IS CONTR IBUTORY NEGLI GENCE A DEFENSE TO A U\USE OF ACT ION BASED ON
BREACH OF IMPLIED WARRANTIES?
JAMES McDoNALD
CA SE COMMENT
Is contributory negligence
~
defense to a cause of action based on
breach of implied' warranties?
~na
Company,
Texsun Feed Yards, Inc. v. Ralsl.2rL.
447 F.2d 660 (5th Cir. 1971).
Texsun. a feedlot, purchased feed supplement from Ralston Purina
Company, a f ,eed supplement marltifacturer.
Ralston also · advised Texsun
on " the amount of feed supplement' -to be ' used.
of the cattle in the feedlot decreased
whi~h
The ra te of weight gain
resulted in Texsun
"
having to make ,c ash refunds to its customers.
Texsun bro.ught suit
against Ralston for damsges ;"" one ' o~ Texsun's theories for
, recovery,
,
'
the one which ultimately resulted in recovery, was that Ralston had
breached an implied warranty o'f! fitness for a particular purpose.
.
.
"
This theory was pred~cated on the fact that ' the feed supplement recommended by Ralston wa,s insufficient and tnat it was defective •
.
Ralston's defense was that 'Texsun
,
contributorily
WIIS
,
negl~gent
in
"
failing to use good management pra ct ices and in failing to use ateam
The United S'j;'ates Court of Appeals, Fifth Cir~uit,
affirmed the district court's judgment for Texsun l and set forth
. flaking process.
reasons why Texsun's contributory neglige~ce would not bar it~ re"
covery in this case.
Historically, wllrranties have
be e~
viewed as contractual in
nature, an agreement between the ma,nufac,turer and the consumer.
In
recent years, however, courts 'have begun
, . t'o impose liabili'ty upon
manufacturers for injuries caused by their defecti~e products as a
2
mstter of law and this development has created some confusion as to
,
3
the nature of 8 ' warranty action.
Perhaps the bes't description
, . of the action of breach of warranty'
is that of Dean Prosser who calls it » a freak hybrid born of the
4
illicit intercourse of tort and contract'.', and " a more notable
example of legal miscegenation could hardly be cited than that which
produced the modern action for breach of warranty".
5
The action for breach of warranty was conceived of at the outset
as an action of tort, and it was not until 1778 that the contract
6
action was held to lie at ' e'll.
Nevertheless, once the c'ontrac.t
action was established it came , into almost exclusive use, in the minds
of nearly
a ~l
courts and lawyers, warranty, whether express or implied,
7
became definitely identif'ied with the contract.
8
'
Abandonment o~. the privity requiremen't and reco'g nition that the
manufacturer's J..lability is imposed by' la."w in warranty ae-tions, makes
it clear thet product llabil'ity h lno longer governed "O~lY by the law
9
'
of contract warranties. , These recent evolutions in the area require
that the defenses to an actio~ ~n breach of warranty be re-evaluated.
There are conflioting views on whether ' co~tributory negligence
10
' should be alloW'ed as a defense ,to a, bre,a'ch of wltrranty ca:use of action •
•
The conflict is due mainly ' to the confusi'on which exists as ' to the
,
,
nature of a warranty action. In ., resolving 'this C'onflict, two approaches
have evolved.
If the warranty 'action is regarded
a matter of contract,
~s
11
then contributory negligence is , not a bar to recovery.
If, on the
other hand, it is chara oterize'd a s 'tort then contributory neg11gence
Ii
"
is allowed as a defense.
.
Some wI"iters think ,the confusion on this issue can be attI"ibuted
--
, to the ambiguous use of toe phrase ,'~'oo_ntributo~y 'negligence".
.. .
,
.
.
COUI"ts
'
have employed this term in va'rious wals ,which has ce:used confusion as
to the meaning of the term.
_
13
14
The Uniform Commercial , Code,
does not answer the question of
whether contributoI"Y negligence should - bar recovery on a breach of
warranty cause of action.
The Code does offer a buyer"
, 15
in addition to
,any express warranty by the seller, an implied warranty of merch~nt, , 16
17
a~ility
and one . of fitness for a particular purpose. However, the
(2)
Code does not set forth any standard of conduct for a buyer who is
usi~~
a product covered by the warranties provided in the Code. In a comment
to the sections on implied warranties, there is a requirement that a
showing be made that the warranty was broken, end that the breach of
warranty was the proiltimate cause of the loss sustained •• This ,allOWS
the argument that if the bllyer's own negligence oontributed to his
injury, then the injury did n6t proximately result from ' the breach.
However, the Code allows the courts to use their discretion 1n determ1ning if the buyer's ' ,.conduct bars recovery.
In recent
~ears
Texas courts have ' be'en ' faced with tl),e issue of
whether contributory neglig~nc' e is !a defense to a ' breach of implied
...
warranty.
of , ~ob
Prior to the , landmark case,
E.
'
19
De
, ~ck~e~r~&~S~o~n~s~v~.,~C~B~p~p~s,
' Texas oourts had viewed breech 'of implied wBrranty solely BS a oon':'
20 ,
,
,
trBctual theory of reoovery. In Decker the Tex,Bs S,upreme Cpurt established the rule
th~t
manufa~turer
a nonnegligimt
of contaminated food is
liable for injuries sustairled as· a re,sult of ,eating the '09ntaminated
,
"
food even though no privity of contra'ct exists between the manufacturer
and the consumer.
This case, es'tablishedl that under Texas law the
breach of warranty concept discussed in strict liability cases is
essentially a tort and is not 'contractus'l ,in nature.
,i
.
I
.
. '
However.-, although
...
sounding in tort, liability is not bssed upon negligenoe but is imposed
.•
by law because of public policy.
21
In 1967 the Supreme Court in ~i~s~s~o~n~v~.c~S~a~l~e~s~A~f~f~i~l~i~B~t~e,~s~r~I~n~c~
•
....
, oommitted Texas to the rule of strict liability expressed 'in Section
22
402A of the Restatement of Torts
'
as applicable to ,all persons engaged
in the business of selling who sell a produot in a defective condition
which renders it unreasonably dangerou,s to a user or consumer or to his
prooerty.
Co' A. : Hoover & Son
p~oduct
.
.
Thereafter the SlltJreme Court in O.M. Frenklin Serum Co. v.
23
'
upheld a decision that a seller of a · defective
is subjeot to strict liability for dsmages caused to the
property of th,e ultimate consumer.
(3 )
The existence of strict liability in Texas is now clear, but
liability while strict is not absolute and this
basic purpose of the strict liability doctrine.
Oil
Compan~ Tex~
i~
«videnced by the
In 'McDevitt v. Standard
the basic purpose was stated as being:
to provide judicial protection f or the otherwise
defenseless consumer who usually will lack the
ways and means to discover or prove the defect
in, a product which he purchases in reliance upon '
massive advertising campai gns and wide spread
acceptance. It is not' a part of' this purpose to '
pe rmit the imposition of absolute liability upon
the manufacturer or distributor Tor no other
24
reason tH~n that the product was placed on the market.
The expression of the basic ' P4rpoffe of the strict liability
doctrine
,
leads to the conclusion , that , contrlbu,t ory negligence is a defense in
strict liability c:a'ses.
The c'o'urt in McDevitt reasoned that to hold
'
,
:
otherwise would be t9 convert strict liability into absolute liability.
As pointed out, Texas follows the view of Se'c. 402A of the Resta'tement
.
of Torts as to strict liabi'lity, . and Texa,s al.so adopted ,Comment
(N) to
.
Section 4,02A which' states: '
Contri butory negl i g en'c e , of the ph int iff is no
defense when such negligence consists me'rely in
a failure to discover the defect in the product,
or 'to guard a ga inst the possibility of its exisl;ence. ,On the other h'and the form ' of contributory
negligence which cons is tsin , vo luntarily and unreasonably proceeding to encounter ' a known danger,
end commonly passes under the. name of assumption
of risk, is a ,defense under ttlis Section as in other
cases of strict liability. , If .the user or consumer
discovers the defect end ~s , aware of the danger,
and nevertheless u1'\,I',e asonably t>rpceeds to make use
of the product and Is injured by it, he is barred
from recovery. 2S
"
26
',The adoption of Comment (N) by the Texas Supreme Court, and the
fact that Texas follows the tort theory of warranties, comb~ned with
the expressed underl~ing purpo~e of the strict liability doctrine,
.
establishes that contributory negligence is a defense to ,a breach of
implied 'warranty action in Texas.
Howevllr, ,there is some confusion
(4)
as to the nature and scope of the contributory negligence defense, and
a review of some recent strict liability cases is
ne~essary
to determine
when the de fense is applicable.
In Sha'mrock Fuel IX Oil Sales Co. v. Tunks
27
plaintiff purchased !!
quantity of kerosene which exploded when ignited', ther·e by cauS,ing
serious injuries to plaintiff's minor son.
Plaintiff alleged that the
flas'h point of the kerosene su'pplied , by Sh!!mrock had been lowered
through adulteration with ga.sollne.
The Supreme Court of T.exas held
that the fact that ',he minor plaintiff ~as"contribut~rily negligent in
directing his brother to pour the kerosene on a smoldering stick taken
from an incinerator and thai such ~eglrgence was a piox~mate cause of
"
i
\
the plaintiff's injuries would not bar
on a strict liability theory.
.
-
plaintiff from recovering
t~e
The court held that contributory neg,
.
.'
ligence which consists of B failure to discover the defect in a product is not a defense in a strict liability case.
However, if the
plaintiff has discovered th'e defect and the danger, and
nevertheless to make use
negligence i9 permi tted.
h~s
proceeded
the produ~t, then the d~fense of contributory
ot
The c.'o urt wa s saying the.t contributory neg-
ligence is a defense when it consists of a voluntary and unreasonable
proceeding to encounter a kno'lin d'a nger, as,' for example in assumed risk
/ 28 '
.
and volenll non fit injuria.
In the
McKis~
cas.e which was
dec~ded the same day as the Shamrock
.. .
"
case the plaintiff's wife 'suffered
applying defendant's
"~ave 10\ion~'.'
i~ca'.lp
burns arid loss of hair after
' ,The ' Supreme
Cou~t
held that even
. if the plaintiff's wife waa a beauty shop owner and should have known
that the preparation which
~arried
a label stating it was for normal
hair, and could not be safely applied to bleached hair, and ,even if she
were negligent in directing one ,of
her employees to apply it to her
.
bleached hair, her contributory negligence would not preclude recovery
. under strict liability.
The court reiterated the rule of Shemrock that
failure to discover a defect in a product 19".' hot the species of con-
tributory negligence that is a defense to strict liability.
F.M.C. Corporation v. Burns
29
was a product liability action by
cucumber processors against manufacturer of ,wax product sprayed on cucumbers.
The wax product dama ged plaintiff's cucumbers.
Defendant's
mllin contention was that the produot was not use'd as l.ntended, . and tha,t
there was an improper applioation of suoh produot • . The oourt held that
plaintiff's
~onduot
in using tbe wax , produot did not oonstitute misuse
of the produot beoause plaintiff had not been furnished proper instruotions as to the applioation and use of the Wax.
"
McDevitt v,• .Standard Oil Co. of Texas involved an action by station
, retailer
"
wagon owner against automobile
tir~
and manufacturer for in-
juries to person and property when ' tires .failed.
that the station wagon owner
h~~
The defendant alleged
knowingly exposed himself to the risk
.
,
.
,'
of tire failure by pt,lrohasing tires of improper size, by driving the
oar when the tires had been inflated< to imprope·r pressure levels, and
.
by operating the oar at exc'essive
speeds over, rough terralin.
The
' .
.
.
.'
.
plaintiff had beed furnishdd instructions .s to proper tire size and
inflation levels.
The court held . that the plaintiff
mis~
the pro-
duct beoause he did not use it according to the direotions furnished
him.
The court recognized the·t conduot of,' a plaintiff which consists
/
of misusing a produot does oonstitute a" defehse to strict liability in
Texas.
.
The Texas cases establish that ,'u nder
certain oircumstances oon'
"
'
tributory negligence is a defense in ,produot liability actions. This
..
'
defense is available in both the strict liability cases and those based
on breaoh of implied warranty.
The defense of contributory negligenoe
wil l not apply if there is no oausal r 'elationshlp between th,e contrib- .
utory negligenoe and ' the injury.
If ' the oontributory negligenoe of the
plaintiff is simply feiling to disoover a · defeot in the product then
this type of oontributory negligenoe
( 6)
wil~not
bar
8
reoovery.
The
negli gence of the plaintiff will be a defense if it constitutes
8
misuse
of the product, or if the conduct amounts to a voluntary exposure to a
known risk.
In Texas the defense of contributory negligence in product liability
cases must be submitted in a Special Issue.
30
Submitting ph issue or
issues on this defense in a strict liability-implied warranty action
requires car\e ful preparation. :, The Ralston case sets out, that in a
strict ' liability-implied warrant'y case; the defensive issue, of contributory negligence must be framed to fit, the limited type of contributory
"
ne g li~ence
applica ble in this type of action.
In that case,
the defensive issue was submitted 89
, follows:
Special Issue No. 8
(a) Do you find frOm a
that the plaintiff, in
feeding and mana g ement
advers ely a ffected the
by the cattle?
preponderance of the evidence
the spring of 1967, engaged in
practices at , its f e E!d yard tha't
ra te ,'of COJ:lsilmption of fee d
Answer "Yes" or, "No" ..
ANSWER: Yes.
,
(b) Do y'o u find l1rom a preponderance of the evidence
tha t such feeding and mana g em~nt practices of the
Plaintiff constituted' negligence and a proximate
cause of the damages :or ' losses, if any, llbout which
Plaintiff complains?
.
Answer "Yea" or
ANSWER: Yes.
"No"·~ '
"
The court held that this issue was t oo broad because it amounted to a
general inquiry as to contributory negligence,
,
. and it did not inquire
as to the limited type , of contributory'
negligence applicable
in this
,- ,
"
'
"
type action.
In the
~!:.2.2k
case the court discussed submitting
9J
defensive issue in a strict liability case, and the opinion pointed
out ths't the recognized defenses should be submitted specifically.
In that case the form of the issue subinitted embraced a , failure to discover a
~efect
or to guard against the possibility 6f , its existence
and the jury found' thet the plaintiff was guilty of such -negligence.
Ho~ever.
the "oourt pointed out ' that
thi~
:was not
A recogni~ed ' defense
to a strict liability Bction and the jury's answer to the issue would
not bar a recovery.
So, a defensive issue in a breach of warranty case
must specifically ' embrace either misuse of .the
exposure to a known risk.
~roduct
or & voluntary
The issue must also inquire ss to the caussl
relationship between the breach snd the injury. ' In the M6Kisson
, case
the court pointed out that an issue inquiring if the defendant failed
to provide a~equate direction~ for the use of the product has a bearing
upon whether or not the pla1.ntiff made ' a proper uae of the , ,product.
CONCLUSION
,
,
In view of the recent decisiol1s dealing with contributory
neg,
l i gence ss a defense in , breach of warranty csses, it appears that contributory negligence is a defen'se in such an action in Texas.
Un-
qusstionably the average, unsuspecting consumer deserves protection
and should be afforded the assurance that the product he purchases
will be as warranted.
Howdver, ~here are instances where , tha injury
,
is almost totally caused by the consumer's 'own n/lgligence. The issue
,
,"
of what conduct should bar recovery cannot be determined by employing
the label of contributory negligence, but the conduct must fit the
' limited type of contributo,ry negligence ti'Jat is recognized as
,I
in Texas.
'... .
....
-II
de1'ense
The defensive issue submitted must also comply with the
limi ted type requirement.
In the futur!"
.
,t he term, contributory neg-
ligence, may embrace many ' different..",type,s of conaumer conduct which
.
w111 be recognized as a defe~ge in strict 'liab11ity-impl1e'd warranty
,
cases, but at the present time that conduct which constitutes a misuse
, of the product or "assumption
, of the risk are' the only types recognized
,
by Texas courts • .
James McDonald
( 8)
REFERENCES
i
1.
The district court's opinion is reported at 311 F.Supp. ' 644 (N.D.
Texa s, 1970).
2.
Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609,.164 S.W.2d 828
(194 2 ).
3.
Comment, \ Sales-The Defense of Contributory Nel1:1igence In , Wa:rranu
445
Actions, 22 ~.Car. ~. ~~
(1970).
4.
Prosser, The Assault Upon The Citadel.,'
5.
!!!.
6.
Ames,
,
Yal!?. L:. , ~. 1126 (1960).
f
"
!!!!!!~'Y
69
of kssumpsit, 2 aarv.' L. Rev. 1 (1888/; I
W~LLISTON,
0.,----
SALES §195 (3rd ed. 1948).
,
7.
69 ~ L. J. 1127 (1960); For a further discussion of thehistorica'l
.
-- -
"
background of warranties, see Jaeger, .' Warranties of Merchant8'lliity And:
Fitness For Use: Recent Developments,
16 Rutgers
~. Rev. 493-500 (196?,).
i
.
__
8.
Winterbottom v. Wright,' 10 Eng. Rep. '402 '(Ex. 18)412),' where the
\
court by dicta leid out the restrictive rule that a manufacturer is not
responsible to a remote purchaser ' with whom ' he has no privity of
contract; For a further discussion on how the privity requirement ha ,s
been abolished in most ju),i sdictioJ;ls,
~ee
,Noel, Manufacturers 'of
Products - The Dr if t Towa rd Strict Liabllity,24 Tenn.
:'-::-::-"
-::-::>!
:'-::1:::1"<1' :" ):
!!..,
Rev. 963
cas e eliminating px:ivi ty of , contract , as a re-
quirement in actio ns a gainst manufa.c'turers was MaCPherson v. Buick
...
Motor Co., 217 N.Y. 382, III N.E. 1050 (1916); McKisson v. Sales
Affil i ates, Inc., 416 S.W.2d 787 (1967) abolished the requirement of
privity of contract in strict liability ca.es in Texas.
9.
Note, Contributory Negligence As a ' Defense To Warranty Actions,
39 Temp. L.~. 361 (1966).
10. See Maiorino v. Weco Prod Co., 45 N.J~
where the New Jersey Supreme Court,
(9)
9
570,
214 A.2d ' 18 (1965),
leader in the evolution of
products l18hll 1ty law, de nied recovery to a plaintiff who fa,iled to
exer ci se the cere of a "reasonably prudent man" in the use of a
warranted product. Decisions which recognize contributory negligence
es a defense include Dall1son v. Sears Roebuck & Co., 313 F.2d 343
(10th Cir. 1962); Nelson v. Anderson, 245 Minn. '445, 7.2 .N.W.2d 861
"
.
(1955) •
11.
2:2~. Car.
12.
Id.
13.
See Burton, Products Liability, 45 Texos L. ~~. 795 (1967) where
!!.
Rev. 445 (1970).
the author states:
The courts have, emplo:y;ed contributory ne gl lg'ence
in warranty actions ' td indicate the plalnt~ff
either failed to exe rci se due care in discovering
a defect or voluntarily e xposed himself to risk
with knowledge 'of .the danger . At other time s
the courts have used contributory negligence to
mean the plaintiff's negligence was the · sole '
nroximate c aus e of the injuries or the plaintiff
simply faJiled to establish 0 br,each of warranty.
14.
Hereinafter referred to
, as the Code.
15.
E!!iform Comme'~l Code art.,2:, Sec. 2';313 (1). This section
provides that , an express
cre a ted by any affirmation of
warra~tyis
fact or promise which relates to the goods and becomes part of the
basis of the, bargain, or by any description of the goods which-. is made
!
"
part of the basis of the barge,in, or by any sample or, model which
is made part of the basis of the
16.
b8r g el~.
.
-
Uniform Commercial Code art.2" ,Sec. , 2-314 (i). ,This' section
,
.
'
,
provides e warranty that the goods sh!l l l be merchantable
'
,
is implied
in a contract for their sale if the seller is a merchant with respect to goods of th!lt kind.
17.
!i..
.
at Sec. 2-315. This section provides: Where the seller at the
time of contracting has reason ~o know any p!lrticular purpose for
which the goods are required snd that the ' buyer is relying on the
seller' sskill or , judgment to select or furnish suit!lble goods, there
( 10)
Is unless excluded or modified under the next section an implied
warranty that the goods shall be fit for such
purpos~.
18.
g.
19.
139 Tex. 609, 164 S.W.2d 828 • .
20.
Stamford &: Western Ges Co~ v. Starkey, 26 S'.W ; 2d .)65,.... ' (Tex.. Clv.
at Sec. 2-314, Comment 13.
.
App. - Eastland 1930, writ dism'd); Talley v. Beaver" &: Hinds, 78 S.W.~23
(Tex. Civ. Abo.- San Antonio {9~3, no writ).
21.
416 S.W;.2d 787 (1967). '
22.
RESTATEMENT (SECOND), TORTS Sec. 402A' (1964).
23.
O.M; FrankUn Serum Co. v. C.A. , H60ver '&: Son, 418 S •..!y.2d 482 (1968).
24·
McDevitt v. Standard 011 Corilp~ny df Texas, 391 F.2~ 364 (5th Cir.
r
1968) •
25.
,
'
RESTATEMENT (SECONDl, TORTS
See. 402A, Comment (,N) (1964).
,
,
Shamrock Fuel &: , Oi1 Sa1es ' Co., Inc. , v; Tunks, 416 S.W.2d 779
,
26.
" (1967).
27.
Id.
2:8.
For a discuss'ion on the distinction between these two terms, see
G, ~ l!n!l ill, Assumption of Risk, :'16 Beylor L.Re~. III (1964).
2:: .
444
~.
G. Ho dges, ~IAL ISSUE SUBMISSION IN TEXAS (1959).
,
S .... 2d 315 (Tex. Civ. App.- Sen Antonio 1969, no writ).
( 11)