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Advanced Torts
University of Kentucky School of Law
Ausness, Richard C.


A. Privity Obstacle
1. Old rule: Winterbottom v. Wright—No action may be maintained against a remote seller. P must show that he contracted DIRECTLY w/ D. Cts were inclined to find a duty if it arose fr a K relationship. P did not K w/ the manuf directly, so he cannot bring suit

2. Development—cts modified this rule, allowing remote buyers (no privity) to recover for pers injury caused by an inherently dangerous defective product (usu guns, explosives, etc.)

3. Modern Rule—MacPherson v. Buick—Rejects Winterbottom rule
Held: one who negligently manufactures a product is liable for any personal injuries proximately caused by his neg.
F: wheel on P’s car broke, causing him injury. P had purchased car fr dealer, but sued D, manuf; issue is lack of privity between P and D.
R: Privity not reqd; rt of recovery arises fr tort law imposed by ct, not out of K. Not nec to show the product is inherently dangerous. Test is: Is the product reasonably certain to place life & limb in peril when neg made? [Buick could have discovered the defect through reasonable inspection]

Danger & knowledge that product will be used by other than purchaser w/o new tests, then manuf is under duty to make it carefully.
This is a neg case, but comes close to S/L

4. Today, defective warnings & defective design are governed by neg, but def manuf is covered by S/L

A. Express Warranty—UCC-2-313:
(1) Express warranty is created by the seller when:
(a) Any affirmation of fact or promise made by seller to buyer related to the goods that becomes part of the basis of the bargain creates an express warr that the goods shall conform to the aff or promise

(b) Any description of the goods which is a part of the basis of the bargain creates an EW that the goods shall conform to the description (e.g. safety guarantees, shatter-proof glass)

(c) Any sample or model, make part of the basis of the bargain, creates an EW that the goods shall conform to the sample or model (e.g. model TV on display)

(2) It is not nec to create a warr that the

(c) Fit for the ordinary purpose for which such goods are used
(d) Be of even kind, quality, & quantity w/ all units
(e) Adequately packaged & labeled as the agreement requires
(f) Conform to the promises/affirmations made on the container or label

4. To recover under 2-314, a P must prove:
a. A merchant sold the goods
b. Which were not merchantable at time of sale
c. Injury & damages to P or property
d. Were caused proximately & in fact by the defective nature of the goods; AND
e. Notice to seller of injury

5. Implied warrs more easily disclaimed than express; can be disclaimed by “as is” or “no warranty”

6. How do we know if goods are fit for the ord purpose for which such goods are used? Consider:
a. The usage in the trade
b. Price—is it about what is pd for working goods or defective?