Thank You For Submiting Feedback!
The determination whether in a specific case a defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm.
Appellant Zayda Hanberry suffered injuries while wearing shoes that were advertised in a magazine published by respondent Hearst Corporation. In its advertisements, respondent issued an endorsement of the shoes. Appellant claimed that she relied on respondent's representations, and that respondent was negligent in endorsing the shoes, which were not as represented in respondent's advertisements. The trial court entered judgment in favor of the respondent. Appellant sought review of the decision.
May the respondent, which endorsed a defective product, be held liable to the appellant buyer?
Under a balancing test, the court determined that respondent was under a duty to use ordinary care in endorsing the shoes. Factors examined under the test included the foreseeability of harm to appellant, the connection between respondent's conduct and the injury suffered, and the policy of preventing future harm. Respondent's duty existed despite the lack of privity of contract between appellant and respondent. Since respondent represented to the public that it possessed superior knowledge of the product it endorsed, respondent was liable for its misrepresentations, regardless of whether the misrepresentations were of fact or opinion.