§63.3 Breach of Warranty

The Case: Motley v. Fluid Power of Memphis, Inc. , 640 S.W.2d 222 (Tenn. Ct. App. 1982).

The Basic Facts: Plaintiff was injured at her place of employment when the head of a clothing press which she was operating closed down and caught her hands and arms. "In this lawsuit for damages, she and her husband sue Fluid Power of Memphis, Inc. (Fluid Power), the seller of the control mechanism installed on the press, and Clippard Instrument Laboratory, Inc. (Clippard), the designer of the control system. The lawsuit is brought under the theories of strict liability in tort, negligence and breach of warranties." 640 S.W.2d at 224.

The Bottom Line:

• "The press involved was a New York clothing press with a head pressure of between 2,000 and 2,500 pounds and a steam temperature of about 320 degrees Fahrenheit. As originally designed the press was operated by a foot pedal which closed the head down and a handle which locked it down. Obviously, when operated with the factory-installed controls, it was possible for an operator to be injured should his hands not be clear of the pressing surface when the head came down." Id.
• "It was determined that the press, when operated with the factory-installed controls, did not meet O.S.H.A. standards and regulations, and Salant contacted Fluid Power for a control system which would meet those regulations. As result, Fluid Power recommended the installation of a two-hand, anti-tie-down control system on each press. This control system was designed by Clippard to require that two buttons be pressed simultaneously, one with each hand, to cause the head to come down and to preclude press operation by the pushing of one button. This control system had been installed on Mrs. Motley's press for about three months before her injury." Id.

• "Before the control systems were purchased by Salant, the representative of Fluid Power, Ray Clapp, wrote Salant a letter dated January 23, 1973, recommending it purchase the two-hand, anti-tie-down control system, and stated:
  1. This circuit is designed so that if any part fails the press will not operate.
  2. To operate, one must push both buttons simultaneously and hold them until the press is fully down and locked. The press circuit will then hold until the timer opens it."
  Id.
• "Enclosed in that letter was a letter from Clippard to Fluid Power which stated that the control system it proposed to furnish Fluid Power for Salant met the following requirements:
  1. Both buttons must be pushed to operate the machine.
  2. They must be pushed within milliseconds of each other or almost simultaneous.
  3. This insures that one of the operator's hands will be on each button when the machine operates."
  Id. at 224-25.
• "Mr. Bullwinkle of Salant testified that he relied upon these representations when he purchased about 200 of these control systems from Fluid Power." Id. at 225.
• "The record reveals that Salant did not have the 'in house' expertise to design and install a control system which would meet O.S.H.A. standards. Salant relied upon Fluid Power for this expertise, and purchased the control systems based upon representation made by Fluid Power and Clippard. The letters sent to Salant, as heretofore noted, were made for the purpose of inducing a sale of the control systems to Salant. The representations became a part of the basis of the bargain so as to create express warranties that the control systems would conform to such representations. T.C.A. Sec. 47-2-313; Cooper Paintings & Coatings, Inc. v. SCM Corp., [457 S.W.2d 864 (Tenn. Ct. App. 1970)]. And, where these representations were first made by Clippard to Fluid Power and later by Fluid Power to Salant, both the supplier Clippard and the seller Fluid Power are liable for breach of express warranties where the product fails to conform to the representations made. Agricultural Servs. Ass'n. v. Ferry-Morse Seed Co., [551 F.2d 1057 (6th Cir. 1977)]." Id. at 226.
• "In that Salant relied upon Clippard and Fluid Power to design, select and furnish it with a control system for a particular purpose, we also hold that upon the control system failing in that respect Clippard and Fluid Power would be guilty of breach of implied warranty that the control system designed and sold was fit for such purpose. T.C.A. Sec. 47-2-315; Fiddler's Inn, Inc. v. Andrews Distributing Co., [612 S.W.2d 166 (Tenn. Ct. App. 1980)]." Id.
• "On the issue of proof of defect as relates to an action based upon the breach of express and implied warranties, such proof may also consist of direct evidence, circumstantial evidence, or a combination of the two. Browder v. Pettigrew, supra. It has been held that a much lesser burden of proof of defect is required when suit is brought for breach of warranty than when brought under the theory of strict liability. [Leach v. Wiles, [429 S.W.2d 823 (Tenn. Ct. App. 1968)]. We adopt the reasoning of the Pennsylvania Superior Court in MacDougall v. Ford Motor Company, [257 A.2d 676 (Pa. Super. 1969)], wherein the court stated:

  Proof of the specific defect in construction or design causing a mechanical malfunction is not an essential element in establishing breach of warranty. 'When machinery 'malfunctions', it obviously lacks fitness regardless of the cause of the malfunction. Under the theory of warranty, the 'sin' is the lack of fitness as evidenced by the malfunction itself rather than some specific dereliction by the manufacturer in constructing or designing the machinery.' [citations omitted]"

  Id.
• "There was before the jury material evidence which, when viewed most favorably to the plaintiff, could be the basis of a cause of action under the theories of breach of warranties. We hold that the trial judge erred in directing a verdict for the defendants and in dismissing the plaintiffs' lawsuit based upon breach of express and implied warranties." Id.
• "Some argument is made concerning lack of privity in these lawsuits. We note that T.C.A. Sec. 29-34-104 provides:

  Privity not required.--In all causes of action for personal injury or property damage brought on account of negligence, strict liability or breach of warranty, including actions brought under the provisions of the Uniform Commercial Code, privity shall not be a requirement to maintain said action. [Acts 1972 (Adj. S.), ch. 670, Sec. 1; T.C.A., Sec. 23-3004.]

  This 1972 statute eliminates the requirement of 'vertical' privity in lawsuits covered by the act. Commercial Truck & Trailer Sales, Inc. v. McCampbell, (Tenn.1979) 580 S.W.2d 765." Id. at 227.

Other Sources of Note: Tenn. Code Ann. § 29-28-102 (defines product liability action to include all actions based upon breach of warranty, express or implied); Tenn. Code Ann. § 29-28-104 (privity is not required to maintain personal injury or property damage claim based on breach of warranty theory); Tenn. Code Ann. § 47-2-106 (defines "sale"); Tenn. Code Ann. § 47-2-105 (defines "goods"); T.P.I. - CIVIL 10.20 Breach of Warranty; Electric Power Bd. of Chattanooga v. Westinghouse Elec. Corp., 716 F.Supp. 1069 (E.D. Tenn. 1988) aff'd 879 F.2d 1368, reh'g denied, certiorari denied 493 U.S. 1022 (statute of repose for products liability applied to breach of warranty claim even though the claim accrued at tender of delivery); Baker v. Promark Products West, Inc., 692 S.W.2d 844, 847 (Tenn. 1985) (holding "that in a products liability action a cause of action for breach of warranty can be maintained against a lessor or bailor of personal property"); Commercial Truck & Trailer Sales, Inc. v. McCampbell, 580 S.W.2d 765, 773 (Tenn. 1979) (four year statute of limitations in Tenn. Code Ann. § 47-2-725 applies to actions for personal injury or property damage resulting from breach of warranty).