May 17, 1910, was five score and 11 years ago (that’s 111, folks) that Donald C. MacPherson and his Buick brought forth upon the American continent a new judicial principle conceived in favor of consumers. MacPherson, who lived in upstate New York, was a stonecutter by trade, specializing in gravestones. On that momentous day, he purchased a 1909 Buick runabout from a dealer in Schenectady, New York. It was a sporty vehicle with enough engine power to reach 50 mph. After a period of time, along a road near Saratoga Springs, New York, the wood spokes of one wheel collapsed, throwing MacPherson to the road whereupon he suffered injuries.

MacPherson sued Buick, the auto manufacturer, which defended the claim under strong precedent, holding that it was immune from liability because the purchaser was not in “privity of contract” with Buick and the wheel was manufactured by another company. This legal doctrine emanated from England and had been the accepted jurisprudence in the United States.

On appeal to New York’s highest bench, the Court of Appeals, Justice Benjamin Cardozo in 1916 deflated the privity rule, holding that Buick could have found the defect in the wheel by inspection and had a duty to the purchaser to do so. His ruling rejected the long-accepted defense reasoning that if a product negligently made poses a danger of personal injury then it is a thing of danger, i.e., inherently dangerous. Further, the court noted that since the car had room for three passengers, it could be expected that injury could occur to persons who were not purchasers in privity. In effect, the doctrine of product liability was introduced into the American scene.

The decades of Industrial Revolution through the early 1900s were powered by labor, mostly immigrant, and literally consumed thousands through death and injury. Labor was not considered personal and the engines of industry and manufacture rumbled and belched incessantly to produce economic wealth and growth for the common weal. Along the way, people were secondary, even as consumers and laborers.

The decades of Industrial Revolution through the early 1900s were powered by labor, mostly immigrant, and literally consumed thousands through death and injury. Labor was not considered personal and the engines of industry and manufacture rumbled and belched incessantly to produce economic wealth and growth for the common weal. Along the way, people were secondary, even as consumers and laborers. Legal doctrines such as assumption of risk, contributory negligence, and the aforementioned privity rule precluded liability lawsuits against the profit makers. By the turn of the century, historians note, “industrial accidents were claiming 35,000 deaths per year and inflicting close to 2,000,000 injuries.”  In 1911, in New York City, the tragic Triangle Shirtwaist Factory fire witnessed the deaths of 146 young men and women, many of whom perished after leaping to their deaths from the factory inferno.

Scores of women and children were rendered destitute upon the loss of a family breadwinner. Neither society nor government afforded any social safety nets. Unemployment, workers’ compensation benefits, or other support mechanisms were unknown.

Yet, even today, there exist economic theorists and elected political leaders who rail against safety rules and manufacturing regulations to protect consumers and workers as “burdensome.”

Yet, even today, there exist economic theorists and elected political leaders who rail against safety rules and manufacturing regulations to protect consumers and workers as “burdensome.” Milton Friedman, the Nobel economist who advised Ronald Reagan, advocated a consumption economy where purchasers expressed choice by acquiring products and services for which they then assumed the risk to use, even upon finding the purchase to be defective. This, Friedman claimed, was his value system. Supply and demand, similar to trickle-down economics, would govern and afford safety – sooner or later.

Opposition to rules and regulations intended to ensure safe products and workplaces is generally voiced as “government intrusion into the market” and costly to business. One would search in vain across the internet for a corporate comment praising any rule or regulation as welcome for improving product competition or lauding safety to consumers.

For more decades than most can remember, conservatives and Republicans have promoted free market principles as essential to economic progress and the participation of all in the wealth produced by that principle. This ideology supports opposition to government rules and regulations designed to ensure the safety of consumers. In practice, however, the same cohort of political persons often legislates in a different, sometimes opposite, direction. In its purest form, the free market’s functioning, absent government intervention, determines prices and wages through competition and the supply/demand dynamic.

When the phrase “inherently dangerous” is considered, there are few products in the marketplace that fit that description more neatly than firearms. Today, MacPherson would be required to have a state-issued driver’s license, auto liability insurance, and seat belts at a minimum in and for his Buick. Auto manufacturers are governed by scores of federal and state regulations to ensure vehicle safety. The requirements to purchase, own, and use a firearm are virtually nonexistent.

In the late 1990s and early 2000s, gun safety advocates in large metropolitan areas launched broad campaigns against gun manufacturers alleging negligent marketing of products without restrictions. The response in 2005 was the passage of the Protection of Lawful Commerce in Arms Act (PLCAA), signed into law by President George W. Bush. The measure insulated gun manufacturers against liability for lawsuits alleging crimes involving firearms.

Producing and marketing firearms that are safely utilized is a wholly different endeavor than that for automobiles. In either case, the cooperation of manufacturers and government are necessary. In the late 1990s and early 2000s, gun safety advocates in large metropolitan areas launched broad campaigns against gun manufacturers alleging negligent marketing of products without restrictions. The response in 2005 was the passage of the Protection of Lawful Commerce in Arms Act (PLCAA), signed into law by President George W. Bush. The measure insulated gun manufacturers against liability for lawsuits alleging crimes involving firearms.

The Act represents a unique modification of law and public policy as protectionism in favor of a single industry. As a result, the free market is a bit less free. The attorney who represented MacPherson faced only a legal doctrine subject to court interpretation. Lawyers challenging gun manufacturers face a more daunting barrier, one enshrined in federal legislation. In this regard however, free market theorists such as Friedman tend to discount other market factors and players that have a stake in the marketplace.

The American lawyer has proven time and again that neither legal doctrines nor legislative hurdles are impenetrable. Just as MacPherson freed the market and took down a fictional protection, bets on the men and women of the bar to topple PLCAA will pay off.

Categories: Issues