Would MacPherson v. Buick Motor Co. Be Decided the Same Way Today?

Justice Cardozo, writing for the New York Court of Appeals, held that a manufacturer owes a duty of care not only to the immediate purchaser but to all persons who might foreseeably use the product. The decision abolished the 'privity of contract' requirement in products liability cases, ruling that Buick owed a duty of care to MacPherson even though MacPherson had purchased the car from a dealer, not directly from Buick. Cardozo reasoned that when a manufacturer knows a product is likely to be used by persons other than the purchaser, the manufacturer is under a duty to make it carefully.

MacPherson is one of the most celebrated decisions in American tort law and laid the groundwork for the modern products liability regime. The abolition of the privity requirement opened the door for injured consumers to sue manufacturers directly, regardless of the chain of distribution through which the product passed. This principle was universally adopted across American jurisdictions and formed the foundation for the expansion of products liability throughout the twentieth century.

The development of products liability since MacPherson has gone far beyond what Cardozo envisioned. Strict products liability, adopted in Greenman v. Yuba Power Products (1963) and codified in the Restatement (Second) of Torts Section 402A, eliminated the need to prove negligence in many products liability cases. The Restatement (Third) of Torts: Products Liability (1998) further refined the framework, distinguishing between manufacturing defects, design defects, and failure-to-warn claims and applying different standards to each.

Modern products liability law faces new challenges from emerging technologies, including autonomous vehicles, artificial intelligence, software products, and pharmaceuticals developed through novel processes. These technologies raise questions about how to define defective design, allocate liability in complex supply chains, and balance innovation incentives against consumer safety. The basic principle MacPherson established—that manufacturers owe a duty of care to foreseeable users—remains the starting point for analysis, even as the details of its application continue to evolve.

MacPherson would unquestionably be decided the same way today. The abolition of the privity requirement in products liability is one of the most firmly established principles in American tort law, universally accepted across all jurisdictions and reflected in the Restatements and the Uniform Commercial Code. No court or scholar would seriously argue for a return to the privity requirement that would insulate manufacturers from liability to the consumers who actually use their products.

The modern products liability regime has moved so far beyond MacPherson that the decision's holding now seems self-evident. The notion that a car manufacturer should be liable for injuries caused by a defective wheel, regardless of whether the injured party purchased the car directly from the manufacturer, is no longer controversial. If anything, the challenge in modern products liability is managing the scope of liability, not establishing its existence.

Cardozo's reasoning in MacPherson—focusing on the foreseeability of harm and the manufacturer's superior ability to prevent defects—anticipated the policy considerations that would animate products liability for the next century. The economic analysis of tort law, developed by scholars like Guido Calabresi and Richard Posner, provides additional support for MacPherson's result, demonstrating that placing liability on manufacturers creates incentives for optimal investment in product safety.

The only area where MacPherson's approach might be questioned involves the application of traditional duty concepts to new technologies. The question of whether and how a software developer owes a duty of care to end users, or how liability should be allocated when an autonomous vehicle causes injury, requires extending MacPherson's principles into contexts Cardozo could not have imagined. But the basic principle—that those who create products that can cause harm owe a duty to those foreseeably harmed—would be reaffirmed without hesitation.

The scholarly debate about MacPherson has shifted from the correctness of abolishing the privity requirement—which is unquestioned—to the broader implications of the decision for tort theory and the optimal design of the products liability system. George Priest has argued that the expansion of products liability after MacPherson ultimately went too far, creating excessive litigation costs and perverse incentives that harm consumers through higher prices and reduced product availability. Priest contends that the strict liability regime that followed MacPherson overincentivizes litigation without proportionate safety improvements.

Defenders of expansive products liability, including David Owen, argue that MacPherson's insight about the duty of manufacturers to foreseeable users reflects sound policy that has produced genuine improvements in product safety. Owen's comprehensive treatise on products liability documents the relationship between liability rules and manufacturer safety investments, concluding that the post-MacPherson regime has saved countless lives. The current debate increasingly focuses on how to apply MacPherson's principles to emerging technologies, with scholars like Ryan Calo and Madeline Lamo exploring the liability framework for artificial intelligence and autonomous systems.

• Greenman v. Yuba Power Products, Inc. (1963)
• Escola v. Coca-Cola Bottling Co. of Fresno (1944)
• Henningsen v. Bloomfield Motors, Inc. (1960)
• BMW of North America, Inc. v. Gore (1996)
• Wyeth v. Levine (2009)