University of Kentucky UKnowledge Law Faculty Scholarly Articles Law Faculty Publications Spring 1972 From Caveat Emptor to Strict Liability: A Review of Products Liability in Florida Richard C. Ausness University of Kentucky College of Law, [email protected] Follow this and additional works at: https://uknowledge.uky.edu/law_facpub Part of the Torts Commons Right click to open a feedback form in a new tab to let us know how this document benefits ou.y Recommended Citation Richard C. Ausness, From Caveat Emptor to Strict Liability: A Review of Products Liability in Florida, 24 U. Fla. L. Rev. 410 (1972). This Article is brought to you for free and open access by the Law Faculty Publications at UKnowledge. It has been accepted for inclusion in Law Faculty Scholarly Articles by an authorized administrator of UKnowledge. For more information, please contact [email protected]. From Caveat Emptor to Strict Liability: A Review of Products Liability in Florida Notes/Citation Information University of Florida Law Review, Vol. 24, No. 3 (Spring 1972), pp. 410-432 This article is available at UKnowledge: https://uknowledge.uky.edu/law_facpub/346 FROM CAVEAT EMPTOR TO STRICT LIABILITY: A REVIEW OF PRODUCTS LIABILITY IN FLORIDA RICHARD C. AUSNESS" Since the doctrine of caveat emptor1 gave way to a more enlightened response,2 the courts have struggled to place the law of products liability on a proper doctrinal foundation. Negligence, implied warranty, and strict liability have been used,3 but as yet no universally accepted theory has emerged.4 In light of this problem this article will trace the development of seller's liability in Florida. Special emphasis will be placed upon implied warranty;5 in addition, the relationship between existing Florida case law, strict liability under the Restatement of Torts~6 and the warranty provisions of the Uniform Commercial Code7 will be examined. Breach of warranty was originally tortious in nature and similar to deceit.8 During the eighteenth century the action in assumpsit based on ex­ press warranty evolved.9 The implied warranty of merchantability was first recognized in 1815,10 while the implied warranty of fitness appeared later.ll • B.A. 1966, J.D. 1968, University of Florida; Assistant Professor of Law, University of Florida. 1. See generally Hamilton, The Ancient Maxim Caveat Emptor, 40 YALE L. J. 1133 (1931). 2. "Modern products liability law proclaims the death of caveat emptor and the eco­ nomic background it once reflected: a miscellany of sellers and buyers bargaining with each other in circumstances of relatively equal financial power and technical sophistication." Dickerson, The ABC's of Products Liability - With a Close Look at Section 402A and the Code, 36 TENN. L. REV. 439, 440 (1969). 3. In this article the term "implied warranty" will be used in connection with liability arising out of a sale, irrespective of such liability being limited by privity. The term "strict liability" will apply exclusively to strict liability in tort under RESTATEMENT (SECOND) OF TORTS §402A (1965). 4. There are literally hundreds of articles on the subject of products liability. Some of the most recent ones include: Dewey, Products Liability Without Privity: Contract, Warranty or Tort, 45 ST. JOHNS L. REv. 76 (1970); Prosser, Products Liability in Per· spective, 5 GONZAGA L. REv. 157 (1970); Shanker, Pigeonholes, Privity, and Strict Products Liability, 21 CASE W. RES. L. REV. 772 (1970); Note, Products Liability: A Synopsis, 30 OHIO ST. L.J. 551 (1969). 5. The two basic warranties in the law of sales are merchantability and fitness for a particular purpose. The warranty of merchantability states that the product is of average quality and fit for the ordinary purposes for which such products are used. UNIFORM COMMERCIAL CODE §2-314. The warranty of fitness states that the product is suitable for a particular purpose where the seller is aware of the purpose and the buyer relies on the seller's judgment. UNIFORM COMMERCIAL CODE §2-315. 6. REsTATEMENT (SECOND) OF TORTS §402A (1965). 7. UNIFORM COMMERCIAL CODE §§2-314 to -318. 8. Ames, The History of Assumpsit, 2 HARV. L. REv. I, 8 (1888); Wade, Strict Tort Liability of Manufacturers, 19 Sw. L.J. 5 (1965). 9. Stuart v. Wilkins, 99 Eng. Rep. 15 (K.B. 1778). 10. Gardiner v. Gray, 171 Eng. Rep. 46 (H.L.1815). 11. See Jones v. Just, L.R. 3 Q.B. 197 (1868). [410] 1972 PRODUCTS LIABILITY IN FLORIDA 411 During the nineteenth century the leading English Case, Winterbottom v. Wrightp was interpreted by American courts to limit the seller's liability for defective products, even in tort,13 to those in privity with him.14 The privity requirement continued until 1916 when the celebrated opinion of Justice Cardozo in MacPherson v. Buick Motor CO.15 dismissed privity from products liability actions in negligence. The MacPherson decision was ac­ corded immediate acceptance16 and has been universally followed.17 Its reasoning has been extended to members of the purchaser's family,18 em­ ployees,l9 subsequent purchasers,2o others users of the chattel,21 and by­ standers,22 as well as to property damage.23 Although the plaintiff's burden in negligence was eased by a constant tightening of the seller's standard of care24 and by liberal use of res ipsa loquitur,25 considerable pressure remained for the application of some principle of liability without fault. In 1913, after prolonged agitation over unwholesome food, Washington,26 followed by Kansas,27 Mississippi,28 and other states,29 dispensed with the re­ quirement of privity where food was involved. Numerous theories were offered to justify the imposition of liability upon sellers in the absence of both negli­ gence and privity of contract. Finally, in 1927 the Mississippi court proposed 12. 152 Eng. Rep. 402 (Ex. 1842). The case held that the breach of a contract to keep a mailcoach in repair after it was sold could give no cause of action in contract to a pas­ senger in the coach who was injured when it collapsed. See W. PROSSER, TORTS §93, at 622 (4th ed. 1971). 13. E.g., Stone v. Van Noy R.R. News Co., 153 Ky. 240, 154 S.W. 1092 (1913); Lebourdais v. Vitrified Wheel Co., 194 Mass. 341, 80 N.E. 482 (1907); Liggett &: Myers Tobacco Co. v. Cannon, 132 Tenn. 419, 178 S.W. 1009 (1915); Burkett v. Studebaker Bros. Mfg. Co., 126 Tenn. 467, 150 S.W. 421 (1912); Hasbrouck v. Armour &: Co., 139 Wis. 357, 121 N.W. 157 (1909). 14. See generally Comment, The Contractual Aspects of Consumer Protection: Recent Developments in the Law of Sales Warranties, 64 MICH. L. REv. 1430 (1965). 15. 217 N.Y. 382, 111 N.E. 1050 (1916). 16. Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 59 YALE L.J. 1099, 1100 (1960). 17. W. PROSSER, supra note 12, §96, at 643. 18. E.g., Baker v. Sears Roebuck &: Co., 16 F. Supp. 925 (S.D. Cal. 1936). 19. E.g., Rosebrock v. General Elec. Co., 235 N.Y. 227, 14(1 N.E. 571 (1923). 20. E.g., Quackenbush v. Ford Motor Co, 157 App. Div. 433, 153 N.Y.S. 131 (3d Dep't 1915). 21. E.g., Carpini v. Pittsburgh &: Weirton Bus Co., 216 F.2d 404 (3d Cir. 1954); Reed &: Barton Corp. v. Maas, 73 F.2d 359 (1st Cir. 1934). 22. E.g., Gaidry Motors, Inc. v. Brannon, 258 S.W.2d 527 (Ky. 1953); McLeod v. Linde Air Prod. Co., 318 Mo. 397, 1 S.W.2d 122 (1927); Hopper v. Charles Cooper &: Co., 104 N.J.L. 93, 139 A. 19 (Ct. Err. &: App. 1927). 23. E.g., Todd Shipyards Corp. v. United States, 59 F. Supp. 609 (D. Me. 1947). 24. Keeton, Recent Decisions and Developments in the Law of Products Liability, 32 INS. COUNSEL J. 620, 620-23 (1965). 25. Kessler, Products Liability, 76 YALE L.J. 887, 899 (1967). 26. Mazetti v. Armour &: Co., 75 Wash. 622, 135 P. 633 (1913). 27. Parks v. G.C. Yost Pie Co., 93 Kan. 334, 144 P. 202 (1914). 28. Jackson Coca·Cola Bottling Co. v. Chapman, 106 Miss. 864, 64 So. 791 (1914). 29. Epstein, Strict Liability in Tort: A Modest Proposal, 70 W. VA. L. REv. 1, 9 (1967); Keeton, Products Liability-Current Developments, 40 TEXAS L. REv. 193, 205-06 (1961). 412 UNIVERSITY OF FLORIDA LAW REVIEW [Vol. XXIV the idea of an implied warranty running with the goods from the manufac­ turer to the consumer similar to a covenant running with land.30 This propo­ sition was later discarded for the theory of an implied warranty made directly to the consumer,31 but since that time implied warranty3Z has served as the basis of a seller's liability for food as well as other products.33 A warranty, implied from the nature of the transaction34 or the relative situations of the parties,35 arises by operation of law, irrespective of the seller's intention.36 However, it is still associated with contract31 principles such as privity.as Warranty, to the extent it is available to the litigant, is superior to negligence because it imposes a form of liability without fault upon the seller of goods.39 Defenses such as contributory negligence40 and assumption of risk41 are not entirely effective, since the defendant's standard of care is not normally at issue. The privity requirement has also been circumvented in a number of cases holding that commercial advertising and labeling techniques of manufacturers give rise to express warranties upon which the 30. Coca·Cola Bottling Works v. Lyons, 145 Miss.