01/12/04 – Text pp 1-7, 9, 81-84
A. Privity
Winterbottom v. Wright
(Exchequer of Pleas, 1842)
Text pp 1-2
P – Winterbottom – driver of the coach
JD – Wright – had K w/ Postmaster-General to maintain stagecoach
Facts: D had a K with the Postmaster-General to maintain a stagecoach for the delivery of mail. The coach broke down (due to D’s failure to perform the K) and P was injured. P sues D.
Issue: Can P sue D without privity of K?
Held: No…held for D
Rule: Can not be held L for negligently performing or failing to perform a K, unless there is privity of K.
Reasoning: If P were allowed to sue, every passenger, or even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action. This would allow an infinity of actions. This must be limited/confined to the parties who entered into them. In this case, there is no privity of K b/n these parties, thus, P cannot bring a claim.
CLASS NOTES:
What does privity mean?
· A K exists b/n the two parties.
Is the action in K or tort?
· There is a historical debate about whether K or tort – doesn’t really matter though.
· Seems mostly like a K case, but there are elements of tort (injuries of P, etc).
What is the rule of Winterbottom?
· Can not be held L for negligently performing or failing to perform a K, unless there is privity of K.
Why should privity of K of matter?
· If not, would open the door to a large number of claims – would be liable to anyone on the road, every passenger, etc.
· There needs to be a duty and breach
If the action is in K, does the Winterbottom rule apply in tort cases?
·
Change the facts…suppose the stagecoach is fine, but the driver runs over a child in the road.
· Would the driver be held liable, even though no privity of K?
Yes.
Do not need it in all situations – no privity of K needed here b/c there is no K issue.
· What about the situation in Winterbottom, which distinguishes it from these facts, thus requiring privity of K?
There is just no K at issue in where the kid is run over – it is just a run of the mill tort claim.
Notice that Wright simply failed to do his job – suppose that he had worked on it, but he had just done a bad job. Would this make a difference?
· This is arguable
Barron Roff – another judge in the case who wrote a concurrence – found this distinction
Later courts do not agree with this – they find that Lord Abinger did not see this – it does not matter whether he performed or not – he is only L if privity of K.
If this rule were still true today, you cou
icle he handles.
What are the three exceptions to the Winterbottom rule?
· (1) You can be L w/o privity if you manufacture something that is imminently dangerous to the life or health of mankind, and which is committed in the preparation or sale of an article intended to preserve, destroy, or affect human life
Examples: drugs, medicines, etc.
· (2) An O’s act of N which causes injury to one who is invited by him to use his defective appliance upon the O’s premises may form the basis of an action against the O.
does not fit because we are not on the manufacturer’s property
· (3) One who sells or delivers an article which he knows to be imminently dangerous to life or limb to another w/o notice of its quantities is L to any person who suffers an injury there from which might have been reasonably anticipated, whether there were any contractual relations b/n the parties or not.
There needs to be a warning
What are the reasons for the courts developing these exceptions to privity?
