. 1964); Smy t h  v . Tw in State 
Im p rov em en t Corp., 116 Vt. 569, 80 A.2d 664 (1951).

It is true that the present action is for breach of an implied 
warranty, but, as will be demonstrated below, the action for 
breach of an implied warranty sounds essentially in tort. 
(Brief p. 21).

There appears to be no valid reason for distinguishing be­
tween "tort” and "tortious act” so as to limit the exercise of



15

jurisdiction by the forum. The Restatement, Conflict of 
Laws, §377 (1934), states that the place of the wrong is 
where the 'last event occurs which is necessary to render the 
actor liable. Also, the Restatement, Conflict of Laws §318, 
holds that the law to be applied, regardless of where the ac­
tion is commenced, is the place of the wrong. Since the law of 
Black acre is the law to be applied in the instant case, and 
since the injury occurred there, it follows that the "tort” or 
"tortious act” occurred in Blackacre.

In A nderson v . P en n cra ft T ool Co., 200 F. Supp. 154 
(N.D. 111. E.D. 1961) the plaintiff was injured by an instru­
ment manufactured and sold outside the state by a defendant 
whose only contact with Illinois was that the accident oc­
curred there. In upholding jurisdiction over the defendant, 
the court held that the phrase "tortious act” refers to an act 
which causes injury, and that the technical distinction be­
tween the word "tort” and "tortious act” would not avail 
to defeat or obscure the intention of the legislature to extend 
the reach of the state’s process as far as possible, consistent 
with the limitations of the Fourteenth Amendment.

As the record indicates, the injury occurred solely within 
the State of Blackacre (R. 3). Since it is a basic concept 
of tort law that liability does not arise until injury occurs, 
Prosser, T orts 4 (3rd ed. 1964), it follows that the tort was 
committed in Blackacre. To reach a contrary conclusion 
would make more onerous the burden imposed upon a plain­
tiff seeking redress for injuries caused by a defendant who 
produces a defective product outside the state injuring a resi­
dent therein. Such a result would clearly contravene the 
legislative intent of Blackacre in protecting its citizens. It 
is tree that the defective product was manufactured in the 
State of Bliss and sold in the State of Bonanza, but it has 
been held, nonetheless, that the wrongful conduct is insep­
arable from the resulting injury. Gray v . A merican Radiator 
& Standard Sanitary C orp., supra.

It is further submitted that in the case of defectively 
manufactured instruments, the hazard persists so long as the 
product circulates. Singer v . Walker, 21 App. Div.2d 28 5, 
250 N.Y.S.2d 216 (1964). The placing of the dangerous 
force in motion resulted in the tortious act continuing and



16

persisting into the State of Blackacre where the actual dam­
age occurred. In addition, the defendants knew or should 
have known (because of the scope of their business) that the 
Nu-Kitchen might find its way into the State of Blackacre. 
Ehlers v . U.S. H eating and C oolin g Mf g .  Corp., 124 N.W.2d 
824 (Minn. 1963). This is demonstrated by the fact that 
approximately 20% of the retail sales in Bonanza were with 
residents of the State of Blackacre (R. 9 ). One who has 
such foreseeable knowledge should not be able to escape lia­
bility in the state where his products cause injury. There­
fore, this Court should conclude that a "tortious act” oc­
curred in the State of Blackacre, within the meaning of 
Blackacre Code of Civil Procedure, Subsection 711(a) (2 ).

IV.
The m anu factu rer or re ta ile r of a defective product 

should be held s tr ic tly  liab le to any person in ju red  
w hile using the product for its intended purpose, 
w hether or not there is p r iv ity  of contract.

A. The present natu re  of modern commercial en­
terprise dictates th a t negligence, or fau lt , on the p art 
of the m anufactu rer should no longer be the basis of 
liab ility  to an in ju red  consumer.

The modern consumer comes into contact with an extra­
ordinary number and variety of articles for sale in the market. 
Furthermore, damage to property or injuries to the person 
are bound to result from defects which somehow, through 
no particular fault of anyone, find their way into products 
displayed for public consumption. Negligence has long been 
the most common basis for finding liability to the consumer. 
Moreover, M acPberson v . Buick, M otor Co., 217 N.Y. 382, 
111 N.E. 1050 (1916), extended this liability to any con­
sumer injured by the product because of the manufacturer’s 
negligence, whether or not he was in privity of contract. 
The rapid economic growth of this country, however, has 
placed a noticeable burden upon the law to keep pace with 
this expansion. As commercial transactions increase and 
goods are produced more rapidly, the time and ability to find 
the cause of product defects becomes increasingly difficult



17

because the injured plaintiff is seldom in a position to be 
familiar with the manufacturing process. Escola v . C oca - 
Cola B o ttlin g  Co. o f  Fresno, 24 Cal.2d 453, 150 P.2d 436 
(1944) (concurring opinion). Many products today are no 
longer made by one individual. They often are manufac­
tured by many persons or organizations, many of which are 
independent contractors. Defects in products can exist with­
out anyone being at fault. A machine can turn out a defec­
tive part, though it has made thousands like it before with 
no apparent difficulty. Inspection may meet all prudent re­
quirements of safety, yet fail to reveal the defect which 
cannot be found without destroying the usefulness of the 
product itself. Even when discovered before reaching the 
consumer, it is often impossible to tell what caused the defect. 
Escola v . C oca-C ola B o ttlin g  Co., supra. In the case of such 
machines as automobiles, the defect causing injury may go 
unfound because the product is partially destroyed during 
the accident. H enningsen  v . B loom field  M otors, In c., 32 
N.J. 358, 161 A.2d 69 (1960). Accordingly, as it becomes 
more difficult to accurately trace the fault to the proper 
source, the reliance of the courts on the doctrine of negli­
gence, which in turn is based on fault, becomes less useful as 
a tool of justice. The injury remains while the responsibility 
for its cause is unfound. Therefore, the responsibility for 
injury must be governed by factors more firmly grounded 
on public policy, and not upon the concept of fault based 
on a particular act or omission.

B. Public policy requires that a manufacturer be 
held strictly liable to any person injured by the normal 
use of a defectively manufactured product, w hether 
or not there is privity of contract.

Since M acPherson v . Buick M otor Co., supra, where the 
privity requirement was swept away in negligent manufac­
turing cases, courts have been making similar inroads in the 
area of implied warranty. In Escola v . C oca-C ola B o ttlin g  
Co. o f  Fresno, supra, Mr. Justice Traynor advocated the ap­
plication of manufacturer’s strict liability in tort. His theory 
was firmly grounded upon public policy. Courts long have 
been using such devices as Agency and Res Ipsa Loquitor to 
avoid the privity requirement. Ja cob  E. D ecker & Sons v.



18

Capps, 139 Tex. 609, 164 S.W.2d 828 (1942) ; Prosser, The 
Assault Upon th e C itadel (S tr ict L iability to  th e C on sum er), 
69 Yale L. J. 1099, 1124 (1960). Viewing these devices 
largely as an ineffective attempt to apply what was essentially 
strict liability, Justice Traynor said:

The injury from a defective product does not be­
come a matter of indifference because the defect 
arises from causes other than the negligence of the 
manufacturer. . . .  It is needlessly circuitous to make 
negligence the basis of recovery and impose what is 
in reality liability without negligence. Escola v . 
C oca-C ola B o ttlin g Co., supra  at 462, 130 P.2d 
at 441.

In G reenman v . Yuba P ow er Prods. In c., 59 Cal.2d 57, 
27 Cal. Rptr. 697, 377 P.2d 897 (1963), the majority of the 
court adopted Justice Traynor’s reasoning and held the man­
ufacturer strictly liable in tort when the product he placed 
in the stream of commerce, to be used without further in­
spection, turned out to be defective and caused personal in­
jury. The cost of such injuries must be paid for by someone, 
and in a commercial situation where fault is no longer an 
effective determinant in fixing liability, the burden should 
be born by those best able to bear the loss. Such persons, 
Justice Traynor points out, are not the consumers. G reen- 
man v . Yiiba P ow er Prods. In c., supra at 63, 27 Cal. Rptr. at 
701, 377 P.2d at 901. Liability should be placed on the 
manufacturer who put the product into circulation, and who 
can insure against the inevitable losses while at the same time 
passing along any increased cost to the consumer as a price 
of doing business. Escola v . C oca-C ola B o ttlin g Co., supra.

Another element in the movement toward strict liability 
is the increasing public interest in the safeness of products. 
Prosser, Assault U pon th e C itadel, supra  at 1122. No longer 
is this an acceptable era for the doctrine of ca vea t em p tor. 
Initially, the manufacturer and the seller were one and the 
same person. Markets were local in nature. It was not par­
ticularly unjust to force upon a person the risk of looking 
after his own interests while dealing at arms length with a 
local merchant. Today, however, the manufacturer has all 
the advertising media at his command to invade nearly every



19

home in order to demonstrate the merits of his product. 
H enningsen  v . B loom field  M otors, supra; Ja cob  E. D ecker 
& Sons V. Capps, supra. No longer can purchasers rely only 
on the integrity and reputation of the local merchant. Goods 
are easily moved all over the country. Therefore, the public 
must increasingly rely on the manufacturer’s judgment as to 
the safeness of a product. Escola v . C oca-C ola B ottlin g Co., 
supra. As the consumer becomes less able to protect himself, 
public interest in the general quality of products correspond­
ingly increases. Because of this need for protection, the de­
vice of risk spreading becomes a necessary and proper solu­
tion. The manufacturer, therefore, should not be able to 
obstruct this process by claiming lack of privity of contract.

Manufactured products, moreover, are intended for the 
public. Ja cob  E. D eck er & Sorts v . Capps,  supra. Though 
the manufacturer sells to the retailer and has no contract 
with the consumer, his sale is made with the full knowledge 
and intent that the product will be resold in the general mar­
ket. The public must be induced to buy because the manu­
facturer cannot continue to produce unless his retailer’s in­
ventory is sold. Ja cob  E. D ecker & Sons v . Capps,  supra. 
Consequently, all the manufacturer’s advertising is directed 
toward the ultimate purchaser.

Formerly, when commerce was local in nature, the pur­
chaser was more likely to be in privity of contract with the 
manufacturer. However, privity of contract is no longer 
the usual relation between manufacturer and plaintiff. Es­
co la  v . C oca-C ola B o ttlin g Co., supra. Nevertheless, injury 
to the plaintiff is no less foreseeable today simply because the 
product is generally distributed and sold by persons other 
than the manufacturer.

The privity requirement is losing much of its former effect 
and is being increasingly abolished by the courts. D even y  
v . R heem  Mf g .  Co., 319 F.2d 234 (2nd Cir. 1963) ; Chap­
m an v . B rown, 198 F. Supp. 78 (D. Hawaii 1961) ; K in g v. 
Dcntglas A ircra ft, In c., 159 So.2d 108 (Fla. App. 1963). In 
connection with the potentially extensive liability in atomic 
energy cases, the Atomic Energy Act, in the 1957 Anderson 
Amendment, 42 U.S.C.A. §§ 2012-2296 (Supp. 1963), pro­
vides that the United States may limit liability and make



20

funds available for public indemnification in case of a "nu­
clear incident.” See also Stason, Estep & Pierce, A toms and 
th e Law 752 (1959). It would appear, therefore, that in 
the area of atomic energy, the standard of strict liability is 
all the more desirable from the standpoint of fairness to the 
consumer. See Cavers, Im p rov in g  Financial P ro tection  o f  
th e  Public A gainst th e Hazards o f  N uclear P ow er, 77 Harv. 
L. Rev. 644, 664 (1964).

C. Policy reasons in favor of p r iv ity  free str ic t l ia ­
b ility  to the consumer apply w ith  equal force against 
the seller of a defective product.

In applying strict liability, the courts have made it clear 
that the manufacturer alone is not the only defendant against 
which there made be recovery. The manufacturer may be 
either unavailable as a defendant or unknown altogther. 
However, even where the manufacturer is known, served 
with process, and can be held liable, the injured plaintiff may 
proceed against the seller as well. Vandermark v . Ford M otor 
Co., 61 Cal.2d 245, 37 Cal. Rptr. 896, 391 P.2d 168 (1964).

The reasons for this result are manifest. The seller shares 
the responsibility for putting goods into the stream of com­
merce. Vandermark v. Ford M otor Co., supra. He benefits 
from the sale to the public. His advertising is extensive. 
The manufacturer may spread the risk through insurance as 
a cost of doing business, but the retailer is also in business 
and can procure insurance. In view of these various factors, 
the courts appear to have made no distinction placing more 
responsibility upon one defendant than the other. Vander­
mark v . Ford M otor Co., supra. In that case the plaintiff 
sued both the manufacturer and the dealer for breach of 
implied warranty. The dealer contended that strict liability 
applied only to the manufacturer. The court replied that:

Retailers like manufacturers are engaged in the 
business of distributing goods to the public. They 
are an integral part of the overall producing and 
marketing enterprise that should bear the cost of 
injuries resulting from defective products. . . . Ac­
cordingly . . .  [the dealer] is strictly liable in tort



21

for personal injuries caused by defects in cars sold 
by it. 37 Cal. Rptr. at 899, 391, P.2d at 171.

The facts of the instant case conclusively show that both 
defendants were engaged in advertising the Nu-Kitchen to 
the general public and were both responsible for its circula­
tion in the stream of commerce. Therefore, recovery may 
be had against both the manufacturer and the retailer in this 
action.

D. Because a breach of an implied w arranty caus­
ing personal injury is an action sounding in tort, no 
p r iv ity  of contract is required.

The action for a breach of an implied warranty was ini­
tially a tort action. Subsequently, however, it was taken 
over by assumpsit. Ames, H istory o f  Assumpsit, 2 Harv. L. 
Rev. 1 (1888) ; Prosser, T orts 493 (2nd ed. 1955). Never­
theless, 1 Williston, Sales § 195 (rev. ed. 1948), states that 
liability upon a warranty may sound in tort as well as in 
contract. The tort characterization has been recognized in 
implied warranty actions as to the survival of actions, Gos­
lin g  v . N ichols, 59 Cal. App.2d 442, 139 P.2d 86 (Dist. Ct. 
App. 1943), and the statute of limitations, R ubino v . Utah 
C anning Co., 123 Cal. App.2d 18, 266 P.2d 163 (Dist. Ct. 
App. 1954).

In B. F. G oodrich  Co. v . H ammond, 269 F.2d 501 ( 10th 
Cir. 1959), there was recovery for wrongful death on the 
theory of implied warranty. The court held that an implied 
warranty was imposed by law and not by agreement of the 
parties. No privity of contract, therefore, was necessary. 
It did not matter that the wife was not the purchaser. In 
accord is B rown  v . Chapman, 304 F.2d 149 (9th Cir. 1962), 
where the plaintiff was injured when a borrowed hula skirt 
caught fire. Here too an implied warranty was held to be 
"not contractual,” and privity of contract was not required.

Courts have gone further, however, and have actually 
characterized a breach of implied warranty as a tort action, 
thus avoiding contract implications entirely. G oldberg v . 
Kollsm an In strum en t C orp., 12 N.Y.2d 432, 191 N.E.2d 81, 
240 N.Y.S.2d 592 (1963). Here action was brought against



22

Lockheed Aircraft Corporation and others. The court char­
acterized the breach of warranty as:

Not only a violation of the sales contract out of 
which the warranty arises but [as] a tortiou s 
jv r o n g  (emphasis added) suable by a noncontract­
ing party whose use of the warranted article is 
within the reasonable contemplation of the vendor 
or manufacturer. Id. at 436, 191 N.E.2d at 82, 240 
N.Y.S.2d at S94.

The California Court in Green-man v . Yuba P ow er P rod- 
u cts , In c., supra, puts such cases solidly in the tort category, 
without any reliance on warranty. In Ytiba the plaintiff was 
injured by a defective lathe. The court said that it is "clear 
that the liability is not one governed by the law of contract 
warranties but by the law of strict liability in tort.” Id. at 
63, 27 Cal. Rptr. at 701, 377 P.2d at 901. The reasoning 
again is that liability is not assumed by agreement but is im­
posed by operation of law. Being purely a tort remedy, there 
is no requirement of privity of contract. This result was 
approved in Vandermark v . Ford M otor Co., supra, where 
strict liability was imposed. Even contractual attempts to 
disclaim liability were ineffectual. Any contract elements 
associated with implied warranties were considered irrelevant 
to the plaintiff’s recovery. Under G reemnan  and Vander­
mark, privity and the law of sales are not controlling. Lia­
bility simply extends to the foreseeable plaintiff.

In the light of the foregoing authorities and public policy 
supporting strict liability, this court should conclude that 
on the facts alleged in the complaint, the plaintiff has ample 
foundation for recovery against both defendants in this 
action.

V.
Moreover, the p laintiff has alleged sufficient facts to 

hold the defendan t-reta iler liab le under the implied 
w arran ties of the Uniform Commercial Code.

A. The defendan t-reta iler im plied ly w arran ted  
under the Uniform  Commercial Code, Sections 2-3 14 
and 2-3 1 5 th a t the Nu-Kitchen w ould be suitable and



23

fit for the purposes for which it was designed, manu­
factu red  and purchased.

Under the Blackacre Uniform Commercial Code, § 2-314, 
HONEST SAM’S FISSION & FUSION, LTD., as seller, 
impliedly warranted that the Nu-Kitchen would be mer­
chantable. Goods are "merchantable” under § 2-314 if they 
are "fit for the ordinary purposes for which such goods are 
used.” Because the Nu-Kitchen did not operate properly 
and thereby caused injury to the plaintiff, the defendant 
breached his implied warranty of merchantability.

Furthermore, at the time of the sale the defendant-seller 
had reason to know of the particular purpose for which the 
product would be installed, and that the purchaser would 
necessarily rely on the seller’s skill and judgment to provide 
goods fit for the purpose. Consequently, the defendant’s 
failure to provide suitable goods, fit for the purpose involved, 
breached the warranty of fitness in § 2-315 of the Uniform 
Commercial Code.

B. Furthermore, the Uniform Commercial Code, § 
2 - 318 , should be extended to include injured employ­
ees of the purchaser.

The defendant-retailer relies on the doctrine of privity 
of contract as a defense to this suit brought by an employee 
of the purchaser. The question raised is whether such a re­
quirements meets the needs of modern commercial trans­
actions.

It is important to remember that the requirement of priv­
ity came primarily from the case of W in terb o ttom  v. W right, 
10 M. & W. 108, 152 Eng. Rep. 402 (1842). Though this 
case was widely followed, the requirement of privity did not 
become statutory. In Chapman v . B rown, 198 F. Supp. 78 
(D. Hawaii 1961) (the District Court decision in the hula 
skirt case) the defendant contended that the Uniform Sales 
Act required privity of contract. However, the court dis­
missed this contention:

[P jriv ity is not expressly mentioned in the Uniform 
Sales Act [nor is it in the Uniform Commercial 
Code], but is a supposed requisite tracing its origin



24

to an old English decision in 1842 [the W inter b o t­
tom  case] on a question of pleading in a case in­
volving an alleged negligent breach of an express 
contract. . . . Id. at 102.

The court then went on to show that privity of contract 
was not required in implied warranty cases.

The Uniform Commercial Code, § 2-318, has clearly rec­
ognized the injustice of the privity requirement when, for 
example, it serves to bar the wife or child from recovery 
simply because the husband was the purchaser of the defec­
tive product. Thus, by statute there is now adequate con­
sumer protection with respect to household goods. However, 
the extension of warranty recovery does not go far enough. 
Is there any meaningful distinction which favors the house­
hold member or guest over the employee? Concerning the 
need for consumer protection, there is no fundamental dif­
ference between the workshop and the home. In both in­
stances, the product is ordinarily bought with the idea that 
a person other than the purchaser will be the user. Both the 
manufacturer and the retailer can foresee the use to which 
a product will be put. In the case at bar, all the parties knew 
that an employee would be the person most likely to suffer 
from radiation sickness if the Nu-Kitchen were defective. 
Restaurant employees are as dependent upon the safe oper­
ation of the equipment as are the housewives who are pro­
tected by § 2-318. No valid reason exists why warranties 
on a Nu-Kitchen installed in the home should run to a greater 
number of persons than if that same unit were installed in 
a restaurant. Foreseeability of harm in one case is no greater 
than in the other.

The New York cases are in accord with the above reason­
ing. In G reenb erg v . Lorenz, 9 N.Y.2d 195, 173 N.E.2d 
773, 213 N.Y.S.2d 39 (1961), a child was injured. Though 
the Uniform Commercial Code was not yet in force, the 
court extended warranties to members of the purchaser’s 
family, substantially as provided by § 2-318. A year later, 
action was brought by an employee who was injured when 
a defective chair collapsed. Thomas v . Leary, 15 App. Div.2d 
438, 225 N.Y.S.2d 137 (1962). This case extended the 
G reenb erg  decision (and by implication § 2-318) to cases



25

involving employees, even though they were not in privity 
with the seller:

On logic, as distinguished from an arbitrary limita­
tion, there should be no distinction between the 
G reenb erg  case and the present case, merely because 
food and family were involved in that case and a 
chair and an employer-employee relationship in this.
Id. at 440, 225 N.Y.S.2d at 140.

As it is apparent that the Blackacre Uniform Commercial 
Code has extended the benefits of warranties to household 
members and guests, there is no sound logic or reason why 
this court should not adopt the view of the New York Courts 
and abolish the requirement of privity as applied to employees 
injured by products purchased for their use.

CONCLUSION

For the reasons herein specified, it is respectfully submitted 
that the order of the court below be affirmed.

R o be rt  Be l t o n  
A l d e n  T. B r y a n  
St e p h e n  M. K ass

A ttorn eys f o r  R esponden t

B o st o n  U n iv e r sity  Sc h o o l  o f  L a w