The opinion of the court was delivered by: WEINSTEIN
WEINSTEIN, District Judge.
These two cases arise out of eighteen separate accidents scattered across the nation in which children were injured by blasting caps. Damages are sought from manufacturers and their trade association, the Institute of Makers of Explosives (I.M.E.). The basic allegation is that the practice of the explosives industry during the 1950's -- continuing until 1965 -- of not placing any warning upon individual blasting caps and of failing to take other safety measures created an unreasonable risk of harm resulting in plaintiffs' injuries.
In most instances the manufacturer of the cap is unknown. The question posed is whether a group of manufacturers and their trade association, comprising virtually the entire blasting cap industry of the United States, can be held jointly liable for injuries caused by their product. Our answer is that there are circumstances, illustrated by this litigation, in which an entire industry may be liable for harm caused by its operations.
While the cases are closely linked in their litigation history and underlying legal theory, they differ in several crucial respects. See Hall v. E.I. Du Pont De Nemours & Co., 312 F. Supp. 358 (E.D.N.Y. 1970) for an earlier phase of the litigation. In Chance, the name of the manufacturer who actually produced the cap causing a particular injury is apparently unknown. In Hall it is, plaintiffs allege, known. We turn to Chance first since it presents the more difficult legal problems.
Thirteen children were allegedly injured by blasting caps in twelve unrelated accidents between 1955 and 1959. The injuries occurred in the states of Alabama, California, Maryland, Montana, Nevada, North Carolina, Tennessee, Texas, Washington and West Virginia. Plaintiffs are citizens of the states in which their injuries occurred. They are now claiming damages against six manufacturers of blasting caps and the I.M.E. on the grounds of negligence, common law conspiracy, assault, and strict liability in tort. In addition, two parents sue for medical expenses. Federal jurisdiction is based on diversity of citizenship. 28 U.S.C. § 1332.
While the plaintiffs' injuries occurred at widely varied times and places, the complaint alleges certain features common to them all. Each plaintiff, according to the complaint, "came into possession" of a dynamite blasting cap which was not labeled or marked with a warning of danger, and which could be easily detonated by a child. In each instance an injurious explosion occurred.
The complaint does not identify a particular manufacturer of the cap which caused a particular injury. It alleges that each cap in question was designed and manufactured jointly or severally by the six corporate defendants or by other unnamed manufacturers, and by their trade association, the I.M.E.
Plaintiffs' central contention is that injuries were caused by the defendants' failure to place a warning on the blasting caps, and to manufacture caps which would have been less easily detonated. This failure, according to the plaintiffs, was not the result of defendants' ignorance of the dangerousness of their product to children. The complaint states that the defendants had actual knowledge that children were frequently injured by blasting caps, and, through the trade association, kept statistics and other information regarding these accidents. Recognizing the dangerousness of their product to children, the defendants, through the trade association, used various means -- such as placards and printed notices -- to warn users of the caps and the general public. These measures were allegedly inadequate in light of the known risks of injury. Moreover, defendants are said to have jointly explicitly considered the possibility of labeling the caps, to have rejected this possibility, and to have engaged in lobbying activities against legislation which would have required such labeling. The long-standing industry practice of not placing a warning message on individual blasting caps was, it is urged, the result of a conscious agreement among the defendants, in the light of known dangers, with regard to this aspect of their product.
The six corporate defendants are: E.I. Du Pont De Nemours & Co., Inc. ("Du Pont"), Hercules Powder Co. ("Hercules"), and Atlas Powder Co. ("Atlas"), all citizens of and having their principal places of business in Delaware; American Cyanamid Co. ("Cyanamid"), a citizen of Maine with its principal place of business in New Jersey; Olin Mathieson Chemical Corp. ("Olin"), a citizen of Virginia with its principal place of business in Connecticut; and Austin Powder Co. ("Austin"), a citizen of and having its principal place of business in Ohio. The defendant I.M.E. is an unincorporated association with its principal place of business in New York.
Defendants move to dismiss on the grounds that the plaintiff-children do not state claims upon which relief can be granted. They also request dismissal of the parents' claims for medical expenses as barred by statutes of limitations. Finally, they seek a severance on the grounds of improper joinder and transfer of the severed claims or their outright dismissal on the ground of inconvenient forum. 28 U.S.C. § 1404(a).
The issues common to products liability cases are well known: did the manufacturer (or other supplier) violate a duty of care to plaintiffs, and was the violation a legal or "proximate" cause of plaintiffs' injuries. 2 Harper & James, The Law of Torts §§ 28.1-.2 (1956). Moving to dismiss the complaint, defendants have the burden of showing "beyond doubt" that plaintiff "can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80, 84 (1957).
A central question raised by defendants' motion is whether their parallel safety practices provide a basis for joint liability.
Interlaced with the issues of duty to warn, proximate cause, and joint liability is a conflicts question of considerable complexity: what choice-of-law principles are to be applied in a case such as this one where planning, design, manufacture, and sale of a product occurred in different states, and injury in yet others?
Since, as indicated below, further briefs will be required on the choice-of-law problem, we have, for the purposes of this memorandum, assumed the existence of a national body of state tort law. A growing consensus on the substantive law in this country permits such a gross first approach to the preliminary motions before us since all we need to determine now is whether the plaintiffs might succeed on the law and facts. See, e.g., Wright v. Carter Products, 244 F.2d 53, 56-60 (2d Cir. 1956) (Massachusetts law applicable but general treatises, articles and case law of other states cited on motion to dismiss).
Under both negligence and strict liability standards manufacturers and other suppliers have a duty to users, consumers, and in some circumstances to the general public or portions of it, to produce products with appropriate warnings, instructions, and other safety features. See, e.g., Noel, Manufacturer's Negligence of Design or Directions for Use of a Product, 71 Yale L.J. 816 (1962); Noel, Products Defective Because of Inadequate Directions or Warnings, 23 Sw. L.J. 256 (1969); Rest. 2d Torts § 388, comment e, § 402A, comments j, l (1965) (warnings under negligence and strict liability standards). Defendants' duty of care is basic to liability, and we turn first to that issue.
C. Duty to Warn and Standard of Care
A manufacturer's duty to produce a safe product, with appropriate warnings and instructions where necessary, rests initially on the responsibility each of us bears to exercise care to avoid unreasonable risks of harm to others. See, e.g., 2 Harper & James, The Law of Torts § 28.3 (1956). An "unreasonable risk" in any given situation depends on the balancing of probability and seriousness of harm if care is not exercised against the costs of taking precautions. See, e.g., United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947); 2 Harper & James, supra §§ 16.9, 28.4; Rest. 2d Torts §§ 291-293, 298 (1965).
Activity involving a small likelihood of death or serious injury may require greater and more costly precautions than that involving a higher probability of lesser harm. See, e.g., The Glendola, 47 F.2d 206, 207 (2d Cir. 1931), cert. denied, 283 U.S. 857, 51 S. Ct. 650, 75 L. Ed. 1463 (1931); Rest. 2d Torts § 388, comment n at 309 (1965); 2 Harper & James, The Law of Torts § 16.9 at 931-32 (1956). Where an act involves
a risk of death or serious bodily harm, and particularly if it is capable of causing such results to a number of persons, the highest attention and caution are required even if the act has a very considerable utility. Thus those who deal with firearms, explosives, poisonous drugs, or high tension electricity are required to exercise the closest attention and the most careful precautions, not only in preparing for their use but in using them. Rest. 2d Torts § 298, comment b at 69 (1965).
In most products liability cases the court does not have to make an explicit determination that the defendant owed the plaintiff a duty of reasonable care. The general scope of such a duty is well established: manufacturers must provide products that are reasonably safe for their foreseeable use. See, e.g., MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916); Rest. 2d Torts § 395 (1965); 2 Harper & James, The Law of Torts §§ 28.3-.9 (1956).
In the explosives industry, producers have long been on notice that they have an obligation to users of their products to guard against defects (Dement v. Olin-Mathieson Chemical Corp., 282 F.2d 76, 80 (5th Cir. 1960)) and "to adequately warn a foreseeable purchaser or user of foreseeable and latent dangers upon proper and intended use of [the] product." Littlehale v. E.I. Du Pont De Nemours & Co., 268 F. Supp. 791, 798 (S.D.N.Y. 1966), aff'd, 380 F.2d 274 (2d Cir. 1967). Similarly, those who use or store explosives have been held to a high standard of care, commensurate with the obvious dangers, to maintain storage facilities that are secure against tampering by children. See e.g., Lone Star Gas Co. v. Parsons, 159 Okl. 52, 14 P. 2d 369 (1932); Annot., 10 A.L.R. 2d 22 (1950); 2 Harper & James, The Law of Torts § 20.5 at 1144, n. 34 (1956).
Defendants suggest, nevertheless, that because the plaintiff-children were neither purchasers nor intended users of the caps, their injuries were "unforeseeable" as a matter of law, and hence outside the scope of the duty of reasonable care. While cast in terms of foreseeability -- a term of the experiential world -- the issue is finally one of duty -- a question of law and public policy. Green, The Causal Relation Issue in Negligence Law, 60 Mich. L. Rev 543, 562-569 (1962). Because foreseeability is one of the vectors bearing on the finding of duty, we must analyze the meaning of the term in the context of this case.
"Foreseeability" at this stage of decision includes two related elements. The first is the likelihood or probability of harm if reasonable care is not exercised -- "whether the harm threatened is likely to occur." Noel, Manufacturer's Negligence of Design or Directions for Use of a Product, 71 Yale L.J. 816, 830 (1962). The second element is the manufacturer's actual or constructive knowledge of the risk -- "whether the manufacturer was in a position to foresee the likelihood of such harm." Id. at 847.
The probability of the known risk needed to trigger the duty of reasonable care cannot be expressed in a mathematical formula. Judge Cardozo suggested that "[there] must be knowledge of a danger, not merely possible, but probable." MacPherson v. Buick Motor Co., 217 N.Y. 382, 389, 111 N.E. 1050, 1053 (1916). Since "probabilities" are but quantifications of "possibilities," what is meant in MacPherson is apparently a probability so low that it can be ignored in our everyday world. Judge Learned Hand, discussing foreseeability and scope of reasonable care in the context of proximate cause, utilized much the same formulation: "[The injurious result] has got to be one of those consequences which is not entirely outside the range of expectation or probability, as ordinary men view it." The Mars, 9 F.2d 183, 184 (S.D.N.Y. 1914). Judge Frank, adopting language of the New Hampshire Supreme Court, argued that the proper threshold test of the applicability of reasonable care "is not of the balance of probabilities, but of the existence of some probability of sufficient moment to induce action to avoid it on the part of a reasonable mind." Tullgren v. Amoskeag Mfg. Co., 82 N.H. 268, 276, 133 A. 4, 8 (1926), cited with approval in Hentschel v. Baby Bathinette Corp., 215 F.2d 102, 106 (2d Cir. 1954) (Frank, J., dissenting), cert. denied, 349 U.S. 923, 75 S. Ct. 663, 99 L. Ed. 1254 (1955), and in Pease v. Sinclair Refining Co., 104 F.2d 183, 186 (2d Cir. 1939); cf. 2 Harper & James, The Law of Torts § 18.2 at 1018-1026, particularly at 1020 (1956).
Whatever the verbal formulation, the concept of "foreseeable risk" is universally taken to mean the foreseeability of a general kind or type of risk, rather than the foreseeability of the precise chain of events leading to the particular injury in question. See, e.g., Pease v. Sinclair Refining Co., 104 F.2d 183, 186-87 (2d Cir. 1939); 2 Harper & James, The Law of Torts § 18.2 at 1026, § 20.5 at 1147-49 (1956).
The related issue of whether the manufacturer was in a position to foresee the risk turns on whether "the manufacturer knew, or through the exercise of reasonable care should have known, of the existence of the danger." Dillard & Hart, Products Liability: Directions for Use and the Duty to Warn, 41 Va. L. Rev. 145, 156-57 (1955). Plaintiffs must demonstrate actual notice to the manufacturer of particular kinds of risks (see, e.g., Noel v. United Aircraft Corp., 219 F. Supp. 556, 568-69 (D. Del. 1963), aff'd in pertinent part, 342 F.2d 232 (3d Cir. 1965), or reasonable inferences from known characteristics of the product and its use. See, e.g., Larsen v. General Motors Corp., 391 F.2d 495, 501-505 (8th Cir. 1968); Simpson Timber Co. v. Parks, 369 F.2d 324 (9th Cir. 1966) and 369 F.2d 324, 333-35 (9th Cir. 1966) (Browning, Hanley, Merrill, and Duniway, JJ., dissenting), vacated sub nom. Parks v. Simpson Timber Co., 388 U.S. 459, 87 S. Ct. 2115, 18 L. Ed. 2d 1319 (1967), discussed in Noel, Products Defective Because of Inadequate Directions or Warnings, 23 Sw. L.J. 256, 275-77 (1969); see also Noel, Manufacturer's Negligence of Design or Directions for Use of a Product, 71 Yale L.J. 816, 834-36, 856-66 (1962).
The plaintiffs' injuries in this case are within the range of reasonable expectation and probability. They are likely to occur in the absence of reasonable care. The manufacturer has capacity to foresee them. Plaintiffs allege that the manufacturers not only "had reason to know," but that they actually knew, through information collected by the trade association, that children were injured in accidents involving blasting caps. According to statistics submitted by the plaintiffs, the number of such accidents between 1955 and 1959 which were known to the manufacturers ranged from 86 to 137 per year. See statistical tables said to be based on I.M.E. data submitted as Exhibits 2A and 2B, Plaintiffs' Memorandum in Opposition, August 26, 1971, in Hall v. Du Pont, 69-C-273.
Defendants do not deny that they had knowledge of these accidents. They claim to have taken all reasonable feasible steps to reduce the risk of their occurrence. Moreover, they argue that they did not deal with plaintiffs, never saw them, and are in court today only through a third party's carelessness, thus invoking (in part) the familiar doctrine that limits a manufacturer's liability to injuries caused by his product when put to its "intended use."
A manufacturer's liability for failure to exercise reasonable care ordinarily extends only to "those who use [the product] for a purpose for which the manufacturer should expect it to be used and . . . those whom [the manufacturer] should expect to be endangered by its probable use" when "physical harm is caused to them by [the product's] lawful use in a manner and for a purpose for which it is supplied." Rest. 2d Torts § 395 (1965). Comment j to section 395 of the Second Restatement of Torts, titled "Unforeseeable use or manner of use," explains that:
The liability stated in this Section is limited to persons who are endangered and the risks which are created in the course of uses of the chattel which the manufacturer should reasonably anticipate. In the absence of special reason to expect otherwise, the maker is entitled to assume that his product will be put to a normal use, for which the product is intended or appropriate; and he is not subject to liability when it is safe for all such uses, and harm results only because it is mishandled in a way which he has no reason to expect, or is used in some unusual and unforeseeable manner.
See also Mazzi v. Greenlee Tool Co., 320 F.2d 821, 823 (2d Cir. 1963) (applying New York law and collecting cases and authorities).
This doctrine has been applied in two cases involving explosives manufacturers to insulate them from liability when their products, manufactured for specialized purposes, came into the possession of untrained third parties who were injured while using them. See Littlehale v. E.I. Du Pont De Nemours & Co., 268 F. Supp. 791 (S.D.N.Y. 1966), aff'd, 380 F.2d 274 (2d Cir. 1967); Harper v. Remington Arms Co., 156 Misc. 53, 280 N.Y.S. 862 (Sup. Ct. 1935), aff'd mem., 248 App. Div. 713, 290 N.Y.S. 130 (1st Dep't 1936), leave to appeal denied, 272 N.Y. 675 (1936).
Despite the general validity of the intended use principle, it does not warrant a conclusion that the blasting cap manufacturers in this case had no duty of reasonable care to the plaintiff-children. The doctrine of intended use is an illustration of the broader doctrine of foreseeability. A manufacturer cannot ignore a probable "misuse" of his product. This interpretation is shared by many courts including the Fourth Circuit in Spruill v. Boyle-Midway, Inc., 308 F.2d 79 (1962), the Eighth Circuit in Larsen v. General Motors Corp., 391 F.2d 495 (1968), and the Second Circuit in Mazzi v. Greenlee Tool Co., 320 F.2d 821 (1963). As the Fourth Circuit pointed out, in a case involving a child's death from eating furniture polish,
"Intended use" is but a convenient adaptation of the basic test of "reasonable foreseeability" framed to more specifically fit the factual situations out of which arise questions of a manufacturer's liability for negligence. "Intended use" is not an inflexible formula to be apodictically applied to every case. Normally a seller or manufacturer is entitled to anticipate that the product he deals in will be used only for the purposes for which it is manufactured and sold; thus he is expected to reasonably foresee only injuries arising in the course of such use.
However, he must also be expected to anticipate the environment which is normal for the use of his product and where, as here, that environment is the home, he must anticipate the reasonably foreseeable risks of the use of his product in such an environment. These are risks which are inherent in the proper use for which his product is manufactured. Thus where such a product is an inherently dangerous one, and its danger is not obvious to the average housewife from the appearance of the product itself, the manufacturer has an obligation to anticipate reasonably foreseeable risks and to warn of them, though such risks may be incidental to the actual use for which the product was intended. Spruill v. Boyle-Midway, Inc., 308 F.2d 79, 83-84 (1962).
Applying this analysis to the field of automobile safety, the Eighth Circuit concluded that
Automobiles are made for use on the roads and highways in transporting persons and cargo to and from various points. This intended use cannot be carried out without encountering in varying degrees the statistically proved hazard of injury-producing impacts of various types. The manufacturer should not be heard to say that it does not intend its product to be involved in any accident when it can easily foresee and when it knows that the probability over the life of its product is high, that it will be involved in some type of injury-producing accident. Larsen v. General Motors Corp., 391 F.2d 495, 501-502 (1968).
The Second Circuit endorsed a similar approach in Mazzi, when it held that the evidence in the case would support a jury verdict "that such usage was intended or that defendant should have reasonably foreseen that its [product] would be so used. . . ." Mazzi v. Greenlee Tool Co., 320 F.2d 821, 825 (1963). See also 2 Harper & James, The Law of Torts § 28.4 at 1541, n. 2 (1956) and Supplement at 215 (1968).
In the context of this approach to the problem of intended use, we find the complaint in this case easily distinguishable from the plaintiffs' position in Littlehale v. E.I. Du Pont De Nemours & Co., 268 F. Supp. 791 (S.D.N.Y. 1966), aff'd, 380 F.2d 274 (2d Cir. 1967) and in Harper v. Remington Arms Co., 156 Misc. 53, 280 N.Y.S. 862 (Sup. Ct. 1935), aff'd mem., 248 App. Div. 713, 290 N.Y.S. 130 (1st Dep't 1936). In Littlehale defendant Du Pont had manufactured blasting caps under government contract for use by Army Ordnance personnel. The trial court found that "the user [Army Ordnance] was as well or more fully informed of the hazards involved and the correct methods of use as was the manufacturer" (268 F. Supp. at 803), and hence the manufacturer was under no duty to warn its customer of "generally known risks." 268 F. Supp. at 798. Such a duty could not arise, the trial court concluded, "at some later date by reason of some unforeseeable disposition of the product by [the] initial purchaser." 268 F. Supp. at 803. In reaching this conclusion, the trial court stressed that
[this] is not a case involving a product manufactured for sale or resale to the general public. It is not a case involving negligence in the manufacture, design or use of materials. It is not a case where the manufacturer had any freedom of choice as to manufacture, design, or use of materials. It is not a case where evidence has been submitted upon which foreseeability of the particular use involved herein could be predicated. 268 F. Supp. at 801-02 (citations omitted).
In these circumstances, the Second Circuit found the trial court justified in concluding that "as a matter of law du Pont . . . could not have foreseen that its detonators would be used by a person untrained in the handling of such explosives and in a manner that was never intended." Littlehale v. E.I. Du Pont De Nemours & Co., 380 F.2d 274, 276 (2d Cir. 1967).
Plaintiffs' allegations in this case present a different picture. The complaint promises submission of evidence that the manufacturers not only could have foreseen, but actually did foresee that "[their] detonators would be used by [persons] untrained in the handling of explosives and in a manner that was never intended." Id. In contrast to the rigid wartime specifications involved in the production of the caps in Littlehale, the defendants in this case apparently had complete freedom of choice as to manufacture, design, and use of materials, and exercised that choice, in the words of a Du Pont employee, in a manner "keyed to the needs of our customers." Ramsdell affidavit, Sept. 3, 1971, p. 3. While no allegations have been made about whether the caps involved in this case were manufactured for sale to "the general public," it is clear that their use and circulation was expected to be considerably more widespread than purchase and use by a specialized government agency. Cf. 34 Fed. Reg. 5838 (March 28, 1969) (warning re blasting caps to "Keep out of the reach of children"). Because of these differences, we cannot conclude, as did the trial court in Littlehale, that (1) there is no factual dispute "as to the identity of the intended and actual purchaser [or user]" and (2) that, as a matter of law, plaintiffs are excluded from the foreseeable "orbit of danger." Littlehale v. E.I. Du Pont De Nemours & Co., 268 F. Supp. 791, 801 (S.D.N.Y. 1966).
The Harper case is distinguishable on similar grounds. In that case the defendant manufacturer had produced shot-gun shells of special explosive force for use in arms testing and they were marked to warn the class who would use them for this purpose. A jury verdict for the plaintiff was reversed because the plaintiff "failed to show that he was a person whom the defendant might reasonably have anticipated would use these shells" and hence was not owed a duty of warning and reasonable care by the manufacturer. Harper v. Remington Arms Co., 156 Misc. 53, 58, 280 N.Y.S. 862, 868 (Sup. Ct. 1935), aff'd mem., 248 App. Div. 713, 290 N.Y.S. 130 (1st Dep't 1936).
The allegations in the present case preclude a decision at this stage that children were not foreseeable users of blasting caps. Even if the blasting cap manufacturers' own definition of their product's intended use were accepted as controlling, plaintiffs have alleged that the manufacturers had, in the words of comment j of section 395 of the Second Restatement of Torts, "special reason to expect" unusual uses of their product by children. A manufacturer's actual knowledge of unusual risks is the archetype reason for extending his duty of reasonable care beyond the scope of his product's normally intended use. See, e.g., Simpson Timber Co. v. Parks, 369 F.2d 324, 327-28 (9th Cir. 1966), vacated on other grounds sub nom. Parks v. Simpson Timber Co., 388 U.S. 459, 87 S. Ct. 2115, 18 L. Ed. 2d 1319 (1967). As the Eighth Circuit has pointed out, the Simpson case now stands for the broad proposition that a manufacturer has a duty of reasonable care with respect to unintended uses "where the injury resulting from that unintended use was foreseeable or should have been anticipated." Larsen v. General Motors Corp., 391 F.2d 495, 501 (1968) (citations omitted) (emphasis supplied).
Application of general principles of foreseeability and reasonable care to unintended uses is not peculiar to modern products liability cases. A similar approach can be found in numerous cases decided in the nineteenth and early twentieth centuries involving children playing with railroad turntables, dynamite blasting caps, and other dangerous instruments and machines. Even in an era when landowners had very limited duties of care to trespassers, many courts recognized that the likelihood of children playing with dangerous instruments was sufficiently foreseeable to impose a duty of care on the owners to provide appropriate locks, fences, notices, storage sheds, and other safety devices. See, e.g., Sioux City and P.R. Co. v. Stout, 84 U.S.(17 Wall.) 657, 21 L. Ed. 745 (1873) (affirming jury finding of owner's negligence to children in failing to provide turntable lock); Edgington v. Burlington, C.R. & N. Ry. Co., 116 Iowa 410, 90 N.W. 95 (1902) (discussing numerous aspects of foreseeable danger to children from turntables); Lone Star Gas Co. v. Parsons, 159 Okl. 52, 14 P. 2d 369 (1932) (finding liability of landowner to trespassing children for negligent storage of blasting caps); see also Lynch v. Nurdin, 1 Q.B. 29, 113 Eng. Rep. 1041 (1841) Prosser, Law of Torts § 59 at 364-376 (4th ed. 1971); 2 Harper & James, The Law of Torts § 18.2 at 1020 (1956).
The doctrines evolved in these cases are now embodied in section 339 of the Second Restatement of Torts. According to Dean Prosser's commentary on this section and its judicial antecedents, the foreseeability elements of landowners' liability to children are very similar to the foreseeability issues involved in manufacturers' liability for unintended uses. The possessor must know "or have reason to know that children are likely to trespass," and the condition in question "must be one which the occupiers should recognize as involving an unreasonable risk of harm to such children." Prosser, Law of Torts § 59 at 368, 369 (4th ed. 1971). Whether failing to guard against the known risk is unreasonable is in turn determined by the general negligence principles of probability (including obviousness), seriousness of harm and cost of taking appropriate precautions. Id. at 369-71, 375-76.
Plaintiffs' allegations provide a basis for finding that injuries to children were a foreseeable risk of the use and circulation of blasting caps, and that this risk was known to, or should have been known to, the individual manufacturers. It must be emphasized that we are not holding, at this stage, that the defendants in this case had a duty of reasonable care to each of the plaintiff-children. That decision can be made only after presentation of facts relevant to the risk and cost analysis, and determination of any conflict of laws issues.
(ii) Costs and Social Utility
While foreseeability of risk is an essential element of a finding that a manufacturer is under a duty of care to persons in a particular position, it is not the only element in the decision. An important factor is the cost of taking precautions against the danger. The declaration that a duty or standard of reasonable care is applicable to an injury-causing situation involves
various and sometimes delicate policy judgments. The social utility of the activity out of which the injury arises, compared with the risks involved in its conduct; the kind of person with whom the actor is dealing; the workability of a rule of care, especially in terms of the parties' relative ability to adopt practical means of preventing injury; the relative ability of the parties to bear the financial burden of injury and the availability of means by which the loss may be shifted or spread; the body of statutes and judicial precedents which color the parties' relationship; the prophylactic effect of a rule of liability; . . . and finally, the moral imperatives which judges share with their fellow citizens -- such are the factors which play a role in the determination of duty. Raymond v. Paradise Unified School Dist. of Butte County, 218 Cal. App. 2d 1, 8, 31 Cal. Rptr. 847, 851-52 (3d Dist. 1963).
See also Lone Star Gas Co. v. Parsons, 159 Okl. 52, 56-57 14 P. 2d 369, 373-74 (1932); Chicago B. & Q.R. Co. v. Krayenbuhl, 65 Neb. 889, 902-04, 91 N.W. 880, 882-83 (1902); Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15 (1953).
In many situations the "cost" or "social utility" side of the initial calculus of duty is relatively clear-cut. For example, the cost of printing and attaching labels and other warning devices is often regarded as trivial compared to the risk of any substantial harm. See, e.g., Butler v. L. Sonneborn Sons, Inc., 296 F.2d 623, 625-26 (2d Cir. 1961); Wright v. Carter Products, Inc., 244 F.2d 53, 59 (2d Cir. 1957); Pease v. Sinclair Refining Co., 104 F.2d 183, 186 (2d Cir. 1939).
This may not be such a case. The defendants have indicated that there was doubt about the technical feasibility of labeling individual blasting caps during the 1950's, or of producing caps which could be less easily detonated by children, and that in any event the costs would have been substantial. Such facts, if proven, are clearly relevant to the question of defendants' duty of care, but they do not warrant a judgment in their favor on a motion to dismiss. Where the foreseeable risks of a product's use are sufficiently serious -- particularly to large numbers of people -- courts have not hesitated to require manufacturers to face substantial costs in warnings, testing, inspection, and safety design. See, e.g., Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968); Manos v. Trans World Airlines, 324 F. Supp. 470 (N.D. Ill. 1971); Noel v. United Aircraft Corp., 219 F. Supp. 556 (D. Del. 1963), aff'd in pertinent part, 342 F.2d 232 (3d Cir. 1965); Ambriz v. Petrolane Ltd., 49 Cal. 2d 470, 319 P. 2d 1 (1957), reversing 312 P. 2d 11, 17 (4th Dist. Ct. App. 1957). As with the issue of foreseeability, the issue of costs, social utility, and potential practical remedies can only be decided after a full factual presentation and analysis of applicable law.
(b) Duty to Warn and Proximate Cause
In addition to showing that warnings (or other safety features) were required by the standard of reasonable care and that defendants failed to give such warnings or failed to give them in an adequate manner, plaintiffs must establish a causal connection. They must show (1) that defendants' failure to warn was a "cause in fact" of their injuries -- i.e., the warnings might have averted the particular accident -- and (2) that defendants' failure to warn was a "proximate cause" of their injuries -- i.e., intervening events, remoteness or general policy considerations do not prevent a finding of liability. See, e.g., Green, The Causal Relation Issue in Negligence Law, 60 Mich. L. Rev. 543, 548-569 (1962); 2 Harper & James, The Law of Torts §§ 20.1-.6 at 1108-1161 (1956) and Supplement at 92-104 (1968). But cf. Harper and James, id. Supplement at 93 ("the dichotomy is not a clear one").
Existence of the I.M.E. safety program and the possibility of intervening acts by others are relevant to the question of defendants' liability for failure to warn, but they do not entitle defendants at this stage to a judgment as a matter of law. The practice of the explosives industry of supplying warnings to customers and users through notices printed on and inserted in packages of blasting caps has already been the subject of litigation. In Eck v. E.I. Du Pont De Nemours & Co., 393 F.2d 197 (7th Cir. 1968), the Seventh Circuit held that whether such warnings had adequately served notice on an injured workman, "either personally or vicariously, raised an issue of fact which the court should have submitted to the jury." 393 F.2d 197, 201. The adequacy of printed warnings and the I.M.E. safety program is even less clear-cut in this case, where the manufacturers cannot claim that children, in contrast to workmen using blasting caps, are aware of risks generally known in the trade. Cf. ...