Long v. Flanigan Warehouse Co., 4583

• Decision Date: 22 May 1963
• Docket Number: No. 4583,4583
• Citation: 382 P.2d 399,79 Nev. 241
• Parties: Lewis G. LONG, Appellant, v. FLANIGAN WAREHOUSE COMPANY and Inland Ladder Co., a corporation, Respondents.
• Court: Nevada Supreme Court

Page 399

382 P.2d 399

79 Nev. 241

Lewis G. LONG, Appellant, v. FLANIGAN WAREHOUSE COMPANY and Inland Ladder Co., a

corporation, Respondents.

No. 4583.

Supreme Court of Nevada.

May 22, 1963.

Nada Novakovich, Reno, for appellant.

Leslie A. Leggett, Reno, for respondent Flanigan Warehouse Co.

Vargas, Dillon & Bartlett and Alexander A. Garroway, Reno, for respondent Inland Ladder Co.

THOMPSON, Justice.

The plaintiff (Long) brought suit for damages against the retailer (Flanigan Warehouse Company) and the manufacturer (Inland Ladder Co.) of a wooden ladder. The retailer ordered the ladder from the manufacturer on January 22, 1960. It was delivered to the retailer's warehouse on January 26, 1960. On February 1, 1960 the retailer sold the ladder to a painting contractor (Solvas). It was used occasionally thereafter. The plaintiff, a painter employed by Solvas, claims that on August 12, 1960, a leg of the ladder split and collapsed because of defective construction; that he was standing on the fourth step of the ladder when its left rear leg collapsed; and that he fell to the floor and was injured.

The plaintiff's claim for relief against each defendant is two-fold: breach of the implied warranties of quality, fitness for a particular purpose (N.R.S. 96.240(1)) and merchantability (N.R.S. 96.240(2)), and negligence. The case was presented to a jury. At the close of the plaintiff's case in chief, each defendant moved for involuntary dismissal. NRCP 41(b). The motion of the retailer was granted. As to it, the district court ruled that the lack of privity barred liability on the implied warranty theory. Regarding the negligence claim, that court concluded that the law does not impose a duty upon the retailer to inspect or test the ladder for latent defects. Accordingly, its failure to do so did not result in a breach of duty giving rise to a cause of action in the plaintiff based on negligence.

The manufacturer's motion to dismiss was also granted as to the implied warranty count, and for the same reason, lack of privity. However, its motion was denied as to the negligence claim, and the case proceeded against the manufacturer on that theory alone. The jury returned its verdict for the manufacturer. From the judgments entered the plaintiff appeals.

The assigned errors require our determination of the following questions: 1. Does the user of a chattel have a claim for relief against a retailer or the manufacturer, or both, based upon a breach of the implied warranties of quality, absent a contractual relationship (privity)? 2. Should the concept of strict liability (liability without fault) which issue was not presented to the trial court, apply to the claim of a user of a chattel against either the retailer or the manufacturer? ¹ 3. Does the retailer of a chattel have the duty to inspect or test it for latent defects? 4. Were certain questions (to later be specified) asked by plaintiff's counsel of an adverse witness during the plaintiff's case in chief, to which objections were sustained, relevant or material to the issues raised in the case against the manufacturer?

The questions relating to the implied warranties of quality as a predicate for the retailer's and manufacturer's liability to one not in privity, are of first impression in Nevada. The lack of privity as a defense has been asserted by counsel and rejected by this court in two cases. Underhill v. Anciaux, 68 Nev. 69, 226 P.2d 794 (foreign substance in Coca Cola bottle), and Cosgriff Neon Sign Company v. Mattheus, 78 Nev. 281, 371 P.2d 819 (collapsing brick pylon). However, in each instance, liability was based on negligence. Implied warranty as a predicate for liability was not involved in Cosgriff, while in Underhill though it was pleaded the point was not decided. ² Clearly the absence of contractual privity is not a defense for one whose liability rests in tort. For this reason the asserted defense was rejected in Cosgriff and Underhill. We must now decide whether such want of privity is a defense to a claim for relief based upon a breach of the implied warranties of quality.

1. In Nevada the implied warranties of quality on the sale of goods are governed by the Uniform Sales Act. They are two: (a) a warranty that the goods are reasonably fit for the particular purpose of the buyer, when he makes that purpose known to the seller and it appears that he relies on the seller's skill or judgment, N.R.S. 96.240(1). (See Kirk v. Stineway Drug Store Co., 38 Ill.App.2d 415, 187 N.E.2d 307, for an excellent discussion as to the proof of the seller's representation and the buyer's reliance.) (b) a warranty of merchantable quality, when goods are bought by description from one who deals in goods of that description, N.R.S. 96.240(2). No warranty is to be implied unless the case falls within one of the two mentioned categories. The present case does not involve the warranty of merchantable quality. A sale by description does not occur when the goods are present and there is an opportunity to inspect. Adams v. Peter Tramontin Motor Sales, Inc., 42 N.J.Super. 313, 126 A.2d 358; Grass v. Steinberg, 331, Ill.App. 378, 73 N.E.2d 331.

Though the implied warranty of fitness for a particular purpose might be a predicate for recovery against the retailer, had the plaintiff himself purchased the ladder, Kirk v. Stineway Drug Store Co., supra, it is not here an available remedy, because the ladder was purchased by plaintiff's employer. The terms 'seller' and 'buyer,' are defined by the act, N.R.S. 96.020. Those definitions appear to have been drawn with the immediate parties to the sale (or their legal successors in interest) in mind. The buyer's employee is not embraced by the statutory definition. Where the parties to the law suit are not the immediate buyer and seller the weight of authority is that such lack of contractual privity will bar recovery on an implied warranty theory. 75 A.L.R.2d 39; Prosser, Torts (2d ed.), p. 510. The Uniform Sales Act places many additional obstacles in the path of liability in the case before us. The most eminent scholar in this field of law, William L. Prosser, discusses them, 69 Yale L.J. 1009, at 1124 et seq., and concludes: 'What all this adds up to is that 'warranty,' as a device for the justification of strict liability to the consumer, carries far too much luggage in the way of undesirable complications, and is leading us down a very thorny path. The courts which quote, in nearly every other case, the statement that 'the remedies of injured consumers ought not to be made to depend upon the intricacies of the law of sales,' have proceeded to entangle themselves in precisely those intricacies like Laocon and his sons. All this is pernicious and entirely unnecessary. No one doubts that, unless there is privity, liability to the consumer must be in tort and not in contract. There is no need to borrow a concept from the contract law of sales; and it is 'only by some violent pounding and twisting' that 'warranty' can be made to serve the purpose at all. Why talk of it? If there is to be strict liability in tort, let there be strict liability in tort, declared outright, without an illusory contract mask.'

However, some recent decisions have declared that lack of privity is not a defense to a claim based upon breach of implied warranty. Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 90 N.W.2d 873; Continental Copper & Steel Industries v. E. C. 'Red' Cornelius, 104 So.2d 40 (Fla.App.1958); B. F. Goodrich v. Hammond, 10 Cir., 269 F.2d 501; Jarnot v. Ford Motor Co., 191 Pa.Super. 422, 156 A.2d 568; dictum Beck v. Spindler, 256 Minn. 543, 99 N.W.2d 670 (Minn.); Henningsen v. Bloomfield Motors, 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1. We decline to follow their reasoning. Clarity in our law will not be served by applying the Uniform Sales Act to parties for whom its provisions were not designed. If liability is to be placed upon either the retailer or the manufacturer, it must rest upon (a) his negligence, or (b) upon a declared public policy that one who sells a product in a condition dangerous for use shall be strictly liable to its ultimate user for injuries resulting from such use, although the seller has exercised all reasonable care and the user has entered into no contractual relation with him (liability without fault). We therefore hold that, as a matter of law, the district court properly granted the motions for the involuntary dismissal of the claims asserting a breach of the implied warranties of quality.

2. We turn next to discuss briefly the concept of strict liability in tort. In Greenman v. Yuba Power Products, Inc., Cal., 27 Cal.Rptr. 697, 377 P.2d 897, Justice Traynor, writing for a unanimous court, discarded the shackles of contract warranties and candidly declared that, 'A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.' California has thus judicially declared its public policy....