Tort Law

Brien Roche

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Warranties-Implied Warranty of Merchantability.  

Warranties-Implied Warranty of Merchantability-Statutes

See Va. Code § 8.2-314 indicating that implied warranty of merchantability arises in sale by merchant.

Warranties-Implied Warranty of Merchantability-Cases

2006 Hubbard v. Dresser, Inc., 271 Va. 117, 624 S.E.2d 1.

In this product liability action, plaintiff was not required to plead the nature of the defect alleged to have caused the breach nor was the plaintiff required to establish the applicable standard of merchantability in the industry within its pleadings. Although those are things that must ultimately be proved by the plaintiff, they need not necessarily be pleaded.

2003 Pulte Home Corp. v. Parex, Inc., 265 Va. 518, 579 S.E.2d 188.

Pulte was sued by homeowner for defective stucco. Pulte cross-claimed against manufacturer alleging breach of implied warranty of merchantability. In particular, Pulte pleaded that if it was held liable to homeowner, then liability should be absorbed by the manufacturer. Pulte did not plead privity and as such, this consequential damage was not recoverable.

1999 Bayliner Marine Corp. v. Crow, 257 Va. 121, 509 S.E.2d 499.

Plaintiff purchased new boat with belief that it could achieve speeds of 30 miles per hour for purposes of reaching offshore fishing spots. In order to prove that a product is not merchantable, the complaining party must first establish the standard of merchantability in the trade. The record contained no evidence of the standard of merchantability in the offshore fishing boat trade. Nor did the record contain any evidence supporting a conclusion that a significant portion of the boat-buying public would object to purchasing an offshore fishing boat with the speed capability of the plaintiff’s boat. The evidence did not address the standard of merchantability in the trade or whether plaintiff’s boat failed to meet that standard. Thus, the court noted that plaintiff failed to prove that the boat would not “pass without objection in the trade” as required by Va. Code § 8.2-314(2)(a).

1999 Holmes v. LG Marion Corp., 258 Va. 473, 521 S.E.2d 528.

Plaintiff sued for attorney fees, enhanced damages, and compensatory damages for willful violation of Consumer Protection Act, Magnuson-Moss Warranty Act, and common-law claims relating to sale of defective vehicle. Award of attorney’s fees was substantially less than what plaintiff sought. The award was affirmed on appeal. The denial of enhanced damages by the court was affirmed. The dismissal of claim for implied warranty was erroneous, but error was harmless since damages were recoverable under that claim would have been the same as under the Consumer Protection Act. Breach of implied warranty of merchantability, plaintiff must first establish standard of merchantability in trade. This record contained no evidence of standard of merchantability in offshore fishing boat trade nor does evidence support conclusion that significant portion of boat-buying public would object to purchasing offshore fishing boat with speed capability of this boat. To be merchantable, goods must be such as would pass without objection in trade and are fit for the ordinary purchase for which such goods are used. Evidence in this case did not support that conclusion. Generally, issue of whether goods are fit for ordinary purpose for which they are used is in fact a question. In this case, plaintiff was able to utilize boat for 850 hours of use as of time of trial. A substantial portion of those hours were for offshore fishing. As such, evidence fails to establish that boat was not fit for ordinary purpose for which it was intended.

1998 Jeld-wen, Inc. v. Gamble, 256 Va. 144, 501 S.E.2d 393.

Child fell through screen that had defective latch on it. Issue before court was what was duty of manufacturer of ordinary window screen, that is neither designed nor manufactured to act as body restraint, to safeguard against misuse of screen for that purpose. In this case Court found that there was no legal duty owed therefore no basis for claim. Manufacturer is not required to supply accident proof product. Duty of manufacturer in this case was to produce window screen and frame fit for ordinary purpose for which it was to be used and safe for a reasonably foreseeable misuse that could cause injury. Ordinary use is to keep insects out. This would not include the screen serving as childproof restraint. Plaintiff asserts that evidence supports finding that defendant knew or should have known of existence of defect that permitted screen to have false latch appearance and that child could make contact with screen and cause screen to fall out of frame thereby resulting in injury to child. Inherent in this theory is assumption that screen would be used to provide balance and restraining support for child. That was not purpose of screen. Defect in this case is irrelevant since it was not reasonably foreseeable that screen would be used for balance and restraint.

1997 Beard Plumbing & Heating v. Thomson Plastics, Inc., 254 Va. 240, 491 S.E.2d 731.

Claim for implied warranty of merchantability. Privity is required to recover economic loss under Va. Code § 8.2-715(2) in spite of the language contained in § 8.2-318.

1992 Besser Co. v. Hansen, 243 Va. 267, 415 S.E.2d 138.

Plaintiff must prove product unreasonably dangerous either for use to which ordinarily put or for some other reasonably foreseeable purpose and that this condition existed when product left defendant’s hands. Plaintiff failed to meet this burden since product not unreasonably dangerous when used in intended fashion. Plaintiff’s unforeseeable use of product was cause of injury.

1982 Southern States Coop. v. Doggett, 223 Va. 650, 292 S.E.2d 331.

Action for breach of warranty of implied merchantability or fitness, where cattle had been poisoned by phorate, allegedly contained in feed supplement. Circumstantial evidence held sufficient to create jury issue. To recover, plaintiff must show: (1) product unreasonably dangerous for use to which it is ordinarily put, and (2) condition existed when product left defendant’s hands.

1981 Twin Lakes Mfg. Co. v. Coffey, 222 Va. 467, 281 S.E.2d 864.

Action for breach of implied warranty of merchantability in sale of mobile home. Buyers’ inspection of mobile home did not limit warranty as to latent defects. Merchantability is not equivalent to habitability in regards to housing.

1979 Flintkote v. Wilkinson, 220 Va. 564, 260 S.E.2d 229.

Implied warranty of floor tile.

1979 Featherall v. Firestone Tire & Rubber Co., 219 Va. 949, 252 S.E.2d 354.

No evidence to show breach of implied warranty of merchantability or fitness. To establish prima facie case, burden on plaintiff to show that (a) goods were unreasonably dangerous either for use to which they would ordinarily be put or for some other reasonably foreseeable purpose, and (b) this condition existed when goods left defendant’s hands. Moreover, there can be no recovery where there has been unforeseen misuse of article supplied. Pressurized system exploded, dislodging lid that struck plaintiff. Prima facie case made as to negligent failure to warn.

1975 Logan v. Montgomery Ward & Co., 216 Va. 425, 219 S.E.2d 685.

Implied warranty that gas stove reasonably fit for intended use. Stove exploded, it was never examined to determine cause of explosion. Explosion alone not establish that stove defective.

1975 Turner v. Manning, 216 Va. 245, 217 S.E.2d 863.

Accident involving hoist. Jury could have concluded that if hoist had been equipped with safety hook, accident would not have occurred. This is not sufficient to impose liability. Manufacturer is under duty to exercise ordinary care to design product reasonably safe for purpose for which it was intended.

1966 Levy v. Paul, 207 Va. 100, 147 S.E.2d 722.

There is, under Virginia common law, implied warranty of wholesomeness which attaches to restaurant-patron relationship. See Va. Code § 8.2-314.

1963 Bolling v. GMAC, 204 Va. 4, 129 S.E.2d 54.

Plaintiff filed bill in equity to enforce conditional sales contract of automobile. Defendant filed answer and cross-claim. Defendant desired jury trial as to issue of damage based on fraud and breach of implied warranty. Fact that defendant failed to file plea, and failed to plead fraud and breach of implied warranty, barred such claims.

1961 Smith v. Hensley, 202 Va. 700, 119 S.E.2d 332.

Where article is sold under exact description or under its patent or trade name, and where product has but one general purpose, then there exists implied warranty of merchantability or fitness of use whether or not buyer relies on judgment of seller.

1950 E.I. DuPont DeNemours & Co. v. Universal Moulded Prods. Corp., 191 Va. 525, 62 S.E.2d 233.

It is well settled that when one sells article of personal property, there is implied guarantee that it is reasonably serviceable and fit for peculiar uses to which vendor knows it is to be put. Common law recognized implied warranty of title and of quality based on implied representations, rather than on promises.

1943 Kroger Grocery v. Dunn, 181 Va. 390, 25 S.E.2d 254.

Dealer who sells unwholesome foodstuff for immediate consumption is responsible for any ill effects which may follow therefrom. He is liable for any negligent acts of his which should have been anticipated by prudent man and he is also liable on implied warranty.

For more information about warranties see the pages on Wikipedia.