Duff v. Bonner Bldg. Supply, Inc.

• Decision Date: 11 July 1983
• Docket Number: No. 14822,14822
• Citation: 666 P.2d 650,105 Idaho 123
• Parties: , 36 UCC Rep.Serv. 1564 David DUFF, Plaintiff-Appellant, Cross-Respondent, v. BONNER BUILDING SUPPLY, INC., an Idaho corporation, Defendant-Respondent, Cross-Appellant.
• Court: Idaho Supreme Court

Page 650

666 P.2d 650

105 Idaho 123, 36 UCC Rep.Serv. 1564

David DUFF, Plaintiff-Appellant, Cross-Respondent, v. BONNER BUILDING SUPPLY, INC., an Idaho corporation, Defendant-Respondent, Cross-Appellant.

No. 14822.

Supreme Court of Idaho.

July 11, 1983.

R. Romer Brown, Coeur d'Alene, for plaintiff-appellant, cross-respondent.

Gary A. Finney, Sandpoint, for defendant-respondent, cross-appellant.

BAKES, Justice.

Appellant Duff bought lumber paneling, asserted to be kiln-dried, from respondent Bonner Building Supply. To be certified in the industry as kiln-dried, lumber must have a moisture content not exceeding 19%. However, in a group of 80 boards, four of those boards may have a moisture content of more than 19%, and the group will still qualify as kiln-dried.

Duff took the lumber which he had purchased to his home, stored it in his garage under cover, and gradually installed it as paneling in a living room in his home over a three week period. The paneling subsequently shrank, up to 1/2 inch in places, leaving unsightly gaps and necessitating a complete replacement of the wood. Duff then sued Bonner Building Supply in magistrate court to recover the cost of repair, alleging a breach of express and implied warranties. Bonner Building Supply asserted as a defense that the plaintiff was the cause of his own injury "due to the manner and method of installation of the lumber."

After a trial, the magistrate held that the respondent Bonner Building Supply had breached an implied warranty of merchantability, and that the breach of that warranty was the proximate cause of the appellant Duff's damages.

Bonner Building Supply appealed the magistrate's decision to the district court, asserting, among other issues, that the magistrate erred in failing to consider Duff's contributory negligence as a defense to his claim. The district court, relying on Hoffman v. Simplot Aviation, Inc., 97 Idaho 32, 539 P.2d 584 (1975), ruled that contributory negligence, in the sense of misuse, is a defense to a breach of warranty action, and reversed the magistrate and remanded the case, ordering the magistrate to determine the percentages of fault attributable to each party and apportion the damages.

Duff appealed the district court's decision, and the case was assigned to the Court of Appeals. In a decision issued August 4, 1982, the Court of Appeals reversed the district court and affirmed the magistrate's findings and judgment. Duff v. Bonner Building Supply, 103 Idaho 432, 649 P.2d 391 (Idaho App.1982). The Court of Appeals, distinguishing Hoffman v. Simplot Aviation, supra, and relying instead on Henderson v. Cominco American, Inc., 95 Idaho 690, 518 P.2d 873 (1973), refused to allow contributory negligence as a defense "where the alleged negligence consists only of failure to anticipate that the product might not conform to the warranty." 103 Idaho at 435, 649 P.2d 391.

Bonner Building Supply then filed a petition for review in this Court, alleging that the Court of Appeals erred in ruling that contributory negligence is not a defense to a breach of implied warranty. We granted the petition and affirm the Court of Appeals.

There are two distinct reasons for affirming the Court of Appeals. First, we find that the trial court did not err in ruling that any conduct on the part of the plaintiff was not the proximate cause of the injury, and thus could not reduce his recovery. Second, we agree with the Court of Appeals in its holding that contributory negligence, as such, cannot be asserted as a defense in a breach of warranty action.

On the issue of proximate cause, we initially note that the trial court specifically found that the breach of warranty by the defendant was the proximate cause of the damages which the plaintiff suffered. Also, in his findings of fact, the magistrate found that:

"While the manner in which Plaintiff installed the lumber in his home was not in accordance with good and prudent practices, and he should have equalized it, this was not a superseding cause of the damages."

There was evidence presented at trial supporting both findings on the issue of proximate cause. Experts testified that they would expect a shrinkage of only 3/16 to 1/4 of an inch if the lumber had been kiln-dried but not equalized. The trial court specifically found:

"Shrinkage of 1/2" in width occurred on some boards in Plaintiff's home. For that amount of shrinkage to occur, the moisture content of the board before shrinkage would have to be in excess of 24% ...."

The trial court noted that the 24% figure would be correct only if the board had a 0% moisture content before gathering moisture. Thus, because boards rarely reach a 0% moisture content, the boards bought by plaintiff probably had a moisture content greater than 24%. These findings by the magistrate indicate that the lumber sold to plaintiff was not kiln-dried lumber. Also, the evidence indicated that if the lumber had been kiln-dried, and the plaintiff failed to equalize it, no unsightly gaps would have appeared, even though the wood would have shrunk to some degree ( 3/16 to 1/4 of an inch) because that amount of shrinkage would not have caused the tongue and groove joints to completely separate as they did. The evidence sustains the trial court's findings that the unsightly gaps that produced the damage were caused only by the defendant's failure to supply kiln-dried lumber. Because these findings on proximate cause are supported by substantial, although conflicting evidence in the record, we would affirm the magistrate on this issue.

On the issue of contributory negligence, numerous courts have considered, and differed in their opinions on whether contributory negligence can be asserted in a breach of warranty action. Much of the confusion stems from the fact that a breach of warranty action is based on a contractual claim, but when viewed in a products liability context it seems to contain some elements of tort law. Hence, there is a split of authority on the question of whether contributory negligence, a negligence defense, is applicable to a breach of warranty action. See Annot., 4 A.L.R.3d 501 (1965), and cases cited therein.

We have previously considered the question of whether contributory negligence is a defense to strict...