Editing Common law (section)

=== Common law evolves to meet changing social needs and improved understanding {{anchor|CL_Common_Law_Evolves}} ===
{{Original research section|date=February 2024}}
[[Oliver Wendell Holmes Jr.]] cautioned that "the proper derivation of general principles in both common and constitutional law ... arise gradually, in the emergence of a consensus from a multitude of particularized prior decisions".<ref>Frederic R. Kellog, Law, Morals, and Justice Holmes, 69 Judicature 214 (1986).</ref> [[Benjamin Cardozo|Justice Cardozo]] noted the "common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively", but "[i]ts method is inductive, and it draws its generalizations from particulars".<ref>Benjamin N. Cardozo, The Nature of the Judicial Process 22–23 (1921).</ref>

The common law is more malleable than statutory law. First, common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and [[social philosophy]]. Second, the common law evolves through a series of [[incrementalism|gradual steps]], that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects.<ref>The beneficial qualities of the common law's incrementalist evolution was most eloquently expressed by the future [[Lord Mansfield]], then Solicitor General Murray, in the case of ''Omychund v. Barker'', who contended that "a statute very seldom can take in all cases; therefore the common law, that works itself pure by rules drawn from the fountain of justice, is for that reason superior to an [[Act of Parliament|act of parliament]]". I Atk. 21, 33, 26 Eng. Rep. 15, 22–23 (Ch. 1744)</ref> In contrast to common law incrementalism, the legislative process is very difficult to get started, as the work begins much earlier than just introducing a bill. Once the legislation is introduced, the process to getting it passed is long, involving the committee system, debate, the potential of conference committee, voting, and President approval. Because of the involved process, many pieces must fall into place in order for it to be passed.<ref>{{Cite web |title=The Legislative Process |url=https://www.geron.org/Advocacy/How-to-Advocate-for-Aging-Issues/The-Legislative-Process |access-date=2024-06-12 |website=www.geron.org}}</ref>

One example of the gradual change that typifies evolution of the common law is the gradual change in liability for negligence. The traditional common law rule through most of the 19th century was that a plaintiff could not recover for a defendant's negligent production or distribution of a harmful instrumentality unless the two were parties to a contract ([[privity of contract]]). Thus, only the immediate purchaser could recover for a product defect, and if a part was built up out of parts from parts manufacturers, the ultimate buyer could not recover for injury caused by a defect in the part. In an 1842 English case, ''[[Winterbottom v Wright]]'',<ref>''Winterbottom v. Wright'', 10 M&W 109, 152 Eng.Rep. 402, 1842 WL 5519 (Exchequer of pleas 1842)</ref> the postal service had contracted with Wright to maintain its coaches. Winterbottom was a driver for the post. When the coach failed and injured Winterbottom, he sued Wright. The ''Winterbottom'' court recognized that there would be "absurd and outrageous consequences" if an injured person could sue any person peripherally involved, and knew it had to draw a line somewhere, a limit on the causal connection between the negligent conduct and the injury. The court looked to the contractual relationships, and held that liability would only flow as far as the person in immediate contract ("privity") with the negligent party.

A first exception to this rule arose in 1852, in the case of ''[[Thomas v. Winchester]]'',<ref>[http://www.courts.state.ny.us/reporter/archives/thomas_winchester.htm ''Thomas v. Winchester''], 6 N.Y. 397 (N.Y. 1852)</ref> when New York's highest court held that mislabeling a poison as an innocuous herb, and then selling the mislabeled poison through a dealer who would be expected to resell it, put "human life in imminent danger". ''Thomas'' relied on this reason to create an exception to the "privity" rule. In 1909, New York held in ''Statler v. Ray Mfg. Co.''<ref>''Statler v. Ray Mfg. Co.'', 195 N.Y. 478, 480 (N.Y. 1909)</ref> that a coffee urn manufacturer was liable to a person injured when the urn exploded, because the urn "was of such a character inherently that, when applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully and properly constructed".

Yet the privity rule survived. In ''Cadillac Motor Car Co. v. Johnson''<ref>''Cadillac Motor Car Co. v. Johnson'', 221 F. 801 (2nd Cir. 1915)</ref> (decided in 1915 by the federal appeals court for New York and several neighboring states), the court held that a car owner could not recover for injuries from a defective wheel, when the automobile owner had a contract only with the automobile dealer and not with the manufacturer, even though there was "no question that the wheel was made of dead and 'dozy' wood, quite insufficient for its purposes". The ''Cadillac'' court was willing to acknowledge that the case law supported exceptions for "an article dangerous in its nature or likely to become so in the course of the ordinary usage to be contemplated by the vendor". However, held the ''Cadillac'' court, "one who manufactures articles dangerous only if defectively made, or installed, e.g., tables, chairs, pictures or mirrors hung on the walls, carriages, automobiles, and so on, is not liable to third parties for injuries caused by them, except in case of willful injury or fraud".<ref>{{Cite web |title=Johnson v. Cadillac Motor Car Co. |url=https://case-law.vlex.com/vid/johnson-v-cadillac-motor-895212692 |access-date=2024-09-03 |website=vLex |language=en}}</ref>

Finally, in the famous case of ''[[MacPherson v. Buick Motor Co.]]'',<ref>[http://www.courts.state.ny.us/reporter/archives/macpherson_buick.htm ''MacPherson v. Buick Motor Co.''], 217 N.Y. 382, 111 N.E. 1050 (N.Y. 1916)</ref> in 1916, [[Benjamin Cardozo|Judge Benjamin Cardozo]] for New York's highest court pulled a broader principle out of these predecessor cases. The facts were almost identical to ''Cadillac'' a year earlier: a wheel from a wheel manufacturer was sold to Buick, to a dealer, to MacPherson, and the wheel failed, injuring MacPherson. Judge Cardozo held:

{{Blockquote|It may be that ''Statler v. Ray Mfg. Co.'' have extended the rule of ''Thomas v. Winchester''. If so, this court is committed to the extension. The defendant argues that things imminently dangerous to life are poisons, explosives, deadly weapons—things whose normal function it is to injure or destroy. But whatever the rule in ''Thomas v. Winchester'' may once have been, it has no longer that restricted meaning. A scaffold (''Devlin v. Smith'', supra) is not inherently a destructive instrument. It becomes destructive only if imperfectly constructed. A large coffee urn (''Statler v. Ray Mfg. Co.'', supra) may have within itself, if negligently made, the potency of danger, yet no one thinks of it as an implement whose normal function is destruction. What is true of the coffee urn is equally true of bottles of aerated water (''Torgesen v. Schultz'', 192 N. Y. 156). We have mentioned only cases in this court. But the rule has received a like extension in our courts of intermediate appeal. In ''Burke v. Ireland'' (26 App. Div. 487), in an opinion by CULLEN, J., it was applied to a builder who constructed a defective building; in ''Kahner v. Otis Elevator Co.'' (96 App. Div. 169) to the manufacturer of an elevator; in ''Davies v. Pelham Hod Elevating Co.'' (65 Hun, 573; affirmed in this court without opinion, 146 N. Y. 363) to a contractor who furnished a defective rope with knowledge of the purpose for which the rope was to be used. We are not required at this time either to approve or to disapprove the application of the rule that was made in these cases. It is enough that they help to characterize the trend of judicial thought.

We hold, then, that the principle of ''Thomas v. Winchester'' is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. ... There must be knowledge of a danger, not merely possible, but probable.}}

Cardozo's new "rule" exists in no prior case, but is inferrable as a synthesis of the "thing of danger" principle stated in them, merely extending it to "foreseeable danger" even if "the purposes for which it was designed" were not themselves "a source of great danger". ''MacPherson'' takes some care to present itself as foreseeable progression, not a wild departure. Cardozo continues to adhere to the original principle of ''[[Winterbottom v. Wright|Winterbottom]]'', that "absurd and outrageous consequences" must be avoided, and he does so by drawing a new line in the last sentence quoted above: "There must be knowledge of a danger, not merely possible, but probable." But while adhering to the underlying principle that ''some'' boundary is necessary, ''[[MacPherson v. Buick Motor Co.|MacPherson]]'' overruled the prior common law by rendering the formerly dominant factor in the boundary, that is, the privity formality arising out of a contractual relationship between persons, totally irrelevant. Rather, the most important factor in the boundary would be the nature of the thing sold and the foreseeable uses that downstream purchasers would make of the thing.

The example of the evolution of the law of negligence in the preceding paragraphs illustrates two crucial principles: (a) The common law evolves, this evolution is in the hands of judges, and judges have "made law" for hundreds of years.<ref name="SpeiserLawOfTorts" /> (b) The [[ratio decidendi|reasons given for a decision]] are often more important in the long run than the outcome in a particular case. This is the reason that judicial opinions are usually quite long, and give rationales and policies that can be balanced with judgment in future cases, rather than the bright-line rules usually embodied in statutes.