Section 1
SURVEY & ANALYSIS OF MODERN
WARRANTY LAW UNDER U.C.C.
§§ 2-313-2-316
William S. Rogers Jr., Esq.
Sara A. Colb, Esq.
Day Pitney LLP, Boston
I.
INTRODUCTION
Warranty based actions remain a fundamental and vital part of product liability
litigation. Article 2 of the Uniform Commercial Code, which has been adopted
by all states but Louisiana, establishes warranties both express and implied by
law as bases for relief. There are three types of product warranties under the
U.C.C.: the express warranty, the implied warranty of merchantability, and the
implied warranty of fitness for a particular purpose.1
Under U.C.C. § 2-313, an express warranty is an affirmation of fact, description,
or sample or model that becomes part of the basis of the bargain itself. Thus, an
express warranty is a warranty that the seller creates, as opposed to one implied
by law. Where the seller creates such an express warranty and the product does
not conform to his affirmation, description, or sample, the buyer has an action
against him for breach of an express warranty.
Sections 2-314 and 2-315 of the U.C.C. establish two warranties—the warranty
of merchantability and warranty of fitness for a particular purpose. These warranties arise by implication as a matter of law if not properly disclaimed. Most
significant of all three warranties, the implied warranty of merchantability provides that a merchant of goods impliedly warrants that his goods are merchantable when he sells them. In Massachusetts, a warranty of merchantability product liability claim is based on either a design defect or a failure to warn. While
Massachusetts does not recognize an action for strict tort liability, courts have
consistently held that the implied warranty of merchantability is intended to afford similarly comprehensive relief. Finally, the warranty of fitness for a particular purpose arises when the seller knows of the particular purpose for which
1
U.C.C. §§ 2-313—2-315. In Massachusetts, these warranties are codified at G.L.M. c. 106, §§ 2313—2-315.
the buyer is purchasing the product, and that the buyer is relying on his skill or
judgment to ensure that the product is suitable.
A seller can limit the scope or exclude any of these warranties, in accordance
with the provisions of U.C.C. § 2-316.2 Generally, if a seller creates an express
warranty, any disclaimer or limitation of warranties must be construed consistently with the express warranty. If the express warranty and the disclaiming
language cannot be construed consistently, the disclaimer will not be given effect. To disclaim or modify the implied warranty of merchantability, the seller
must either specifically mention the word “merchantability” or use expressions
such as “as is” or “with all faults.” If this warranty is disclaimed in writing, the
written disclaimer must be conspicuous. The implied warranty for a particular
purpose can only be disclaimed in a writing that is conspicuous.
Notwithstanding § 2-316, Massachusetts does not allow sellers or manufacturers
to limit or disclaim the warranties of merchantability and fitness for particular
purpose with respect to consumer goods. For the protection of consumers, Mass.
Gen. Laws § 2-316A states that any language attempting to disclaim those warranties will not be enforced. Additionally, federal consumer warranty law also
limits sellers’ ability to disclaim warranties and requires certain disclosures for
the benefit of consumers.3
II.
EXPRESS WARRANTIES
A. Defined
The U.C.C. provides that a seller’s (a) affirmation of fact or promise; (b)
description; or (c) sample or model, which is made part of the basis of the
bargain, creates an express warranty that the goods will conform to that affirmation, promise, description, or sample.
When a seller attributes specific “properties, characteristics, or qualities” to
a product, he expressly warrants that the product will actually conform to
those specifications.4 This can include statements or descriptions appearing
in advertisements, catalogues, and other marketing materials.5 In contrast to
2
See also G.L.M. c. 106, §2-316.
3
Magnusson-Moss Warranty Act, 15 U.S.C. § 2301 et seq.
4
McCarty v. E.J. Korvette, Inc., 28 Md. App. 421, 437 (1975).
5
See, e.g., Community Television Services, Inc. v. Dresser Industries, Inc., 586 F.2d 637, 640 (8th
Cir. 1978) (upholding district court’s finding that statements in catalogue about television tower’s
durability constituted express warranty).
the warranties implied in law, discussed below, an express warranty is an
obligation the seller creates and against which performance of the product is
judged.6 The buyer need not show that the product was defective, but simply
that it failed to perform as expressly warranted.7 For example, “the breach
of an express warranty that a roof will not leak for 15 years is established by
evidence that during that period of time the roof leaked.”8 To be sure, a
statement need not be as precise as that to be considered an express warranty. Courts have found a seller’s statement that a product is safe to use to
be an express warranty and provide a basis for relief should the product
cause any harm.9 Instructions on how to use a product have also been held
to constitute a form of express warranty.10
Section 2-313(2) provides that the words “warrant” or “guarantee” are not
necessary to the creation of an express warranty, nor does the seller need to
have intended his words to establish one.11 Nonetheless, not all statements
made in connection with the sale of a product will constitute express warranties. Statements of opinion and affirmations of the value of goods do not
create express warranties under the statute.12
In distinguishing between opinions and statements of fact, courts have generally viewed statements to the effect that a product is “good,” “wonderful,”
or even “the best” as seller’s talk or “puffing.” Such statements are opinions
and do not give rise to express warranties.13 The U.S. District Court for the
District of Massachusetts highlighted this distinction noting “[s]tatements
which constitute mere ‘puffing’ rather than affirmations of fact generally relate to the value or quality of that which the seller is offering. These state-
6
See Coca-Cola Bottling Co. v. Weston & Sampson Eng’rs, 695 N.E.2d 688, 694 (Mass App. Ct.
1998) (stating that “[w]hat differentiates the promise implied by law . . . and an express warranty is
that the standard of performance is set by the defendants' promises, rather than imposed by law.)
(citations omitted).
7
McCarty v. E.J. Korvette, Inc., 28 Md. App. at 437.
8
Id.
9
See, e.g., Drake v. Charles of Fifth Ave., 33 A.D.2d 987 (N.Y. 1970); Boehm v. Fox, 473 F.2d 445,
(10th Cir. 1973); Marko v. Sears, Roebuck & Co., 24 N.J. Super. 295 (1953); Herndon v. Southern
Pest Control Co., 307 F.2d 753 (4th Cir. 1962).
10
See, e.g., Shotkoski v. Standard Chemical Mfg. Co., 195 Neb. 22, 27-28 (1975).
11
U.C.C. § 2-313(2).
12
U.C.C. § 2-313(2).
13
See, e.g., Jacquot v. Wm. Filene’s & Sons, 337 Mass. 312, 315 (1958); Wocjcik v. Borough of
Manville, 2010 N.J. Super. Unpub. LEXIS 174, at *8-9 (January 29, 2010).
ments tend to be subjective and not easily verifiable.”14 The court, interpreting Massachusetts law, refused to find an express warranty was created by
statements contained in defendant’s brochure such as that its workforce was
“consistent and knowledgeable” and “cannot be equaled by any competitor.”15 Using similar reasoning, the Indiana Supreme Court upheld a ruling
distinguishing between the statements “top quality seeds” and “high vitality,
vigor and germination.” The Indiana court reasoned that the former
amounted to unverifiable puffing, while the latter was “a definitive statement” about how the seeds would perform and created an express warranty.16
1. Basis of the Bargain
Significantly, whether the express warranty be by affirmation of fact,
description, or sample, it must be “made part of the basis of the bargain” in order to qualify as an actionable warranty under the statute.
States have employed different standards in determining whether a
statement was “made part of the basis of the bargain.” Some states, including Massachusetts, require the buyer to “show at least some reliance on the defendant's representations to successfully state a claim for
breach of an express warranty.”17 Other states have squarely rejected reliance as a requirement in an express warranty claim.18 In yet a third
approach, the U.S. Court of Appeals for the Third Circuit, interpreting
New Jersey law, held that “a plaintiff effectuates the ‘basis of the bargain’ requirement . . . by proving that she read, heard, saw or knew of
the advertisement containing the affirmation of fact or promise.”19 The
court went on to explain that once such proof was offered, a defendant
could only rebut the presumption that the statements were part of the
14
Marantz Co. v. Clarendon Industries, 670 F. Supp. 1068, 1073 (D. Mass. 1987).
15
Id.
16
Martin Rispens & Son v. Hall Farms, 621 N.E.2d 1078, 1082-83 (Ind. 1993).
17
Hiller v. DaimlerChrysler Corp., 2007 Mass. Super. LEXIS 442, *11 (September 25, 2007); see
also Carter v. Scubapro, 2011 U.S. Dist. LEXIS 84449, *11 (D. Mass. May 10, 2011) (“Plaintiff has
offered no evidence whatsoever of reliance upon (or even knowledge of) any express warranty, thus
he has no claim for breach of that warranty under Massachusetts law.”); Phillips v. Ripley &
Fletcher Co., 541 A.2d 946, 950 (Me. 1988); Stang v. Hertz Corp., 83 N.M. 217, 219 (1971).
18
See, e.g., Weinstat v. Dentsply Internat., Inc., 180 Cal. App. 4th 1213, (2010) (“[B]reach of express
warranty arises in the context of contract formation in which reliance plays no role.”).
19
Cipollone v. Liggett Group, Inc., 893 F.2d 541, 567-68 (3rd Cir. 1990).
‘basis of the bargain’ by “clear affirmative proof [] that the buyer knew
that the affirmation of fact or promise was untrue.”20
Despite the requirement that a statement be “made part of the basis of
the bargain” to qualify as an express warranty, many courts have also
found statements made after the completion of the bargain to constitute
express warranties.21 In Rite Aid Corp. v. Levy-Gray, the Maryland
Court of Appeals held that statements contained inside a medication
package created an express warranty, even though plaintiff buyer was
not aware of the statements when she purchased the medication.22 The
court rejected the argument that for a statement to become part of the
basis of the bargain it “must be a negotiated term of the agreement, or
[the] consumer must at least have been aware of its existence prior to
the consummation of the deal.”23 The court reasoned that “the circumstances surrounding most purchases in modern commercial dealing”
preclude such a reading of the statute, and pointed to “the relationship
between the sale of the goods and the affirmations made by the seller”
as the test for whether those affirmations were made part of the basis of
the bargain.24 However, other courts have taken a stricter view that the
timing does matter, and that “in order to become part of the basis of the
bargain, the buyer must have been aware of the affirmation of fact or
promise at some point in the bargaining process.”25
III.
IMPLIED WARRANTIES
The U.C.C. establishes two implied product warranties which arise by operation
of law, and do not require any express agreement between the parties: the implied warranty of merchantability and the implied warranty of fitness for a particular purpose.
20
Id. At 568.
21
See, e.g., Winston Indus., Inc. v. Stuyvesant Ins. Co., 55 Ala. App. 525 (1975).
22
391 Md. 608 (Ct. App. Md. 2006).
23
Id. at 625.
24
Id.
25
See, e.g., Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813, 844 (2005).
A. Implied Warranty of Merchantability
By far the broadest and most commonly asserted warranty claim is breach
of the implied warranty of merchantability. Under the U.C.C. § 2-314,
every sales contract carries an implicit warranty that the goods are “merchantable . . . if the seller is a merchant with respect to goods of that kind.”
This warranty is “designed to protect the buyer of goods from bearing the
burden of loss where merchandise, though not violating a promise expressly
guaranteed, does not conform to the normal commercial standards. . .”26 Requiring no proof of specific promises or affirmations by the seller, this law
imposes on the merchant an obligation to stand behind his product as a matter of social policy.27 “The merchant seller warrants that his goods are,
among other things, fit for the ordinary purposes for which such goods are
used.”28
1
Massachusetts Merchantability Claims
An action based upon the implied warranty of merchantability is similar to a strict liability claim in tort, leading some commentators to refer
to it as a “first cousin.”29 While the two claims co-exist in some states,
Massachusetts does not recognize strict tort liability. Massachusetts
courts have frequently noted, however, that product liability under a
merchantability claim in this state is “fully as comprehensive as the
strict liability theory of recovery adopted by a great many other jurisdictions.”30 In support of this finding, the Massachusetts Supreme Judicial Court (“SJC”) in Back v. Wickes Corp. pointed out that the legislature specifically abolished the privity requirement for warranty claims,
and also disallowed merchants from disclaiming the implied warranty
of merchantability with respect to consumer goods.31 To be sure, there
are important distinctions between strict liability and an action under
the implied warranty of merchantability in Massachusetts today. Significantly, and discussed more fully herein, in Vassallo v. Baxter the
26
Vlases v. Montgomery Ward & Co., 377 F.2d 846, 849 (3rd Cir. 1967).
27
Cigna Ins. Co. v. Oy Saunatec, 241 F.3d 1, 16 (1st Cir. 2001).
28
Back v. Wickes Corp., 375 Mass. 633, 640 (1978).
29
See, e.g., White & Summers, Uniform Commercial Code § 9-8, at 510 (4th ed. 1995); see also,
Mathew Bender & Co., Inc., I-2 Products Liability, § 2.03 (2011).
30
See, e.g., Back v. Wickes Corp., 375 Mass. at 639; Haglund v. Philip Morris, Inc., 446 Mass. 741,
746 (2006).
31
Back, 375 Mass. at 639-640 (stating that Massachusetts Legislature’s enacting §§ 2-318 and 2316A evidenced its intention to afford relief as comprehensive as that available under strict liability).
SJC abandoned the strict liability “hindsight approach” to the duty to
warn, holding that sellers and manufacturers are only liable under a
merchantability action for the failure to warn of foreseeable or reasonably knowable dangers. 32 As a matter of policy, however, Massachusetts
courts have continued to explain the rationale of the merchantability
claim with reference to the justification underlying strict liability. In
Haglund v. Philip Morris Inc., the SJC stated:
“The stringent responsibility placed on sellers under
our warranty scheme is justified on the ground that . .
. public policy demands that the burden of accidental
injuries caused by products intended for consumption
be placed upon those who market them, and be
treated as a cost of production against which liability
insurance can be obtained; and that the consumer of
such products is entitled to the maximum of protection at the hands of . . . those who market [the prod33
ucts].”
2. Merchantability Defined
The statute defines merchantability by six minimum criteria:
“(2) Goods to be merchantable must at least be such
as[:]
(a) pass without objection in the trade under the contract description; and
(b) in the case of fungible goods, are of fair average
quality within the description; and
(c) are fit for the ordinary purposes for which such
goods are used; and
(d) run, within the variations permitted by the
agreement, of even kind, quality and quantity within
each unit and among all units involved; and
32
428 Mass. 1, 20 (1998).
33
Haglund, 446 Mass. at 746 (citations and quotations omitted).
(e) are adequately contained, packaged, and labeled
as the agreement may require; and
(f) conform to the promises or affirmations of fact
made on the container or label if any.”34
Most warranty of merchantability actions are litigated under the “fit for
the ordinary purposes” criterion.35 As one court recently explained, “the
implied warranty of merchantability concerns the fitness of goods for
the ordinary, customary purposes for which such goods are used.”36 In
Back v. Wickes Corp., the SJC explained that “ordinary purposes” include both the uses that the seller intended, as well as those which are
reasonably foreseeable.37 Thus, even a misuse is actionable under the
statute so long as it is a foreseeable misuse. Further, the court stated
that whether a product is “fit” for those purposes “is a question of degree that primarily, though not exclusively, concerns reasonable consumer expectations.”38 A product is unfit “where it is dangerous to an
extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the
community as to its characteristics.”39
3. Defective Design Theory
In Massachusetts, merchantability product liability claims are based either on defective design or a failure to warn.40 Like in strict liability
claims, the liability analysis for product design “focuses on the product’s features, rather than the seller’s conduct.”41 A manufacturer will
be held liable under the defective design theory if “its conscious design
choices fail to anticipate the reasonably foreseeable risks of ordinary
34
U.C.C. 2-314(2)(c).
35
White & Summers, Uniform Commercial Code § 9-8, at 521 (4th ed. 1995).
36
Lawson v. Hale, 902 N.E.2d 267 (Ind. Ct. App. 2009).
37
375 Mass. 633, 640 (1978).
38
Id. at 642.
39
O’Neil v. Electrolux Home Prods., 2008 U.S. Dist. LEXIS 39998, *13 (D. Mass.) (citations and
quotations omitted).
40
41
Haglund v. Philip Morris, Inc., 446 Mass. 741, 747 (2006).
O’Neil v. Electrolux Home Prods., 2008 U.S. Dist. LEXIS 39998, *16 (D. Mass. May 14, 2008)
(citation omitted).
use.”42 Thus, liability under this theory “may be imposed even where
the product was properly designed, manufactured, or sold; conformed
to industry standards; and passed regulatory muster, and even where the
customer used the product negligently.”43
Recently in O’Neil v. Electrolux Home Prods., the U.S. District Court
for the District of Massachusetts considered whether a riding lawn
mower fitted with a grass catcher was defectively designed where its
blades continued to cut even when the machine was in reverse, and the
attached grass catcher limited rearward visibility, potentially exacerbating the danger of a back-over accident. In analyzing the issue, the court
noted that “a manufacturer must anticipate the environment in which its
product will be used, and it must design against the reasonably foreseeable risks attending the product’s use in that setting.”44 The court reasoned that defendant manufacturer could reasonably have foreseen that
a lawnmower “would be purchased for residential mowing[,] and that
children might be near . . . while it was in operation.”45
Having determined that the risk to children was foreseeable, the court
then analyzed whether the design was “unreasonably dangerous” and
therefore unfit, given this foreseeable risk. The court explained that
product design is evaluated on various factors “including the gravity of
the danger posed by the challenged design, the likelihood that such
danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an
alternative design.”46 Relying in part on plaintiffs’ proposed alternative
designs that included child safety systems, and actual implemented designs of other manufacturers that included back-over protection systems, the court found that a genuine issue was raised as to the product’s
design, and denied defendants’ motion for summary judgment.47 In discussing the alternative designs in the industry, the court noted that to
succeed, Plaintiffs did not need to show that any manufacturer em-
42
Haglund, 446 Mass. at 747-48 (citation and quotations omitted).
43
Id. at 748.
44
2008 U.S. Dist. LEXIS 39998, *12 (D. Mass. May 14, 2008) (emphasis added).
45
Id. at *12-13.
46
Id. at *16-17.
47
Id. at *17-20.
ployed or even considered another design, but only “that a safer alternative design was feasible.”48
4. Failure to Warn Theory
A manufacturer may be held liable for breach of the implied warranty
of merchantability if he fails to properly warn the foreseeable consumer
of a product’s known and inherent dangers, that cannot be eliminated
through design improvements . In Mitchell v. Sky Climber, Inc., the
SJC explained, “A manufacturer of a product has a duty to warn foreseeable users of dangers in the use of that product of which he knows
or should have known. A manufacturer who advises prospective users
concerning the use of its own product must provide complete and accurate warnings concerning dangers inherent in that product.”49 Prior to
the decision in Vassallo v. Baxter Healthcare Corp., this failure to warn
standard “presume[d] that a manufacturer was fully informed of all
risks associated with the product at issue.”50 In Vassallo v. Baxter
Healthcare Corp., the SJC revised and limited the scope of prior law,
abandoning the strict liability “hindsight” approach which disregarded
foreseeability. The court held that a defendant is not “liable under an
implied warranty of merchantability for failure to warn or provide instructions about risks that were not reasonably foreseeable at the time
of sale or could not have been discovered by way of reasonable testing
prior to marketing the product.”51 Under the ruling in Vassallo, “state
of the art” evidence is deemed admissible to establish what the manufacturer knew about the risks, and what could have been learned
through testing.52
Vassallo also held that “[a] manufacturer . . . will remain subject to a
continuing duty to warn (at least purchasers) of risks discovered following the sale of the product at issue.”53 In Lewis v. Ariens Co., the
court considered and somewhat limited the scope of the “continuing
duty” it announced in Vassallo.54 In Lewis v. Ariens, Plaintiff injured
48
Id. at *19.
49
Mitchell v. Sky Climber, Inc., 396 Mass. 629, 631 (1986).
50
Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 20 (1998).
51
Id. at 22-23.
52
See Thayer v. Pittsburgh-Corning Corp., 45 Mass. App. Ct. 435, 437 (1998).
53
Vasallo, 428 Mass. at 23.
54
434 Mass. 643, 646-50 (2001).
his hand on the blades of a snow blower he purchased used, sixteen
years after the product was originally manufactured and sold. The court
accepted the principles of the Restatement (Third) of Torts: Product Liability § 10, which does not limit the post-sale duty to warn to direct
purchasers, as the “logical and balanced embodiment of the continuing
duty rule we recognized in Vassallo.” Nevertheless, the court found
that no continuing duty to warn existed here where plaintiff “purchased
the product at least second hand, sixteen years after it was originally
sold, and did not own the product until years after a duty to provide additional warnings arguably arose.”55 The court reasoned that it would
be unreasonable to require a manufacturer to provide warnings to an
individual in plaintiff’s position where plaintiff belonged “to a universe
too diffuse and too large for manufacturers or sellers of original equipment to identify.”56
5. Limitations on Duty to Warn
Massachusetts has recognized some important limiting principles on
the duty to warn. There is no duty to warn " where the danger presented
by a given product is obvious . . . because a warning will not reduce the
likelihood of injury."57 Thus, in a case where plaintiff sought damages
for injuries sustained falling off a ladder, the SJC rejected his argument
that the manufacturer should have placed a label on the ladder warning
users that they should not stand on the seventh step.58 The court in
Carey v. Lynn Ladder & Scaffolding Co. held that “the plaintiff was
aware of, and appreciated, the danger he was incurring by going to the
seventh step of the ladder so that a warning . . . was not needed and the
defendant was not causally responsible for the accident.”59 Under similar reasoning, and notwithstanding a manufacturer’s failure to warn of a
known risk, a plaintiff “with superior knowledge of the hazards of a
particular product . . . cannot recover if, based on his superior knowledge, he understood the danger.”60 Finally, where a plaintiff claims that
the manufacturer’s warnings were inadequate, yet admits that he did
not read those warnings, his warranty claim based on failure to warn
55
Lewis v. Areins Co., 434 Mass. 643, 649 (2001).
56
Lewis v. Areins Co., 434 Mass. 643, 649 (2001).
57
Bavuso v. Caterpillar Industrial, Inc., 408 Mass. 694, 699 (1990); see also Carey v. Lynn Ladder
& Scaffolding Co., 427 Mass. 1003 (1998).
58
Carey v. Lynn Ladder & Scaffolding Co., 427 Mass. 1003 (1998).
59
Id. at 1006.
60
Lussier v. Louisville Ladder Co., 938 F.2d 299, 301 (1st Cir. 1991).
will fail, because even if there had been a more complete warning, he
would not have seen it.61
These limiting principles boil down to proof of causation issues. In
each case it cannot be said that the presence of a warning would have
prevented the accident.62 Therefore the failure to warn in such instances
will not provide the basis for an actionable merchantability claim.
6. The Unreasonable Use/Correia Defense
An important limitation on merchantability claims based on defective
design is known as the “unreasonable use” defense, articulated by the
SJC in Correia v. Firestone Tire & Rubber Co.63 The court stated that
under Massachusetts warranty law, “the only duty imposed on the user
is to act reasonably with respect to a product which he knows to be defective and dangerous.”64 Put another way, a “plaintiff in a warranty action under G.L. c. 106, § 2-314 may not recover if it is found that, after
discovering the product’s defect and being made aware of its danger, he
nevertheless proceeded unreasonably to make use of the product and
was injured by it.”65
In Gillespie v. Sears, Roebuck & Co., plaintiff argued that a saw was
defectively designed where the blade guard had to be removed for certain types of cutting, which allowed one to leave the guard detached.66
On review, the U.S. Court of Appeals for the First Circuit found that
there was enough evidence of unreasonable use to warrant a jury instruction on that defense. In so finding, the court focused on the fact
that plaintiff “admittedly knew that table saws came with guards and
knew that this machine had no guard attached[;] . . . admitted that he
knew saws were sold in stores with blade guards on them and that he
had seen one used with a blade guard on a home repair television
show.”67 Based on these admissions, the court held that “the jury could
61
O’Neil v. Electrolux Home Prods., 2008 U.S. Dist. LEXIS at *21-22 (D. Mass. May 14, 2008).
62
See, e.g., Lussier, 938 F.2d at 302 (“Because an adequate instruction would not have enhanced the
plaintiff's existing knowledge as to proper ladder setup, the inadequacy of the warning did not
proximately cause the plaintiff's injuries.”).
63
388 Mass. 342 (1983).
64
Id. at 355.
65
Id. at 357.
66
386 F.3d 21 (1st Cir. 2004).
67
Id. at 32.
permissibly have inferred that he knew that guards were standard safety
equipment, that their absence meant that something was wrong in a
way that increased the risk of injury, and that (as a matter of common
sense) working with a high-speed cutting tool with an unguarded blade
could cause serious injury up to and beyond what [plaintiff] suffered.”68
Recently in Haglund v. Philip Morris, Inc., one of the many cases
brought against tobacco manufacturers, the SJC considered whether the
unreasonable use/Correia defense should be unavailable as a matter of
law in the context of cigarette use, where cigarettes cause injury when
used in their ordinary manner, and therefore cannot be used reasonably.69 The plaintiff in Haglund brought an action against Philip Morris,
on behalf of her husband, a longtime smoker who died of lung cancer.
Plaintiff sought to preclude Philip Morris’s assertion of the Correia defense as a matter of law, and the SJC reviewed the trial court’s denial of
that motion.
First, the court reasoned why the Correia defense is generally inapplicable to cigarettes:
“[T]he Correia defense presumes that the product at
issue is, in normal circumstances, reasonably safe and
capable of being reasonably safely used, and therefore that the consumer’s unreasonable use of the
product he knows to be defective and dangerous is
appropriately penalized. Because no cigarette can be
safely used for its ordinary purpose, smoking, there
can be no unreasonable use of cigarettes. Thus, the
Correia defense, which serves to deter unreasonable
use of products in a dangerous and defective state,
will, in the usual course, be inapplicable.”70
The court found that the social policy of the Correia defense—to encourage the reasonable use of products by consumers—cannot be accomplished with respect to use of a product that by its very nature cannot be used reasonably.71 Rejecting Philip Morris’s argument that the
defense can be predicated on a presumption that “the only safe use of a
68
Id. at 32-33.
69
Haglund v. Philip Morris, Inc., 446 Mass. 741 (2006).
70
Id. at 742-43.
71
Id. at 751.
product is nonuse,” the court concluded that the Correia defense is
generally unavailable in this context.72 The court further justified this
conclusion on policy grounds, emphasizing that “where the defendant
merchant affirmatively invites the consumer to use a product that cannot be safely used . . .then public policy demands that the merchant
bear the burden of reasonably foreseeable injuries that result from that
invitation.”73 This conclusion was undisturbed by “plaintiff’s stipulation of knowing unreasonable use,” which the court found to be nothing
more than a restatement of the obvious and known fact that cigarettes
cannot be used safely, and therefore their use is inherently unreasonable.74
However, the court left open a window of potential applicability of the
Correia defense in cigarette cases in certain circumstances: “[W]e []
agree with Philip Morris that, in certain conceivable scenarios, an individual consumer’s behavior may be so overwhelmingly unreasonable in
light of the consumer’s knowledge about, for example, a specific medical condition from which he suffers, that the Correia defense may be
invoked.”75 By way of example, the court stated that the Correia defense might appropriately be invoked where a consumer begins smoking despite suffering from emphysema or some other condition the consumer knows to be exacerbated by smoking.76 This would indeed constitute unreasonable use, and the Correia defense would be appropriate.
7. Purchaser Control of Product Specifications
In Hatch v. Trail King Industries, Inc.,77 a case just decided in August
of this year, the U.S. Court of Appeals for the First Circuit carved out a
new exception that could pose a significant road block to merchantability cases based on defective design in Massachusetts, or perhaps, as
some commentators have pointed out, “open[] the door to some really
inconsistent rulings.”78 Plaintiffs Dean Hatch and his wife, brought suit
72
Id. at 752.
73
Id. at 753.
74
Id. at 752-53.
75
Id. at 743.
76
Id. at 753.
77
2011 U.S. App. LEXIS 18000 (1st Cir. August 29, 2011).
78
See David E. Frank, Co. Not Liable for Defective Trailer, Massachusetts Lawyers Weekly, September 12, 2011, at 1 (quoting Timothy C. Kelleher III, who submitted an amicus brief on behalf of
the Massachusetts Academy of Trial Attorneys).
against the manufacturer of a trailer used by Hatch’s employer after the
trailer left him paralyzed from the neck down. Plaintiff argued that a
design defect in the hydraulically operated drop gate caused his injury.
The trailer, including the drop gate, was manufactured according to
specifications of Plaintiff’s employer.
While acknowledging that there is no clear state precedent on the issue,
the court held there was no error in the jury instruction that there is no
implied warranty of merchantability “if the purchaser is not simply the
purchaser[,] but was also the party that had complete control of the
product’s specifications, and, therefore, bears significant responsibility
to any resulting defect because it was their design, their specifications,
that caused the defect.”79
In the court’s view, the fact that the defendant manufacturer “had built
a specialized trailer for Hatch’s employer” based on the employer’s
own specifications, barred plaintiff from recovering for defective design.80 The court affirmed the jury instruction on this exception despite
acknowledging (1) that Massachusetts warranty law requires no privity
of contract (§ 2- 318); and (2) the well established precedent in Massachusetts that the implied warranty of merchantability “is congruent in
nearly all respects with the principles expressed in the Restatement
(Second) of Torts § 402A,” governing strict liability claims.81 Instead,
the court looked to § 404 of the Restatement and its commentary and
determined that Massachusetts would likely follow it.82 Specifically, in
§ 404 entitled “Negligence in Making, Rebuilding, or Repairing Chattel,” the commentary provides:
“[A] contractor is not required to sit in judgment on the plans
and specifications or the materials provided by his employer . .
. [and] is not subject to liability if the specified design or material turns out to be insufficient to make the chattel safe for use,
unless it is so obviously bad that a competent contractor would
realize that there was a grave chance that his product would be
dangerously unsafe.”83
79
Hatch, 2011 U.S. App. LEXIS at *11-12.
80
Id. at *21-22.
81
Id. at 13, 19-20.
82
Id. at 20-22.
83
Id. at 22.
Finding no express distinction between a contractor and a manufacturer
in either G.L.M. c. 106 or the Restatement, the court found that the
principles articulated in the § 404 commentary applied and barred recovery on these facts.84
B. Implied Warranty of Fitness for a Particular Purpose
By far the less common of the implied warranty claims is the implied warranty of fitness for a particular purpose—U.C.C. § 2-315. This warranty
arises (1) where the seller at the time of contracting has reason to know any
particular purpose for which the goods are required; and (2) the seller
knows that the buyer is relying on the seller’s skill or judgment to select or
furnish suitable goods.85
Because of the requirement that the seller know of the particular purpose for
which the product is needed and that the buyer is relying on his skill or
judgment, the determination of whether this warranty has arisen is typically
a question of fact.86 One case typifying the warranty of fitness for a particular purpose is Massey-Ferguson, Inc. v. Evans.87 In Massey-Ferguson,
plaintiff buyer sought assistance from seller’s salesman in selecting farm
equipment. The equipment was defective and failed to perform properly. In
determining that the seller breached the implied warranty of fitness for a
particular purpose, the court relied on the fact that the buyer told the salesman that he did not have any experience with farming and that he needed
the equipment to farm 200 acres, the salesman’s testimony that he “explained . . . all that he knew about farming[,] assisted [the buyer] in selecting the equipment that he would need in his farming operation,” and assured
the buyer that the equipment “would be in ‘field ready’ condition and would
be ready to cut soybeans.”88 The court determined that from these facts it
was clear the plaintiff buyer relied on the salesman’s skill and judgment to
select suitable equipment for his particular soybean farming operation, and
that the salesman understood that the buyer was relying on his skill and
judgment.89 Thus the equipment’s failure to perform as indicated constituted
a breach of the warranty of fitness for a particular purpose.
84
Id. at 22-23; 29-31.
85
U.C.C. § 2-315.
86
Fernandes v. Union Bookbinding Co., 400 Mass. 27, 33 (1987).
87
406 So.2d 15 ( Miss. 1981).
88
Id. at 17.
89
Id.
One common circumstance where this warranty arises is where a buyer orders particularly manufactured goods with certain features specific to the
buyer’s needs. For example, in Kokomo Opalescent Glass Co. v. Arthur W.
Schmid International, Inc.,90 plaintiff, a consultant in glass machinery and
plants, contracted with defendant seller to deliver and install in plaintiff's
plant a rolling machine, designed by defendant with the specifications that it
be “adaptable for double rolling (employing four rollers) . . . capable of
producing forty sheets of cathedral glass thirty-eight by ninety-six inches in
size per hour,” and consist of “certain specified parts and equipment.”91
Where this highly specified and custom-ordered machine failed to perform
according to the particular purpose of the buyer, the court held that the
seller breached its implied warranty of fitness for that particular purpose.92
IV.
DISCLAIMING WARRANTIES
A. Exclusion and Modification under the U.C.C.
U.C.C. § 2-316, entitled “Exclusion or Modification of Warranties,” allows
sellers to limit or disclaim the warranties discussed in the preceding sections. This section provides minimum criteria required for such limitation or
disclaimer to be valid.
First, § 2-316(1) requires that “words or conduct relevant to the creation of
an express warranty and words or conduct tending to negate or limit warranty” must be construed consistently with each other, wherever reasonable.
Any such negation or limitation will be inoperative where the statements or
conduct cannot be consistently construed. In other words, a seller will not
be permitted both to provide an express warranty and take it away at the
same time. Thus, where a court finds statements or affirmations of a seller
to have created a warranty, it will not give effect to the seller’s disclaimers
of that same warranty. For example, in Woodbury Chem. Co. v. Holgerson,
the U.S. Court of Appeals for the Tenth Circuit upheld the determination
that the label on an herbicide product guaranteeing the composition of the
herbicide created an express warranty. As such, the court would not give effect to the disclaimer appearing on the product, which stated that the:
90
371 F.2d 208 (7th Cir. 1966).
91
Id. at 210.
92
Id. at 214.
“[s]eller makes no warranty of any kind, express or implied, concerning the
use of this product.”93 .
Subject to § 2-316(3), discussed below, § 2-316(2) provides that a seller
wishing to exclude or modify the implied warranty of merchantability must
specifically mention the word “merchantability.” This can be done orally or
in writing, but if it is in writing it must be conspicuous.94 In contrast, the
implied warranty of fitness for a particular purpose can be disclaimed with
general language, but it must be in writing, and the writing must be conspicuous. The statute specifically provides that general language stating that
“[t]here are no warranties which extend beyond the description on the face
hereof” is sufficient to disclaim a warranty of fitness for a particular purpose.95
Under § 2-316(3), “all implied warranties are excluded by expressions like
‘as is,’ ‘with all faults,’ or other language which in common understanding
calls the buyer’s attention to the exclusion of warranties and makes plain
that there is no implied warranty.”96 Thus, there is no requirement that
“merchantability” be specifically mentioned in order to disclaim it if words
such as “sold as is” are used.
B. Consumer Protection—Limitations on Disclaimers
Notwithstanding the adoption of § 2-316, Massachusetts limits the ability of
sellers to exclude or modify the implied warranties of merchantability and
fitness for a particular purpose. Under G.L.M. c. 106, §2-316A, a seller or
manufacturer’s attempts to disclaim or modify the implied warranties with
respect to consumer goods are unenforceable. This section also prohibits a
seller from limiting the remedies available to the consumer for breach of
warranty. Consumer goods are defined as “those bought for use primarily
for personal, family or household purposes.”97 Section 2-316A is specifically aimed at protecting consumers and their purchase of consumer goods,
rather than business transactions. Indeed, § 2-316A(4) states that it “does
not affect the validity under other law of an agreement between a seller or
manufacturer of goods and services and a buyer that is an organization.”
93
439 F.2d 1052, 1053-1054 (10th Cir. 1971).
94
Under U.C.C. §1-201(10), a term or clause is conspicuous "when it is so written that a reasonable
person against whom it is to operate ought to have noticed it."
95
U.C.C. § 2-316(2).
96
U.C.C. § 2-316(3).
97
Jacobs v. Yamaha Motor Corp., U.S.A., 420 Mass. 323, 328 (1995).
Federal law similarly provides some warranty protection with respect to
consumer products. The Magnuson-Moss Warranty Act, enacted in 1975,
established a limited federal consumer warranty law.98 The Act limits the
types of disclaimers that manufacturers and sellers can use with respect to
implied warranties of merchantability and fitness for a particular purpose,
requires certain minimum disclosures by sellers, and provides remedies to
consumers for breach of warranty.99
V.
CONCLUSION
Thus, with certain important limitations, the three product warranties established
by the U.C.C.—the express warranty and implied warranties of merchantability
and fitness for a particular use—provide significant bases for product liability
actions. Product manufacturer’s should be well-informed on the elements of
each of these warranty claims, their evolving interpretation under the law, the
corresponding defenses, and the proper means to limit or exclude such claims.
98
White & Summers, Uniform Commercial Code § 9-15, at 543 (4th ed. 1995).
99
Id.