Ryan v. Atlantic Fertilizer & Chemical Co.

• Decision Date: 10 November 1987
• Docket Number: No. 86-1495,86-1495
• Citation: 12 Fla. L. Weekly 2586,515 So.2d 324
• Parties: 12 Fla. L. Weekly 2586, 6 UCC Rep.Serv.2d 98 Ronald RYAN, Appellant, v. ATLANTIC FERTILIZER & CHEMICAL COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 324

515 So.2d 324

12 Fla. L. Weekly 2586, 6 UCC Rep.Serv.2d 98

Ronald RYAN, Appellant, v. ATLANTIC FERTILIZER & CHEMICAL COMPANY, Appellee.

No. 86-1495.

District Court of Appeal of Florida,

Third District.

Nov. 10, 1987.

William Bruce Israel, Miami, for appellant.

Corlett, Killian, Hardeman, McIntosh & Levi and Leanne J. Frank and Robert A. Mercer, Miami, for appellee.

Before BARKDULL, HENDRY and BASKIN, JJ.

HENDRY, Judge.

Ronald Ryan appeals from an order granting a new trial on all issues in the cause pending before the trial court on motions of Atlantic Fertilizer for new trial and for judgment in accordance with motions for directed verdict.

We affirm the order for new trial on all issues.

The action originated as a collection claim brought by Atlantic against Ryan for purchased nursery supplies. Ryan counterclaimed alleging negligence and breach of warranty of fitness for a particular purpose. Atlantic raised the defenses of Ryan's comparative negligence and that of conspicuous disclaimer of warranty and limitation of damages (later struck by the court). At the close of all the evidence on the main claim, Atlantic moved for a directed verdict which was denied. Although Atlantic had alleged as an affirmative defense that Ryan was comparatively negligent, during the charge conference the judge denied this defense and refused to instruct the jury on this issue. The case was submitted to the jury solely on the issues of the outstanding account of Atlantic and for the damages sustained by Ryan on his counterclaim for negligence and breach of warranty. The trial court refused Atlantic's request for a special verdict on the two counterclaim counts. The jury returned a verdict for Ryan on the claim of Atlantic, and for Ryan on his counterclaim, and awarded money damages in the amount of $125,000.

Final judgment for Ryan was entered; Atlantic filed motions for new trial and for judgment in accordance with the motions for directed verdict. The trial judge granted Atlantic's motion for new trial as to all issues on the ground that the court had erred in refusing Atlantic's requested jury instruction on comparative negligence. Ryan appealed from the order granting Atlantic a new trial; Atlantic cross-appealed the trial court's denial of its motions for directed verdict as to both the collection claim and the counterclaim.

After gaining several years experience in the business, Ryan leased property in Homestead and opened his own nursery. In June 1981 he began buying supplies from Atlantic Fertilizer, a retail distributor. Among the items purchased were 37 rolls of plastic ground covering for weed control and approximately 80 cubic yards of potting soil. With use, the soil and plastic covering developed problems. After verification of the products' condition, and following company policy regarding customer complaints, Atlantic issued a full credit to Ryan for the two items. Shortly thereafter, Ryan abandoned the nursery and sold his remaining lease options to a third party for $5,000.

From June 1981 to April 1982, Ryan had charged a total of $8,648 for supplies to his Atlantic account. Of this amount he paid $553.17 and received a credit of $2,643.52 for the soil and plastic, leaving a balance of $5,444.77 for which Atlantic sought reimbursement.

At trial, Ryan neither disputed any of the statements or invoices he signed for purchases of the various supplies, nor did he allege that any items other than the soil and plastic were defective. Atlantic's collection claim was proven by computer generated invoices, a method of billing confirmed and accepted by Ryan. Because the account claim evidence was uncontradicted, it was required to be believed and not disregarded. Clements v. Plummer, 250 So.2d 287 (Fla. 1st DCA 1971). When the manifest weight and probative force of the evidence clearly requires a verdict for one party and the evidence is legally insufficient to support a verdict for the opposing party on a particular issue, it is the trial court's duty to direct a verdict. McAllister v. Miami Daily News, 154 Fla. 370, 17 So.2d 613 (1944).

In an action predicated upon negligence, Ryan had to plead and prove by the greater weight of the evidence three elements: the existence of a duty on the part of Atlantic to protect Ryan from the injury or damage of which he complains; the failure of Atlantic to perform that duty; and an injury or damage to Ryan which was proximately caused by such failure. Welsh v. Metropolitan Dade County, 366 So.2d 518 (Fla 3d DCA), cert. denied, 378 So.2d 347 (Fla.1979).

It is uncontradicted that Atlantic neither manufactured nor prepared the potting soil or the plastic covering. Nor did Atlantic modify them in any way prior to their distribution to customers. The defects, if any, appeared only after Ryan had potted plants in the soil and settled the plastic covering over the ground. Atlantic could not have reasonably discovered, warned about, or ameliorated them. See generally Masker v. Smith, 405 So.2d 432 (Fla. 5th DCA 1981); Skinner v. Volkswagen of America, Inc., 350 So.2d 1122 (Fla. 3d DCA 1977). It is well settled law that a retailer can be liable in negligence in a products liability action only if the retailer can be charged with actual or implied knowledge of the defect. See Carter v. Hector Supply Co., 128 So.2d 390 (Fla.1961). The record lacks evidence that Atlantic possessed either actual or implied knowledge of the alleged defects at time of sale.

Under the U.C.C. there are two distinct implied warranties, one of merchantability and the other of fitness for a particular purpose. Ryan counterclaimed against Atlantic based upon breach of an implied warranty of fitness for a particular purpose. Section 672.315, Florida Statutes, defines a warranty of fitness for a particular purpose:

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified ... an implied warranty that the goods shall be fit for such purpose. Section 672.315, Florida Statutes.

A "particular purpose" differs from the ordinary purpose for which the goods are used in that it envisages a specific use by the buyer which is peculiar to the nature of his business whereas the ordinary purposes for which the goods are used are those envisaged in the concept of merchantability and go to uses which are customarily made of the goods in question. Comment 2, Section 672.2-315, Florida Statutes Annotated.

Ryan's testimony demonstrated that he was using the plastic and soil for their ordinary purposes and not for any purpose peculiar to Ryan's business. Thus, the element of "particularity" was not shown. Regarding the element of reliance, Ryan's witness, an Atlantic employee, testified that Ryan "always knew exactly what he wanted" and that she had never counseled him as to what product to choose. This was verified by Ryan who stated that no one at Atlantic had made any representations of fact as to the products involved but had merely engaged in sales "puffing."

At the close of Ryan's evidence on the counterclaim, Atlantic moved for a directed verdict urging that the only allegations by Ryan, negligence and breach of implied warranty of fitness for a particular purpose, had not been shown. The trial court reserved ruling on the motion for directed verdict at that time. The motion was renewed at the close of all the evidence and denied.

While Ryan may have had a viable claim for breach of implied warranty of merchantability, pursuant to section 672.314, Florida Statutes, he chose instead to sue on fitness for a particular purpose. Ryan's failure to prove the elected required elements made his selection of remedy critically distinguishable.

Unless a claimant proves what his actual damages are and that the damages were actually caused by the other pa...