Also known as: bystanders
Written by attorneys — see sources below.
A person present at an event who does not participate directly in it. In products liability based on negligence a manufacturer owes a duty of care to any foreseeable plaintiff including bystanders even without contractual privity.
Bianca Baker stood near a loading dock when a forklift sold by Brighton Manufacturing toppled because of a faulty wheel. The wheel broke during ordinary use and struck her. She sued the manufacturer even though she had never purchased or used the forklift. The court permitted recovery because the manufacturer owed a duty to foreseeable bystanders.
Brian Bailey watched Manor Drug Stores buy shares after reading a prospectus but never purchased any himself. When the stock fell he claimed the prospectus misled him into inaction. The court dismissed the suit because only actual purchasers or sellers may sue under the Birnbaum rule.
In 1963 the United States filed a civil antitrust action against Old Blue Chip Stamp Co., a company providing trading stamps to retailers, and nine retailers who owned 90 percent of its shares. In 1967 the action was terminated by entry of a consent decree. The decree contemplated a plan of reorganization whereby Old Blue Chip would merge into a newly formed corporation, Blue Chip Stamps. The holdings of the majority shareholders would be reduced. The new company would offer a substantial number of its shares of common stock to retailers who had used the stamp service in the past but were not shareholders. The offering was to be proportional to past stamp usage and packaged in units consisting of common stock and debentures. The reorganization plan was carried out. The offering was registered with the Securities and Exchange Commission under the Securities Act of 1933. A prospectus was distributed to all offerees as required by section 5 of that Act. Somewhat more than 50 percent of the offered units were actually purchased. In 1970, two years after the offering, Manor Drug Stores, a former user of the stamp service and therefore an offeree of the 1968 offering, filed suit in the United States District Court for the Central District of California against Old and New Blue Chip, eight of the nine majority shareholders of Old Blue Chip, and the directors of New Blue Chip. The complaint alleged that the prospectus prepared and distributed in connection with the offering was materially misleading in its overly pessimistic appraisal of Blue Chip's status and future prospects. It further alleged that Blue Chip intentionally made the prospectus overly pessimistic. This was done to discourage the offerees from accepting the offer. The goal was so that the rejected shares might later be offered to the public at a higher price. Class members because of and in reliance on the false and misleading prospectus failed to purchase the offered units. The complaint sought on behalf of the alleged class some $21,400,000 in damages representing the lost opportunity to purchase the units, the right to purchase the previously rejected units at the 1968 price, and some $25,000,000 in exemplary damages. The district court dismissed the complaint for failure to state a claim upon which relief might be granted. On appeal to the United States Court of Appeals for the Ninth Circuit, a divided panel reversed the district court. After the Ninth Circuit denied rehearing en banc, the Supreme Court granted certiorari.
View caseBoubacar Bah stood beside a highway when a new car sold by Bloomfield Motors veered off the road because of a defective steering mechanism. The car struck him. The court held that the implied warranty of merchantability extended to bystanders within the zone of danger.
In May 1955, Claus H. Henningsen purchased a new 1955 Plymouth Plaza Club Sedan from Bloomfield Motors, Inc., an authorized De Soto and Plymouth dealer for Chrysler Corporation. Mr. Henningsen intended the car as a Mother's Day gift for his wife, Helen Henningsen, and communicated that intention to the dealer. He alone signed a one-page printed purchase-order form. The reverse side contained, in fine six-point script type, a warranty clause limiting the manufacturer's obligation to replacement of defective parts within ninety days or four thousand miles and disclaiming all other warranties, express or implied. The front of the form contained two even smaller paragraphs directing attention to the back-side conditions. The form was a standardized document prepared by the manufacturer and used by all its dealers. No one called the fine-print provisions to Mr. Henningsen's attention, and he did not read them. The car was delivered on May 9, 1955, after the dealer performed the items listed in Chrysler's New Car Preparation Service Guide. On May 19, 1955, while Mrs. Henningsen was driving north on Route 36 in Highlands, New Jersey, at twenty to twenty-two miles per hour on a smooth, paved highway, she heard a loud noise from the front of the car. The steering wheel spun in her hands and the vehicle veered sharply into a highway sign and brick wall. The car had been driven only 468 miles, had required no servicing, and had exhibited no unusual behavior before the accident. An insurance appraiser with eleven years of experience examined the wrecked vehicle and concluded that something in the steering mechanism from the wheel down to the front wheels had broken or dropped off. Plaintiffs also presented expert testimony that the steering failure resulted from a latent manufacturing defect that could not have been discovered by reasonable inspection. The negligence counts against both defendants were dismissed at trial. The case was submitted to the jury solely on the implied-warranty claims. The jury returned verdicts for both plaintiffs against Chrysler Corporation and Bloomfield Motors, Inc. Defendants appealed and plaintiffs cross-appealed from the dismissal of the negligence claim. The Supreme Court of New Jersey certified the matter directly before consideration by the Appellate Division.
View caseBrianna Burke worked for the county social services department and knew Joshua faced repeated beatings from his father. After the department returned Joshua to the home he suffered permanent brain damage. The dissent argued the state had actively intervened and therefore could not claim it was merely a bystander.
Joshua DeShaney was born in 1975. In 1980, a Wyoming court granted his parents a divorce and awarded custody of Joshua to his father, Randy DeShaney, who then moved with the child to Winnebago County, Wisconsin. In January 1982, the Winnebago County Department of Social Services became aware that Joshua might be a victim of child abuse after he was admitted to a local hospital with multiple bruises and abrasions. The examining physician notified DSS. A caseworker interviewed Randy DeShaney and visited the home, observing suspicious injuries on Joshua's head, but concluded there was insufficient evidence of abuse to retain him in court custody and returned him to his father while recommending counseling and preschool enrollment. Over the next two years, Joshua was repeatedly treated for suspicious injuries at local hospitals, with physicians notifying DSS on multiple occasions. Caseworkers conducted regular visits, noted additional injuries, received reports from emergency room personnel and neighbors, and at one point convened a Child Protection Team that decided against retaining custody, yet consistently returned Joshua to his father's care after determining insufficient evidence existed for court intervention. In March 1984, Randy DeShaney beat Joshua so severely that the child fell into a coma and suffered permanent brain damage requiring lifelong institutionalization for profound mental retardation. Randy DeShaney was later tried and convicted of child abuse. Joshua and his mother filed suit under 42 U.S.C. § 1983 against Winnebago County, its Department of Social Services, and two social workers in the United States District Court for the Eastern District of Wisconsin, claiming a deprivation of liberty without due process. The district court granted summary judgment for the respondents. The Court of Appeals for the Seventh Circuit affirmed. The Supreme Court granted certiorari.
View caseBella Barnes attended a Marine funeral where Westboro picketers displayed signs stating God hates the deceased. A reasonable bystander viewing the signs would have understood them to claim the Marine was homosexual. The court considered that interpretation when evaluating the speech claim.
Marine Lance Corporal Matthew Snyder was killed in action in Iraq. His father, Albert Snyder, arranged for the funeral to be held in Westminster, Maryland. Members of the Westboro Baptist Church, an unincorporated association founded by Fred Phelps, learned of the funeral through local newspapers and decided to picket it to communicate their belief that God punishes the United States for its tolerance of homosexuality. On the day of the funeral, Westboro members displayed placards on public land approximately 1,000 feet from the church where the service was held. The signs included messages such as "God Hates the USA," "Thank God for Dead Soldiers," "Pope in Hell," "Priests Rape Boys," "You’re Going to Hell," and "God Hates Fags." The picketing took place for about 30 minutes before the funeral began. The funeral procession passed within 200 to 300 feet of the picketers. Church members also posted an online "epic" that discussed Matthew Snyder’s funeral and criticized his parents. Albert Snyder filed a diversity action in the United States District Court for the District of Maryland against Fred Phelps, his daughters, and the Westboro Baptist Church. The suit alleged claims for intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. A jury found for Snyder and awarded $2.9 million in compensatory damages and $8 million in punitive damages. The district court reduced the punitive damages award to $2.1 million but left the verdict otherwise intact. The Fourth Circuit reversed the judgment, holding that Westboro’s statements were protected by the First Amendment. The Supreme Court granted certiorari to review whether the First Amendment shields the church members from tort liability for their picketing speech.
View caseBei Bai relied on an audit report prepared by Arthur Young for a company in which she held no investment interest. When the company collapsed she sued the accountants claiming the report was negligent. The court limited liability to intended beneficiaries and denied recovery to mere bystanders.
Osborne Computer Corporation was founded in 1980 by entrepreneur Adam Osborne and began manufacturing the Osborne I portable personal computer for the mass market, with shipments starting in 1981. By fall 1982, sales of the company's sole product had reached $10 million per month, making the company one of the fastest growing enterprises in the history of American business. In 1981 and again in 1982, the company retained Arthur Young & Company to audit its financial statements and issue audit reports. Arthur Young issued unqualified audit opinions on the company's 1981 and 1982 financial statements. The 1982 opinion was issued on February 11, 1983, appeared on Arthur Young's letterhead addressed to the company, and 100 copies of the professionally printed opinion were personally delivered to the company. The 1982 financial statements reported a modest net operating profit of $69,000 on sales of more than $68 million. In late 1982 the company postponed a planned initial public offering and instead issued warrants to investors in exchange for bridge financing loans or letters of credit. Plaintiffs, a group that included individuals as well as pension and venture capital funds, invested in the company in early 1983; one plaintiff, Robert Bily, purchased 37,500 shares of stock from Adam Osborne for $1.5 million. With one exception, plaintiffs testified that they made their investments in reliance on Arthur Young's unqualified 1982 audit opinion. After the warrant transaction closed on April 8, 1983, sales declined sharply because of manufacturing problems with the company's new Executive model computer, the public offering never occurred, and the company filed for bankruptcy on September 13, 1983, causing plaintiffs to lose their investments. Plaintiffs brought separate lawsuits against Arthur Young in Santa Clara County Superior Court that were consolidated for trial. Plaintiffs' expert witness identified more than 40 deficiencies in the 1982 audit amounting to gross professional negligence, including an understatement of liabilities by approximately $3 million that turned the reported $69,000 profit into a loss of more than $3 million, and testified that Arthur Young had discovered but failed to disclose material weaknesses in the company's internal accounting controls. After a 13-week trial the jury returned a verdict for plaintiffs on the professional negligence claim and awarded approximately $4.3 million in compensatory damages, but found for Arthur Young on the fraud and negligent misrepresentation claims. The trial court granted Arthur Young's motion for judgment notwithstanding the verdict on the negligence claim. The Court of Appeal reversed the judgment in favor of Arthur Young. The Supreme Court of California granted review.
View caseYes. A manufacturer owes a duty of due care to any foreseeable plaintiff including bystanders even without privity.
Supporting sources
A plaintiff classified as a bystander rather than a direct victim faces stricter limitations on recovery for negligent infliction of emotional distress.
A party may obtain ordinary work product if it shows substantial need and cannot obtain the substantial equivalent without undue hardship.
Supporting sources