The most important sentence in American products law was written in a concurrence nobody had to join, in a case about a soda bottle, by a judge who had come to the bench four years earlier with no judicial experience at all. Roger Traynor is here for that sentence, and for the eighteen years he waited to make it the law.
He was born in Park City, Utah, in 1900, the son of Irish immigrants, a miner’s son who grew up in a mining town and for a time “worked as a drayman hauling supplies behind a husky team of horses or mules.” He arrived at the University of California at Berkeley in 1919 with five hundred dollars in savings, took his degree Phi Beta Kappa in 1923, edited the California Law Review, and in 1927 finished both a law degree and a doctorate in political science. He joined the law faculty full time in 1930, where he “initiated the first regular course in taxation,” and in the 1930s he helped the Legislature draft much of the state’s modern tax code; a former student of his, later a professor of law at Berkeley, called him the principal author of the Sales and Use Tax Acts, and he was responsible for creating the mechanisms for collecting the newly enacted sales tax. In 1940, “although he had no judicial experience,” Governor Culbert Olson put him on the Supreme Court of California. He sat there thirty years, as an associate justice until 1964 and then, by appointment of Governor Edmund G. Brown, as Chief Justice until he retired in 1970, when he went back to teaching, at Hastings, at Utah, at Virginia and at Cambridge. He wrote more than nine hundred opinions. He died in 1983.
The soda bottle. On July 5, 1944, the court decided Escola v. Coca Cola Bottling Co. A waitress in a restaurant had put three bottles in the refrigerator and moved the fourth about eighteen inches from the case when, in her words, “it exploded in my hand,” and “The bottle broke into two jagged pieces and inflicted a deep five-inch cut, severing blood vessels, nerves and muscles of the thumb and palm of the hand.” The court let her win on the old doctrine, res ipsa loquitur, the thing speaks for itself, because the bottler “had exclusive control over both the charging and inspection of the bottles.” Traynor agreed with the result and then wrote separately. “I concur in the judgment, but I believe the manufacturer’s negligence should no longer be singled out as the basis of a plaintiff’s right to recover in cases like the present one.” Then the sentence: “In my opinion it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings.”
What makes the concurrence a model is not the boldness of the rule. It is the chain of reasons under it, each link a plain sentence a juror could follow. “As handicrafts have been replaced by mass production with its great markets and transportation facilities, the close relationship between the producer and consumer of a product has been altered.” “The consumer no longer has means or skill enough to investigate for himself the soundness of a product,” the next sentence begins. “The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business.” And so, “public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market.” Read those four sentences in order and you have the whole argument a plaintiff’s lawyer makes in every products case, written in 1944, in a part of the opinion that bound no one.
The power tool. On January 24, 1963, in Greenman v. Yuba Power Products, the court was unanimous and Traynor wrote for it. A man’s wife had “bought and gave him” a Shopsmith for Christmas in 1955, “a combination power tool that could be used as a saw, drill, and wood lathe.” In 1957 he bought the lathe attachments to turn a large piece of wood, and the piece “suddenly flew out of the machine and struck him on the forehead, inflicting serious injuries.” His experts testified that “inadequate set screws were used to hold parts of the machine together.” Eighteen and a half years after the soda bottle, the sentence came back as the law of California: “A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.” And the reason came with it: “The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.” The liability, he wrote, “is not one governed by the law of contract warranties but by the law of strict liability in tort.” The court did not need to recanvass the reasons. They had been sitting in the reports since 1944.
Then the editing, which is the part a working lawyer can copy tomorrow. The court’s own memorial for him, read into the reports in December 1983, says that “his opinions could, and can still, be readily comprehended,” and that he “never, even in his most trail-blazing productions, succumbed to the temptation to write a law review article in the guise of a judicial opinion.” A colleague called him “a master craftsman with words” who “used them much as a skilled surgeon would use his instruments,” and remembered that he “would automatically edit any legal writing placed before him for review; even his wife’s grocery lists, it was said,” and that “painstakingly he struck out ‘while’ in three places and substituted ‘although’ in my draft of an opinion.” Judge Henry Friendly said that “Roger Traynor was the ablest judge of his generation in the United States.” Another judge said “a Traynor opinion is always sound currency, always to be reckoned with.” Traynor himself put the credo in one line: “The law will never be built in a day, and with luck it will never be finished.”
Why he is here. Because Texas took his idea and wrote conditions into it. A design-defect claim in this state requires proof of a safer alternative design and that the defect was a producing cause, and the car, the trailer guard and the floor jack in Lift, Not Hold are all measured by that test, which Crashworthiness and Voluntary explain; every one of those cases begins with the sentence Traynor wrote separately in 1944. Because Ross Guberman, whose Point Made these pages are built on, studied him in Point Taken with Cardozo, Hand and Denning. And because of three things a trial lawyer can take from him. Write the sentence the court is not ready for, in the only place it will fit, and keep it; the law catches up with a sentence that was right. Under every rule you ask for, lay the chain of reasons in order, mass production, the consumer who cannot inspect, the maker who can insure, the responsibility fixed where it reduces the hazard, the way Brandeis laid the facts; a judge adopts a chain more readily than a slogan. And edit like a surgeon. Strike out while. Write although. The reader who can readily comprehend you is the only reader who will rule for you.
So when the defense says the tool was fine and the man under it was careless, remember where the question actually starts. It starts with an article placed on the market to be used without inspection, and with the person who was powerless to protect himself from what was built into it. That was true of a bottle in 1944 and a lathe in 1963, and it is true of a jack in a driveway in San Antonio.
Roger J. Traynor (1900, Park City, Utah, to 1983); University of California, Berkeley, graduated 1923, Phi Beta Kappa; law degree and Ph.D. in political science, 1927, editor-in-chief of the California Law Review; Boalt Hall faculty from 1930; Associate Justice of the Supreme Court of California, 1940 to September 1964; Chief Justice, September 1964 to February 1970; Chair of the Judicial Council, 1964 to 1970; the American Bar Association’s 1972 Code of Judicial Conduct was based largely on the work of a committee he headed. The opinions: Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal.2d 453 (July 5, 1944), on the Supreme Court of California Resources site at Stanford Law School, and Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57 (January 24, 1963), on Justia. Biography: the California Courts’ profile of Chief Justice Traynor (Olson, 1940; Brown, 1964; the Judicial Council; the Code of Judicial Conduct); the University of Virginia School of Law’s biographical note (Park City, Irish immigrants, 1919, 1927, 1930, the tax code, no judicial experience, more than 900 decisions); the Virginia archives record (1900 to 1983); In Memoriam, Roger J. Traynor, 39 Cal.3d (December 7, 1983), as posted by the California Supreme Court Historical Society (the drayman, Phi Beta Kappa, the law review, the Sales and Use Tax Acts, the retirement teaching, the nine hundred opinions, and the quotations from Justices Mosk and Burke, Judge Friendly, Justice Schaefer and Traynor himself); the UC Law San Francisco Traynor collection (his opinions); Steve Leben, Writing Like the Best Judges, Court Review (2015) (the judges Point Taken studies). General information, not legal advice.
