One Step Forward, Two Steps Back: How the New York Appellate Division Slowed the Progress of Judge Cardozo’s Effort in Macpherson v. Buick Motor Co. To End Privity’s Stranglehold Over Negligence Claims in Product Injury Cases

Authors

• Jeffrey A. Van Detta

Abstract

This article aims to tell the story of how the various Departments of the New York State Appellate Division sometimes helped—and just as often hindered—the development of the product injury law in the wake of MacPherson v. Buick Motor Co. (1916). Hailed for loosening the privity requirement that barred persons injured by products from suing manufacturers and suppliers for negligence, MacPherson has become the stuff of legal legend. No one put it more picturesquely than Dean William L. Prosser, who in a justly famous law review article described privity as a “citadel” and presented MacPherson’s author, Judge Benjamin Nathan Cardozo, as a judicial superhero, leaping outdated law in a single bound: “Cardozo, wielding a mighty axe, burst over the ramparts, and buried the general rule under the exception.”1 But just as Rome didn’t decline and fall in as memorably wrought as MacPherson. While Prosser’s larger-than life legend of MacPherson has endured, this legend, like many myths, is incomplete. It omits the real struggle of MacPherson to live up either to the myth or to its initial promise. Particularly noteworthy is the difficult treatment MacPherson got in New York’s four Appellate Divisions, whose decisions grappling with MacPherson over the next thirty years establish that the tale is not one of the “mighty axe.” Instead, we find an ox-cart’s slogging journey, wheels laden with heavy mud, fighting to take one step forward to every two steps back. This slow progress in the Appellate Divisions contrasts sharply with the more rapid embrace MacPherson’s full implications enjoyed in other appellate courts, not only in many other American states and the federal system, but also in common-law courts abroad. Indeed, MacPherson’s journey through the New York Appellate Divisions demonstrates that traditional accounts of doctrinal progress may not adequately account for the profound role that mid-level appeals courts play in the timeline and scope of what later comes to be seen as a legal revolution. MacPherson’s struggle—one step forward, two steps back—also illuminates the origins and vital role of mid-level appellate courts in America during the twentieth century, whose legacy continues into the twenty-first.

Recommended Citation

Van Detta, Jeffrey A. (2026) "One Step Forward, Two Steps Back: How the New York Appellate Division Slowed the Progress of Judge Cardozo’s Effort in Macpherson v. Buick Motor Co. To End Privity’s Stranglehold Over Negligence Claims in Product Injury Cases," Touro Law Review: Vol. 41: No. 1, Article 37.
Available at: https://digitalcommons.tourolaw.edu/lawreview/vol41/iss1/37