Florida Litigation Guide

Breach of Implied Warranty -

[1] Elements and Case Citations

(1) Plaintiff purchased a product;

(2) Plaintiff was a foreseeable user of the product;

(3) Plaintiff was using the product in the intended manner at the time of the injury;

(4) The product was defective when transferred from the warrantor; and

(5) The defect caused the plaintiff’s injury.

Plaintiff must be in privity with seller to recover for breach of express or implied warranties. See Kramer v. Piper Aircraft Corp., 520 So. 2d 37, 38 (Fla. 1988). The plaintiff must give notice for statutory breach of warranty claims (§ 672.607(3)(a) Fla. Stat.) unless such notice is excused. See Monroe County v. Gonzalez, 593 So. 2d 1143, 1145 (Fla. 3d DCA 1992). Courts are divided over whether Florida’s adoption of the U.C.C. displaces common-law claims for breach of implied warranty. Compare Cardozo v. True, 342 So. 2d 1053, 1057 (Fla. 2d DCA 1977)(Florida’s U.C.C. does not displace common-law doctrine of implied warranty) and West v. Caterpillar Tractor Co., 336 So. 2d 80, 88 (Fla. 1976) (U.C.C. remedies are exclusive only where decreed by legislature) with Taylor v. American Honda Motor Co., 555 F. Supp. 59, 62 (M.D. Fla. 1982)(Florida’s U.C.C. provides the exclusive remedy for breach of implied warranty against a seller of goods).

____________________________________

Florida State Courts

Supreme Court: Weimar v. Yacht Club Point Estates, Inc., 223 So. 2d 100, 104 (Fla. 1969)

Second District: McCarthy v. Florida Ladder Co., 295 So. 2d 707, 709 (Fla. 2d DCA 1974)

Fourth District: Amoroso v. Samuel Friedland Enters., 604 So. 2d 827, 833 (Fla. 4th DCA 1992), aff’d 630 So. 2d 1067 (Fla. 1994)

Florida Federal Courts

Southern District: In re Asbestos Litigation, 679 F. Supp. 1096, 1098 (S.D. Fla. 1987)

Florida Statutes

§ 672.314, Fla. Stat.

[2] Defenses to Claim for Breach of Implied Warranty

(1) Fla. R. Civ. P. 1.110(d) (pleading affirmative defenses), and other standard defenses. See § 60.

(2) Statute of Limitations: § 95.11(3)(c),(e), Fla. Stat. (four years); see Elizabeth N. v. Riverside Group, Inc. 585 So. 2d 376, 377 (Fla. 1st DCA 1991) (§ 95.11(3)(p), Fla. Stat., governs claims for breach of implied warranty of habitability based on rape).

(3) Plaintiff/buyer must notify defendant/seller within a reasonable time after he or she discovers, or should have discovered, the breach. § 672.607(3)(a), Fla. Stat.

(4) Conspicuous disclaimers written in plain language are a defense to breach of warranty claims § 672.316(3)(a)-(c), Fla. Stat.; see also Parson v. Motor Homes of America, Inc., 465 So. 2d 1285, 1291 (Fla. 1st DCA 1985).

(5) A waiver signed by the aggrieved party is an absolute defense to breach of warranty claims. § 671.107, Fla. Stat.

(7) Plaintiff’s failure to properly reject the goods may serve to diminish the recovery of damages. See Central Florida Antenna Serv., Inc. v. A.M. Crabtree, 503 So. 2d 1351, 1353 (Fla. 5th DCA 1987); see also § 672.608, Fla. Stat.

(8) Product misuse will diminish the plaintiff’s recovery through comparative negligence. But compare Creviston v. General Motors Corp., 225 So. 2d 331, 334 (Fla. 1969) (product misuse is a defense to breach of warranty actions) with Standard Havens Products v. Benitez, 648 So. 2d 1192, 1197 (Fla. 1994) (product misuse reduces plaintiff’s recovery through comparative negligence).

(9) Assumption of the risk will diminish the plaintiff’s recovery through comparative negligence. West v. Caterpillar Tractor Co., 336 So. 2d 80, 92 (Fla. 1976).

(10) A military contractor is saved from liability when the contractor (a) had no or minimal input in the design of the product, or warned the military of the product’s risks and notified the military of alternative designs then reasonably known by the contractor, and (b) the military authorized the contractor to proceed despite the product’s dangerous design. Dorse v. Armstrong World Indus., Inc., 513 So. 2d 1265, 1269 (Fla. 1987).