ROBERTA L. BERNSTEIN AND AKLBA BERNSTEIN, HER HUSBAND, APPELLANTS,
v.
LILY-TULIP CUP CORPORATION, A DELAWARE CORPORATION, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A manufacturer is liable in implied warranty to a consumer injured by a defective product, even without privity of contract.
A plaintiff was injured when a paper cup manufactured by the defendant came apart, spilling hot liquid. The trial court struck the implied warranty co…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Implied Warranty cases and more on FLexlaw
This is the plaintiffs’ appeal of a summary final judgment rendered in favor of the defendant.
The facts giving rise to this law suit are not complex. Plaintiff, wife, while a patient in a hospital, was served a hot drink in a paper cup manufactured by the defendant. The body of the cup came apart from the handle causing the hot contents to spill on plaintiff resulting in her being scalded. Plaintiffs then filed their complaint seeking damages on the theories of negligence and breach of implied warranty* On defendant’s motion the implied warranty count was stricken on the theory that no privity of contract existed between the parties. The trial court noted that since the product causing the injury was neither-a food stuff nor inherently dangerous,, privity between the parties is required,.
The cause came on for pretrial confer-ence, at the conclusion of which plaintiffs’ ■counsel stated for the record that he was in no position to establish negligence in the manufacture of the cup; but, that he proposed to rely on the doctrine of res ipsa loquitur. The court noted that the pleadings afforded no basis for reliance upon res ipsa loquitur. Plaintiffs chose not to amend and thereafter suffered the summary judgment herein appealed.
The crucial point on appeal is whether the trial court properly struck the implied warranty count of plaintiffs’ complaint.
The law in Florida is well settled that a manufacturer will be held liable in implied warranty without privity to a consumer injured by a defective product manufactured for human consumption or other intimate bodily use.1
In a 1953 case 2 brought against a wholesaler not in privity with the plaintiff buyer, *364liability based on breach of implied warranty was sustained against the wholesaler for mislabeling watermelon seed. In its opinion our Supreme Court stated:
' “There is a conflict of opinion about the accountability of a manufacturer to a consumer on the theory of implied warranty in the absence of privity, but this court has become alined with those ■ courts holding that suit may be brought against the manufacturer notwithstanding want of privity.” 3
When this court had before it a suit brought by a consumer against the manufacturer of underground electrical cable that became defective, we relied on the Blanton and Hoskins cases4 and observed that:
“It appears that the courts have departed from the general rule that recovery could not be had from a manufacturer on an implied warranty absent privity of contract.” 5
Appellee urges that Carter v. Hector Supply Co.6 is authority for the proposition that privity is still required for a consumer to maintain an action against a manufacturer. We disagree. In the Carter case our Supreme Court emphasized that the case before it involved a retailer and not a manufacturer. The court then expressed its precise holding in the following language :
“The sum of our holding here simply is that one who is not in privity with a retailer has no action against him for breach of an implied warranty, . except in situations involving foodstuffs or perhaps dangerous instru-mentalities, a problem not presently here.” 7
In 1962 our Supreme Court modified the rule requiring privity in a suit on implied warranty against a retailer, when the court permitted a minor plaintiff for whose benefit the sale was made, to maintain an action notwithstanding lack of privity.8
In an earlier case9 a prospective purchaser was testing an aluminum lawn chair when certain of the mechanical parts severed his finger. Our Supreme Court held the manufacturer liable under the theory of implied warranty but cited the Restatement of Torts10 which holds a manufacturer liable in negligence if a defective plan or design makes a product dangerous for normal use. The Matthews case has been cited as authority for recovery on the basis of negligence11 and implied warranty.12
We fully recognize that the Florida law has not reached the point where the doctrine of privity has been removed in all suits based upon implied warranty. However, itpon our review of the law we conclude that privity no longer obtains in an implied warranty suit by a consumer against a manufacturer.
For the foregoing reasons the judgment appealed is reversed and the cause remanded for further proceedings consistent with the views herein expressed.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
-
West v. Caterpillar Tractor Co., Inc., 336 So. 2d 80 (Fla. 1976)…those courts holding that a consumer could bring a suit on the theory of implied warranty against the [*85] manufacturer for improper labeling of seed notwithstanding want of privity. The District Court of Appeal in Berstein v. Lily-Tulip Cup Corp., 177 So. 2d 362, 364 (Fla.App. 3d 1965) receded further from the privity requirement when it said: “We fully recognize that the Florida law has not reached the point where the doctrine of privity has been removed in all suits based upon implied warranty. However,…
-
Lily-Tulip CUP Corp. v. Bernstein, 181 So. 2d 641 (Fla. 1966)…of a product that is neither a dangerous instrumentality nor a foodstuff. In the decision under review the District Court held that privity is not an essential element of the cause of action. Bernstein v. Lily-Tulip Cup Corporation, Fla.App. 1965, 177 So. 2d 362. We have carefully reviewed the opinion submitted to us. It is in accord with the law of this jurisdiction. We, therefore, approve the opinion of the District Court in all respects. The writ is discharged. It is so ordered. [*642] THORNAL, C. J.,…
-
Cedars OF Lebanon Hosp. Corp. v. European X-Ray Distribs. OF Am., Inc., 444 So. 2d 1068 (Fla. 3d DCA 1984)…1965, the development in the law of implied warranty reached a point where this court could state that “we conclude that privity no longer obtains in an implied warranty suit by a consumer against a manufacturer.” Bernstein v. Lily-Tulip Cup Corp., 177 So. 2d 362, 364 (Fla. 3d DCA 1965), aff'd, 181 So. 2d 641 (Fla.1966). With that statement, it appeared that the doctrine of privity was dead in Florida, at least with regard to suits to recover for personal injuries caused by defective products. When the Unifo…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Williams v. Surf Props., Inc., 88 So. 2d 299 (Fla. 1956)
- Oneida Langley Blanton v. THE Cudahy Packing Co., 154 Fla. 872 (Fla. 1944)
- Green v. The Am. Tobacco Co., 154 So. 2d 169 (Fla. 1963)
- Smith v. Smith, 144 Fla. 500 (Fla. 1940)
- Carter v. Hector Supply Co., 128 So. 2d 390 (Fla. 1961)
- McBURNETTE v. Playground Equip. Corp., 137 So. 2d 563 (Fla. 1962)
- Cont'l Copper & Steel Indus., Inc. v. E. C. "RED" Cornelius, Inc., 104 So. 2d 40 (Fla. 3d DCA 1958)
- Hoskins v. Jackson Grain Co., 63 So. 2d 514 (Fla. 1953)
- Rawls v. Ziegler, 107 So. 2d 601 (Fla. 1958)
- Wagner v. Mars, Inc., 166 So. 2d 673 (Fla. 2d DCA 1964)