requirement of privity abandoned in products liability claims for breach of implied warranty
How later courts described this case
- requirement of privity abandoned in products liability claims for breach of implied warranty
- privity requirement in actions for breach of an implied warranty
- cinder building blocks caused user's home to collapse
Written by the judges who cited it.
Later courts went against this
Questioned by Heritage Resources, Inc. v. Caterpillar Financial Services Corp., 284 Mich. App. 617 (2009)
Similarly, it is unclear whether the adoption of the UCC — and in particular Alternative A of UCC § 2-318, codified in Michigan as MCL 440.2318 — has in any way affected the continued viability of Piercefield and Spence, neither of which was decided under the UCC.
The opinion
Kelly, J.
(dissenting). I am writing a dissent to Justice Voelker’s opinion in this case (hereinafter referred to as “the opinion”). Justice Voelker writes for reversal on the grounds that the trial court should have permitted recovery, .either on a theory of negligence or implied warranty.
*136 The opinion states that “the present action is not in terms grounded upon negligence of the defendant,” but that we find in Michigan “authority for treating actions of this kind based upon implied warranty by the manufacturer as though they were explicitly grounded upon negligence,” and in support of such statement cites Hertzler v. Manshum, 228 Mich 416 ; Ebers v. General Chemical Co., 310 Mich 261 (17 NCCA NS 660); and Bosch v. Damm, 296 Mich 522 .
In all 3 of the cases cited plaintiffs claimed in their pleadings that defendants were negligent, and no case is cited in the opinion sustaining the claim that Michigan courts or counsel for litigants have been misled into a belief that the plea of implied warranty is and should be treated as though it were “explicitly grounded upon negligence.” It is difficult to understand why we should in the present case accept the opinion and hold that the plea of breach of warranty contained the plea of negligence, and, in the same opinion, caution litigants and their counsel that in the future “such declarations should sound explicitly in negligence as well as for claimed breach of warranty.”
Plaintiff did not plead or base her cause of action on negligence, but rather upon express or implied warranty. The trial court did not err in failing to find for plaintiff because of defendant’s negligence.
The opinion states that the major question is whether “plaintiff is barred from her action by lack of privity;” “that the plaintiff must lose both her appeal and any chance of ever being made whole unless we squarely hold that the court below was wrong in its law in holding that privity of contract was a necessary condition to recovery in these circumstances ;” that “the big issue” in this case is: “Should lack of privity bar this action as a matter of law.”
*137 The lower court found that plaintiff did not purchase the blocks from defendant; that said blocks were purchased by one who was not the agent or employee of the plaintiff. The opinion states that we are bound by the lower court’s finding in this regard as “we cannot say that the testimony preponderates the other way.”
The lower court held that the general rule is “that privity of contract is required in an action for breach of either express or implied warranty and that there is' no privity between the original seller and a subsequent purchaser who is in no way a party to the original sale.”
The opinion does not challenge the. fact that the court properly applied the law of this State as it has existed for many years in the past. The opinion fails to cite one case from the Supreme Court of this State, or any other State, where a judgment on an express or implied warranty was sustained without privity of contract. The opinion calls to attention Carter v. Yardley & Co., Ltd., 319 Mass 92 ( 64 NE2d 693 , 164 ALR 559 ) and states that this case “contains an excellent history of the ‘general rule’ and is a leading modern case in this field.”
To establish the fact that in the Yardley Case the Massachusetts court held that privity of contract was necessary to sustain an action upon an express or implied warranty, we quote from said opinion as follows (p 96):
“The main question in this case is whether the plaintiff is to be denied relief in this action of tort for negligence merely because she had no contractual relation to or privity of contract with the defendant.
“Of course in an action of contract, such as an action upon an express or implied warranty, want of privity of contract would be a defense. Colby v. First National Stores, Inc., 307 Mass 252 ( 29 NE2d *138 920 ); Pearl v. Wm. Filene’s Sons Co., 317 Mass 529, 530, 531 ( 58 NE2d 825 ); Hampson v. Larkin, 318 Mass 716 ( 63 NE2d 888 ); Pearlman v. Garrod Shoe Co., Inc., 276 NY 172 ( 11 NE2d 718 ); Chanin v. Chevrolet Motor Co., 89 F2d 889 ( 111 ALR 1235 ); Rachlin v. Libby-Owens-Ford Glass Co., 96 F2d 597.”
The principle of law requiring privity of contract to sustain actions for express or implied warranty is not an obsolete principle of law unique to Michigan, as is inferred in the opinion. A recent decision of the supreme court of Ohio (decided April, 1953), Wood v. General Electric Co., 159 Ohio St 273, 279 ( 112 NE2d 8 ), states:
. “Although a subpurchaser of an inherently dangerous article may recover from its manufacturer fqr_ negligence, in the making and furnishing of the article, causing harm to the subpurchaser or his property from a latent defect therein, no action may be maintained against such manufacturer by such subpurchaser for such harm, based upon implied warranty of fitness of the article so purchased. 46 Am Jur, Sales, §§ 810, 812, pp 934, 937; 2 Restatement of the Law of Torts, §§ 395 and 497; Birmingham-Chero-Cola Bottling Co. v. Clark, 205 Ala 678 (89 So 64, 17 ALR 667 ); Pelletier v. Dupont, 124 Me 269 (128 A 186, 39 ALR 972 ) ; Kentucky Independent Oil Co. v. Schnitzler, Admr., 208 Ky 507 ( 271 SW 570 , 39 ALR 979 ) ; Chysky v. Drake Brothers Co., Inc., 235 NY 468 ( 139 NE 576 , 27 ALR 1533 ); Flies v. Fox Bros. Buick Co., 196 Wis 196 ( 218 NW 855 , 60 ALR 357 ); annotations, 63 ALR 340 , 349, 88 ALR 527 , 534, 142 ALR 1490 , 1494, and 164 ALR 569 . Here, there was no such privity and hence no implied warranty upon the part of General Electric and no valid issue on that subject.”
In the New York case of Chysky v. Drake Brothers Co., Inc., 235 NY 468 ( 139 NE 576 , 27 ALR 1533 ), which was cited in the Ohio decision above, we *139 find the following statement by the New York court (p 472):
“The general rule is that a manufacturer or seller of food, or other articles of personal property, is not liable to third persons, under an implied warranty, who have no contractual relations with him. The reason for this rule is that privity of contract does not exist between the seller and such third persons, and unless there be privity of contract, there can be no implied warranty.”
Privity of contract is required in an action- for breach of either express or implied warranty. ■ No such proof was introduced in this case. The trial court did not err in finding that in the absence of such proof the plaintiff could not recover. Judgment should be affirmed.
Dethmers, C. J., and Carr, J., concurred with Kelly, J.