Garthwait v. Burgio

Decision Date30 December 1965
Citation153 Conn. 284,216 A.2d 189
CourtConnecticut Supreme Court
Parties, 3 UCC Rep.Serv. 171 Ann L. GARTHWAIT v. Carole BURGIO et al. Supreme Court of Errors of Connecticut

Norman S. Drubner, Waterbury, for appellant (plaintiff).

Arnold J. Bai, Bridgeport, with whom was Charles M. Needle, Bridgeport, for appellee (defendant Clairol, Inc.).

Before KING C. J., and MURPHY, ALCORN, SHANNON and HOUSE, JJ.

HOUSE, Associate Justice.

This suit arose because of a hair tinting treatment the plaintiff received at a beauty parlor operated by the named defendant. The third count of the complaint alleges that the defendant Clairol, Inc., hereinafter referred to as Clairol, manufactures a hair dye known as 'Miss Clairol Hair Color Bath.' By means of extensive advertisements through the medium of radio, television, newspapers and magazines, Clairol implied 'and/or' expressly warranted to the plaintiff as a user of the product that the product was safe and fit for its intended use. It is further alleged that in reliance upon these representations the beauty parlor purchased the product from Clairol and the plaintiff accepted the beauty parlor's use of the product on her hair, as a result of which she sustained injuries. It is expressly alleged that Clairol failed to fulfil its express warranties and its implied warranties of merchantability and fitness for the purpose for which the product was intended and that the breach of these warranties by Clairol in regard to the plaintiff as a user of the product was a proximate cause of the injuries sustained by the plaintiff.

Clairol demurred to this count on the ground that it did not state a cause of action in breach of warranty since it failed to allege facts constituting a sale of goods to the plaintiff. The trial court sustained the demurrer, and, when the plaintiff failed to amend her complaint as permitted by § 131 of the Practice Book, it rendered judgment for Clairol on the third count. This appeal is from that judgment, and the single assignment of error is the ruling of the court in sustaining the demurrer.

The sole issue on the appeal, therefore, is whether privity of contract is an essential allegation in an action by a consumer or user against a manufacturer for alleged breach of the warranties of the fitness and safety of its product. Here there was no sale of the product to the plaintiff and hence no privity of contract between the plaintiff and Clairol. On the facts admitted by the demurrer, the plaintiff was in the category of a user rather than a purchaser, and on this appeal we must assume that she accepted the use of Clairol's product in reliance upon representations and warranties of safety and fitness made to her by Clairol's advertisements, which warranties Clairol failed to fulfil, thereby proximately causing her injuries.

Products liability isa rapidly developing field of law, particularly in the area of manufacturers' liability. The legal literature on the topic since Dean William L. Prosser's 1960 influential article, 'The Assault upon the Citadel (Strict Liability to the Consumer)' in 69 Yale Law Journal, page 1099, is voluminous. In addition to innumerable law review articles, two treatises are now devoted to the topic: Frumer & Friedman, Products Liability, and Hursh, American Law of Products Liability. The developing case law is reported extensively in the annotations in 74 A.L.R.2d 1111, 'Privity of contract as essential to recovery in negligence action against manufacturer or seller of product alleged to have caused injury,' and in 75 A.L.R.2d 39, 'Privity of contract as essential to recovery in action based on theory other than negligence, against manufacturer or seller or product alleged to have caused injury.' The latter annotation follows a report of the 1960 landmark case of Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1. In this case the New Jersey Supreme Court held that under modern conditions the old concept of privity of contract is inapplicable to the obligation of a manufacturer to the ultimate consumer, and a warranty exists in the ultimate consumer's favor on which, regardless of privity, the consumer may recover for injury due to defects in manufacture. The reasoning of this decision has been followed by a majority of the courts which have since ruled on the question. Many of these cases are collected in 1 Frumer & Friedman, Products Liability § 16A. Notable are the decisions of the California Supreme Court in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, and the New York Court of Appeals in Goldberg v. Kollsman Instrument Corporation, 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81. Most recently, in the case of Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182, the Illinois Supreme Court held that privity is not essential in an action for breach of implied warranty and that the manufacturer of a defective component part of a product may be held liable in tort for breach of implied warranty notwithstanding the absence of privity with the...

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62 cases
  • Bifolck v. Philip Morris, Inc., SC 19310
    • United States
    • Connecticut Supreme Court
    • December 29, 2016
    ...§ 402A of the Restatement (Second), under which a plaintiff need not establish the manufacturer's fault. See Garthwait v. Burgio , 153 Conn. 284, 289–90, 216 A.2d 189 (1965) ; 2 Restatement (Second), Torts, § 402A, comment (a), p. 348 (1965) (product seller is "subject to liability to the u......
  • Vitanza v. Upjohn Co.
    • United States
    • Connecticut Supreme Court
    • August 7, 2001
    ...(Second) of Torts.7 See Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 233, 429 A.2d 486 (1980) ("[i]n Garthwait v. Burgio, 153 Conn. 284, 216 A.2d 189 [1965], we accepted the principles adopted by the American Law Institute as contained in § 402A of the Restatement (Second), Torts......
  • El Bouamri v. City of New Haven
    • United States
    • Connecticut Superior Court
    • August 10, 2018
    ...to adopt the rule provided in § 402A. See J. Beasley, Products Liability and the Unreasonably Dangerous Requirement (1981) pp. 21, 201. In Garthwait, court stated: ‘Where the liability is fundamentally founded on tort rather than contract there appears no sound reason why the manufacturer s......
  • Lonzrick v. Republic Steel Corp.
    • United States
    • Ohio Supreme Court
    • June 15, 1966
    ...Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897; Vandermark v. Ford Motor Co., 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168; Garthwait v. Burgio, 153 Conn. 284, 216 A.2d 189; Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182; Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mic......
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3 books & journal articles
  • The Legal Framework of a Products Liability Case in Connecticut
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 67, 1992
    • Invalid date
    ...of Section 402A of the Restatement (Second) of Torts, 77 CORNELL L. REV. 1512 (1992). 9. PROSSER, supra note 7. 10. Garthwait v. Burgio 153 Conn. 284, 289, 216 A.2d 11. 44 Fed. Reg. 62,714-62,759 (1979). 12. § 103(a) of MUPLA provides: "This Act is in lieu of and preempts all existing law g......
  • Connecticut's Jury Instruction on Design Defect Is Defective: a Second Look at Potter v. Chicago Pneumatic Tool
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 84, 2010
    • Invalid date
    ...Jury Instructions, State of Connecticut Judicial Branch, 3.10-1, "Product Liability," at www.jud.ct.gov/JI/civil/part3/3.10-1.htm. 5. 153 Conn. 284, 216 A.2d 189 (1965). 6. Id. at 289-90. 7. 2 Restatement (Second) Of Torts, § 402A, comment (i). 8. See, e.g., Wagner v. Clark Equip. Co., 243 ......
  • The Useful Life Defense: Embracing the Idea That All Products Eventually Grow Old and Die
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 80, 2021
    • Invalid date
    ...law remedies as "ineffective"). 14. See Potter v. Chi. Pneumatic Tool Co., 694 A.2d 1319, 1330 (Conn. 1997) (citing Garthwait v. Burgio, 216 A.2d 189 (Conn. 1965), as one of the first cases to adopt the rule provided for in section 402A). 15. See Platt, supra note 8, at 307-08 (suggesting t......

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