Cardozo v. True, 76--1623
| Decision Date | 23 February 1977 |
| Docket Number | No. 76--1623,76--1623 |
| Citation | 342 So.2d 1053 |
| Parties | 21 UCC Rep.Serv. 69, 2 Media L. Rep. 1635 Ingrid CARDOZO and Joseph Cardozo, her husband, Plaintiffs, v. Norma TRUE a/k/a Norma A. True and Ellie's Book and Stationery, Inc., Defendants. |
| Court | Florida District Court of Appeals |
John Patterson of Livingston & Patterson, and James W. Cullis of Icard, Merrill, Cullis, Timm & Furen, Sarasota, for plaintiffs.
Andrew D. Owens, Jr. of Dart, Dickinson, O'Riorden, Gibbons & Quale, Sarasota, for defendant Ellie's Book and Stationery, Inc.
The Circuit Court for Sarasota County certified the following questions to this court pursuant to Fla.App. Rule 4.6(a):
I. IS A RETAIL BOOK DEALER LIABLE UNDER SECTION 672.314, FLORIDA STATUTES, TO A PURCHASER OF A COOKBOOK FOR HER INJURIES AND DAMAGES CAUSED BY IMPROPER INSTRUCTIONS OR LACK OF ADEQUATE WARNINGS AS TO POISONOUS INGREDIENTS USED IN A RECIPE?
II. IS A RETAIL BOOK DEALER LIABLE UNDER THE COMMON LAW OF IMPLIED WARRANTIES TO A PURCHASER OF A COOKBOOK FOR HER INJURIES FOR LACK OF ADEQUATE WARNINGS AS TO POISONOUS INGREDIENTS USED IN A RECIPE?
The plaintiffs' amended complaint set forth the essential facts which the trial court has summarized as follows:
'Norma True authored a book entitled 'Trade Winds Cookery', an anthology of recipes selected and prepared by her using tropical fruits and vegetables. It was published by a Virginia corporation, which sold the book to Ellie's Book and Stationery, Inc. Ellie's was and is a retail book dealer located in Sarasota, Florida.
On September 15, 1971, Ingrid Cardozo purchased a copy of 'Trade Winds Cookery' from Ellie's. Four days later, Mrs. Cardozo was using the book and following a recipe in it for the preparation and cooking of the Dasheen plant, commonly known as 'elephant's ears'. While preparing the roots for cooking, she ate a small slice and immediately experienced a burning of the lips, mouth, throat and tongue, coughing and gasping, and intense stomach cramps. This persisted over several days, despite medical care.
Defendant True did not answer plaintiff's complaint, and is not involved in this certificate. As to defendant Ellie's Mrs. Cardozo and her husband alleged that the book did not have adequate instructions; that it failed to warn that uncooked Dasheen roots are poisonous; and that the ingredients contained in the recipes for Dasheen plant dishes were inadequately tested to insure their safety for human consumption. It was further alleged that Ellie's impliedly warranted that the book was reasonably fit for its intended use, and that it was not, due to inadequate instructions and warning. Finally, it was alleged that Mrs. Cardozo's injuries and Mr. Cardozo's derivative claim were proximately caused by the breach of this warranty.'
It appears to us that our answer will be dispositive of the case as to the claim against Ellie's. See Fla.App. Rule 4.6(a). Of course, our answers do not bear on the plaintiffs' action against the defendant, True.
Plaintiffs argue that the first question is controlled by the Uniform Commercial Code (U.C.C.), Section 672.314, Florida Statutes; that the second question is answered by the common law of implied warranties. Section 672.314, Florida Statutes provides:
(1) Unless excluded or modified (§ 672.316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
(2) Goods to be merchantable must be at least 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
(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.
(3) Unless excluded or modified (§ 672.316) other implied warranties may arise from course of dealing or usage of trade.
Plaintiffs see the quoted statute as one of general applicability to all retail dealers in consumer goods. They point out that this section of the U.C.C. creates a statutory implied warranty of merchantability imposed by law on the merchant who regularly sells goods and that defendant Ellie's falls in that category in respect to the sale of books. And, while plaintiffs find no decisional law to directly support their contention that Ellie's is liable, the applicability of the statute, they maintain, is obvious from its plain meaning.
Defendant, while recognizing that Ellie's may be subject to the doctrine of implied warranty now imposed by the U.C.C., claims such warranty is limited to the physical characteristics of the books they sell and cannot be construed to include the thought processes conveyed by the author and produced in writing by the publishers of that book. They urge the practical impossibility of book sellers testing every recipe in the books they sell. Moreover, they contend that if such a burden were to be imposed upon the book seller, then the merchant would have to be an expert or retain an expert in every field embraced by the numerous publications they offer. Ultimately, they argue, this would mean the stores which now disseminate information would be forced to close with the resultant infringement on freedom of speech and expression.
The definition of 'goods' under the U.C.C. is sufficiently broad to include books. Section 672.105, Florida Statutes. Cf. Lake Wales Publishing Co. v. Florida Visitor, 335 So.2d 335 (Fla.App.2d DCA 1976), holding printed pamphlets as goods under U.C.C. Clearly, the defendant Ellie's qualifies as a merchant with respect to books. Section 672.314(1), Florida Statutes.
Thus, we approach the novel question of not whether Ellie's impliedly warranted the recipe book it sold to Mrs. Cardozo, but rather, the scope of that warranty. From reading Section 672.314(2), the requirement of merchantability most relevant here is (c) which requires goods to be 'fit for the ordinary purposes for which such goods are used.'
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