(concurring specially).
I quite agree that the evidence is insufficient to show that the appellee’s product is injurious to the normal person who uses it for its intended purposes. And, the appellant’s positive and specific denial that her injuries resulted from her unusual susceptibility to ammonium thio-glycolate, leaves me without tenable basis for the advancement of my thesis that the appellee, having knowledge of the injurious effect of ammonium thioglycolate to the unusually susceptible or allergic, owes such persons a duty to appropriately warn of the potential dangers in the absence of which he is liable either in warranty or tort. , ,
The trial court’s judgment n. o. v. is based squarely on the conclusion that the appellant was an “unusually susceptible individual * * * not a member of a class expected to be affected by the use of the product.” If I could agi'ee with this conclusion, I should have no difficulty agreeing to the opinion of the court, for I freely concede that the rule of law should not be extended to protect one isolated individual out of literally millions who use the product without harmful consequences. And this is so whether we approach the problem of liability subjectively through what to me is the erroneous theory of probable cause or foreseeability; or what to me is the correct objective inquiry, whether the rule of law ought to extend protection to the allergic or unusually susceptible by the imposition of a duty to warn of known potential dangers. To borrow the words of Mr. Justice Wade specially concurring in Bennett v. Pilot Products Co., 120 Utah 474, 235 P.2d 525, 528, 26 A.L.R.2d 958, 962, “Whether the producer of a product owes its allergic customers a duty to warn them against its possible ill effects is * * * [a] question which has nothing to do with reasonable anticipation or foreseeability and to confuse these two concepts does not add to clarity.” See also Green, Rationale of Proximate Cause, § 3, p. 11.
From the evidence in this case, the jury might well have found that the am*899monium thioglyeolate contained in this cold wave solution is harmful to a small percentage of persons when used initially or cumulatively for its intended purposes. Indeed, the medical reports of record show a number of case histories of harmful results to the users of cold wave solutions containing six percent or more of ammonium thioglyeolate. And, there are at least two adjudicated cases involving the manufacturer’s liability to unusually susceptible users of a product containing this and kindred ingredients. Bennett v. Pilot Products Co., supra; Briggs v. National Industries, 92 Cal. App.2d 542, 207 P.2d 110. In those cases, liability was denied as a matter of law, based upon the insufficiency of the evidence to show any reasonable foreseeability of harm to the individual plaintiff. Knowledge, either actual or constructive, was said to be the touchstone of liability, and the manufacturer was not legally charged with knowledge that the normal use of his product would injuriously affect any legally cognizable number of persons.
Other courts have denied liability of the manufacturer for harmful consequences from the use of his product on the factual premise that the injury was due to the “buyer’s individual idiosyncrasy”, Barrett v. S. S. Kresge Co., 144 Pa.Super. 516, 19 A.2d 502, 503; or constitutional peculiarities. See Flynn v. Bedell Co., 242 Mass. 450, 136 N.E. 252, 27 A.L.R. 1504; Zager v. F. W. Woolworth Co., 30 Cal.App.2d 324, 86 P.2d 389. The rationale of these cases has led to what now seems to be the weight of authority to the effect that a manufacturer of a product owes no legal duty, either in warranty or tort, to the allergic plaintiff. See cases collected Annotations, 121 A.L.R. 464; 26 A.L.R.2d 963.
But where the proof shows that “some”, or even a “small proportion”, will be injuriously affected by the use of a manufacturer’s product, some courts have recognized the duty to warn of the known or imputed dangers at the risk of liability. See Bianchi v. Denholm & McKay Co., 302 Mass. 469, 19 N.E.2d 697, 121 A.L.R. 460; Zirpola v. Adam Hat Stores, 122 N.J.L. 21, 4 A.2d 73; Reynolds v. Sun Ray Drug Co., 135 N.J.L. 475, 52 A.2d 666.
The difficulty lies in the failure of the law to recognize the allergic or unusually susceptible plaintiff as a class of people to whom a manufacturer owes a legal duty to warn of potential dangers. Once the allergic plaintiff is recognized as one of a class of “some” people, the consequent legal duty becomes too plain for doubt. Science and medicine have now recognized the allergic and hyper-sensitive as a definite class of people, presenting physiological and biochemical problems arising out of the use of and contact with the products of advanced chemistry. See Cooke, Allergy in Theory and Practice; Feinberg, Allergy in Practice. If the law is to keep apace of the socialistic problems wrought by science and technology, it is high time for the courts to also recognize the allergic or unusually susceptible as members of a legally identifiable class, to whom the law will extend its protection in warranty and in tort, and not as isolated individuals of whom the law takes no account. See Allergy of the Plaintiff as a Defense in Actions Based Upon Breach of Implied Warranty of Quality, 24 So.Calif.Law Rev. 221, April 1, 1951; Negligence — Liability of Manufacturer or Vendor to an Allergic Consumer, 49 Mich.Law Rev. 253.
Even before allergies were recognized in science as a definite class, some of the courts were saying that “When the fact is once established and demonstrated by experience that a certain commodity apparently harmless contains concealed dangers, and when distributed to the public through the channels of trade and used for the purposes for which it was made and sold is sure to cause suffering to, and injure the health of, some innocent purchaser, even though the percentage of those injured be not large, a a duty arises to and a responsibility rests upon the manufacturer and dealer with knowledge to the extent, at least, of warning the ignorant consumer or user of the *900existence of the hidden danger.” Gerkin v. Brown & Sehler Co., 177 Mich. 45, 143 N.W. 48, 53, 48 L.R.A.,N.S., 224. See also Arnold v. May Department Stores, 337 Mo. 727, 85 S.W.2d 748.
I would apply that rule to our facts and submit to the jury the questions: (1) whether from the evidence, the plaintiff was unusually susceptible to some of the ingredients of the seller’s product; (2) if so, did the allergic plaintiff know of her unusual susceptibility; (3) if not, did the manufacturer know or have reason to know that some of the ingredients of its product were harmful to the unusually susceptible; and (4) if so, did it appropriately warn of such potential dangers. Since, however, the case was neither tried nor presented on that theory, I must be content to concur in the result.