O.C.G.A. § 11-2-314 (2019)

Annotations

Cross references. Misbranding of pesticides or devices, § 2-7-53. Labeling of fertilizer, § 2-12-6. Misbranding of commercial feed, § 213-9. Standards for, labeling of, and adulteration of, food generally, T. 26, C. 2. Products liability actions, § 51-1-11. Civil action for knowing or negligent selling of unwholesome provisions to another person by use of which damage results to purchaser or the purchaser’s family, § 51-1-23 et seq. Nonapplicability of implied warranties to blood transfusions and organ transplants, § 51-1-28. Law reviews. For comment on Felder v. Neeves, 36 Ga. App. 41, 135 S.E. 219 (1926), see Ga. L. Rev. No. 1 P. 51 (1927). For comment on Davis v. Williams, 58 Ga. App. 274, 198 S.E. 357 (1938), see 1 Ga. B.J. 41 (1939). For article discussing manufacturer’s warranty of merchantability and fitness under former Code 1933, § 96-307, see 10 Mercer L. Rev. 272 (1959). For comment on Revlon, Inc. v. Murdock, 103 Ga. App. 842, 120 S.E.2d 912 (1961), see 24 Ga. B.J. 271 (1961). For article, “Sales Warranties Under

Georgia’s Uniform Commercial Code,” see 1 Ga. St. B.J. 191 (1964). For note discussing implied warranties in the sale of second-hand goods, see 17 Mercer L. Rev. 455 (1966). For article, “Georgia’s New Statutory Liability for Manufacturers: An Inadequate Legislative Response,” see 2 Ga. L. Rev. 538 (1968). For article discussing aspects of third party practice (impleader) under the Georgia Civil Practice Act, see 4 Ga. St. B.J. 355 (1968). For note discussing products liability actions based on breach of implied warranty under the Uniform Commercial Code, see 4 Ga. L. Rev. 164 (1969). For article, “Consumer Protection Against Sellers Misrepresentations,” see 20 Mercer L. Rev. 414 (1969). For comment discussing evolution of the implied warranty of habitability in sales of new homes in light of Humber v. Morton, 426 S.W.2d 554 (Tex. 1968), and criticizing absence of this doctrine in Georgia law, see 20 Mercer L. Rev. 464 (1969). For article discussing interpretation of warranties under the Uniform Commercial Code, see 4 Ga. L. Rev. 469 (1970). For note, “Allowance of Punitive Damages in Products Liability Claims,” see 6 Ga. L. Rev. 613 (1972). For note, “Buyer’s Right to Revoke Acceptance Against the Automobile Manufacturer for Breach of its Continuing War-

ranty of Repair or Replacement,” see 7 Ga. L. Rev. 711 (1973). For article discussing the implied warranty of fitness for a particular purpose, see 9 Ga. L. Rev. 149 (1974). For article, “Products Liability Law in Georgia: Is Change Coming?,” see 10 Ga. St. B.J. 353 (1974). For article explaining the Unfair Trade Practices and Consumer Protection Act, proposed in Georgia in 1973, see 10 Ga. St. B. J. 409 (1974). For comment on Redfern Meats, Inc. v. Hertz Corp., 134 Ga. App. 381, 215 S.E.2d 10 (1975), see 27 Mercer L. Rev. 347 (1975). For article discussing modification of consumer warranty provisions of the U.C.C. by the Magnuson-Moss Act (15 U.S.C. §§ 2301-2312) with special emphasis on attempted disclaimers, see 27 Mercer L. Rev. 1111 (1976). For article discussing strict liability for defective products in Georgia, see 13 Ga. St. B.J. 142 (1977). For comment on Fender v. Colonial Stores, Inc., 138 Ga. App. 31, 225 S.E.2d 691 (1976), see 28 Mercer L. Rev. 751 (1977). For comment discussing the prohibition of wrongful death suits under Georgia’s strict liability in Ford Motor Co. v. Carter, 239 Ga. 657, 238 S.E.2d 361 (1977), see 29 Mercer L. Rev. 649 (1978). For article discussing applicability of implied warranty provisions of the Uniform Commercial Code to construction contracts, see 28 Emory L.J. 335 (1979).

For article, “Buyer’s Right of Rejection: A Quarter Century Under the Uniform Commercial Code, and Recent International Developments,” see 13 Ga. L. Rev. 805 (1979). For article discussing the applicability of warranty provisions under the Uniform Commercial Code to domestic solar energy devices, see 30 Mercer L. Rev. 547 (1979). For article surveying recent judicial developments in commercial law, see 31 Mercer L. Rev. 13 (1979). For article surveying developments in Georgia commercial law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 33 (1981). For article, “Contractual Limitations of Remedy and the Failure of Essential Purpose Doctrine,” see 26 Ga. St. B.J. 113 (1990). For article, “Products Liability Law in Georgia Including Recent Developments,” see 43 Mercer L. Rev. 27 (1991). For annual survey article on product liability, see 67 Mercer L. Rev. 177 (2015). For annual survey on product liability, see 69 Mercer L. Rev. 231 (2017). For article, “Do’s and Don’ts When Handling a Product Liability Matter in Georgia,” see 25 Ga. St. B.J. 17 (Aug. 2019). For annual survey on construction law, see 71 Mercer L. Rev. 57 (2019). For note, “Puppies, Puppies, Puppies: Why Georgia Should ‘Adopt’ a Progressive Puppy Lemon Law and Engage in MuchNeeded Statutory Reform,” see 55 Ga. L. Rev. 431 (2020).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION LEASES TORTS EXCLUSION OR WAIVER EVIDENTIARY ISSUES DAMAGES General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1910, § 4135 and former Code 1933, §§ 96-301 and 96-307

are included in the annotations for this Code section. Since this Code section does not expressly exclude manufacturers from its coverage, cases decided under former Code 1933, § 96-307 have been included

General Consideration (Cont’d) here. See Official Comment 2 to Uniform Commercial Code § 2-314. Purpose of former Code 1933, § 96307 to distribute losses. - Purpose of former Code 1933, § 96-307 was that enterprise which causes losses should lift them from the individual victims and distribute them widely among those who benefit from activities of the enterprise. Wood v. Hub Motor Co., 110 Ga. App. 101, 137 S.E.2d 674, 1964 Ga. App. LEXIS 557 (1964) (decided under former Code 1933, § 96-307). Implied warranty is raised by statute, while express warranty is by contract. Stewart v. Gainesville Glass Co., 131 Ga. App. 747, 206 S.E.2d 857, 1974 Ga. App. LEXIS 1542 (1974), aff’d, 233 Ga. 578, 212 S.E.2d 377, 1975 Ga. LEXIS 1377 (1975). Statutory implied warranty is an obligation that the law places upon a party as a result of some transaction entered into; it is not a contractual obligation. Wood v. Hub Motor Co., 110 Ga. App. 101, 137 S.E.2d 674, 1964 Ga. App. LEXIS 557 (1964) (decided under former Code 1933, § 96-307). Original packaging not relevant. Because granite blocks were movable at the time of identification of the contract, they were “goods” under O.C.G.A. § 11-2314, and an implied warranty of merchantability applied to their sale. Willis Mining, Inc. v. Noggle, 235 Ga. App. 747, 509 S.E.2d 731, 1998 Ga. App. LEXIS 1537 (1998). Under Georgia’s Uniform Commercial Code, O.C.G.A. § 11-2-314(1), a warranty that the goods shall be merchantable is implied in a contract for the goods’ sale if the seller is a merchant with respect to goods of that kind. That warranty protects consumers from defects or conditions existing at the time of sale. Paulk v. Thomasville Ford Lincoln Mercury, Inc., 317 Ga. App. 780, 732 S.E.2d 297, 2012 Ga. App. LEXIS 781 (2012), cert. denied, No. S13C0223, 2013 Ga. LEXIS 342 (Ga. Apr. 15, 2013). Warranties exist unless excepted. - Implied warranties exist unless expressly or from nature of transaction excepted.

Wilson v. Eargle, 98 Ga. App. 241, 105 S.E.2d 474, 1958 Ga. App. LEXIS 557 (1958) (decided under former Code 1933, § 96-301). If there is no express covenant of warranty, purchaser must exercise caution in detecting defects, but seller in all cases, unless expressed or from the nature of the transaction excepted, warrants it has title and right to sell, that article sold is merchantable and reasonably suited to use intended, and that seller knows of no latent defects undisclosed. Jones v. Knightstown Body Co., 52 Ga. App. 667, 184 S.E. 427, 1936 Ga. App. LEXIS 215 (1936); Wilkinson v. Rich’s, Inc., 77 Ga. App. 239, 48 S.E.2d 552, 1948 Ga. App. LEXIS 524 (1948) (decided under former Code 1933, § 96-301). Implied warranty remains effective for a reasonable time. Wood v. Hub Motor Co., 110 Ga. App. 101, 137 S.E.2d 674, 1964 Ga. App. LEXIS 557 (1964) (decided under former Code 1933, § 96307). Implied warranties warrant against defects or conditions existing at the time of sale, but do not provide a warranty of continuing serviceability. Jones v. Marcus, 217 Ga. App. 372, 457 S.E.2d 271, 1995 Ga. App. LEXIS 413 (1995). Implied warranties inapplicable to settlement agreements. - Seller sued a buyer who rejected the seller’s goods; the parties settled. As the parties’ agreement was a contract to settle litigation, with any sale of goods merely incidental, the implied warranties of merchantability and fitness, O.C.G.A. §§ 11-2-314 and 112-315, did not apply to their settlement agreement. Ole Mexican Foods, Inc. v. Hanson Staple Co., 285 Ga. 288, 676 S.E.2d 169, 2009 Ga. LEXIS 142 (2009). Evidence negated buyer’s claim that vehicle was unmerchantable at time of sale. - Summary judgment for the seller of a vehicle was proper in a case in which the buyer claimed breach of implied warranties under O.C.G.A. § 112-314; the buyer’s complaints were minor and did not render the vehicle unusable, and the vehicle had 57,000 miles on it when the buyer purchased it, and the fact that the buyer drove it 25,000 more miles before abandoning it at the seller’s lot negated the claim that the vehicle was

unmerchantable when purchased. Soto v. CarMax Auto Superstores, Inc., 271 Ga. App. 813, 611 S.E.2d 108, 2005 Ga. App. LEXIS 184 (2005). Parties may expressly broaden or narrow warranty. - Parties may expressly agree on provisions of contract and extent of warranty, which may be more limited or more extensive than implied warranty of law. Jones v. Knightstown Body Co., 52 Ga. App. 667, 184 S.E. 427, 1936 Ga. App. LEXIS 215 (1936) (decided under former Code 1933, § 96-301). Vendor may act in good faith in transaction, and yet violate O.C.G.A. § 11-2-314. A.D.L. Sales Co. v. Gailey, 48 Ga. App. 798, 173 S.E. 734, 1934 Ga. App. LEXIS 200 (1934) (decided under former Code 1910, § 4135). Patent, discoverable, or disclosed latent defects. - Implied warranty is a guaranty against loss only from latent defects. The law of implied warranty will not avail against patent defects, nor against latent defects which are either disclosed or are discoverable by exercise of caution on part of purchaser. Where property is brought under an implied warranty that it is reasonably suited to the use intended, an acceptance by the purchaser waives all defects discovered by the purchaser, or which by exercise of ordinary care and prudence, the purchaser might have discovered before delivery. Jones v. Knightstown Body Co., 52 Ga. App. 667, 184 S.E. 427, 1936 Ga. App. LEXIS 215 (1936); Wilkinson v. Rich’s, Inc., 77 Ga. App. 239, 48 S.E.2d 552, 1948 Ga. App. LEXIS 524 (1948); Smith v. Northeast Ga. Fair Ass’n, 85 Ga. App. 32, 67 S.E.2d 836, 1951 Ga. App. LEXIS 994 (1951); Moore v. Berry, 217 Ga. App. 697, 458 S.E.2d 879, 1995 Ga. App. LEXIS 573 (1995) (decided under former Code 1933, § 96-301); . Implied warranty of fitness of thing sold for ordinary use, does not embrace defects discoverable by ordinary prudence and care. Smith v. Northeast Ga. Fair Ass’n, 85 Ga. App. 32, 67 S.E.2d 836, 1951 Ga. App. LEXIS 994 (1951) (decided under former Code 1933, § 96-301). In an action by a customer against a drugstore for burns suffered when bleach spilled from a bottle as the customer removed it from a shelf, the customer’s

claim was not defeated by failure to exercise care for the customer’s own safety since the bleach was located at a height above the customer’s eye level and there was no patent or obvious defect; reversing A.B.C. Drug Co. v. Monroe, 214 Ga. App. 136, 447 S.E.2d 315 (1994). Keaton v. A.B.C. Drug Co., 266 Ga. 385, 467 S.E.2d 558, 1996 Ga. LEXIS 111 (1996). Defects not ascertainable by examination of property. - The law imposes upon vendee the duty of exercising caution in detecting defects, and hence it is a well-established rule that where defect is patent, or could have been ascertained by exercise of diligence, there can be no recovery upon ground of an implied warranty and in all such cases the doctrine of caveat emptor applies; but in cases of latent defects, the existence of which cannot be ascertained by an examination of the property, the law protects a purchaser by imposing upon vendor an implied warranty, whenever the defect is of such a nature as to render article sold unsuited to use intended, and in cases of latent defects, therefore, the doctrine of caveat venditor applies. Williams v. Ballenger, 87 Ga. App. 255, 73 S.E.2d 509, 1952 Ga. App. LEXIS 663 (1952) (decided under former Code 1933, § 96-301). While the seller’s argument that no warranty existed because the buyer inspected the blocks the buyer was buying and used own judgment in selecting purchases was relevant to an implied warranty of fitness for a particular purpose, it was not applicable to the warranty of merchantability at issue. Since the implied warranty of merchantability was not clearly disclaimed, it applied to this sale of goods absent one of the exceptions enumerated in O.C.G.A. § 11-2-316(3). Willis Mining, Inc. v. Noggle, 235 Ga. App. 747, 509 S.E.2d 731, 1998 Ga. App. LEXIS 1537 (1998). Sale of common article. - In sale of common article there is always an implied warranty that it is made of good material and reasonably fit to be employed in use for which it is designed by maker. Jones v. Knightstown Body Co., 52 Ga. App. 667, 184 S.E. 427, 1936 Ga. App. LEXIS 215 (1936) (decided under former Code 1933, § 96-301). Defective container or packaging. - In an action by a customer against a

General Consideration (Cont’d) drugstore for burns suffered when bleach spilled from a bottle as she removed it from a shelf, the jury was authorized to find a breach of implied warranty because, as a merchant of bleach, the store was required to adequately contain and package the bleach that it sold and bleach which spills from a loose cap is not adequately contained or packaged; reversing A.B.C. Drug Co. v. Monroe, 214 Ga. App. 136, 447 S.E.2d 315 (1994). Keaton v. A.B.C. Drug Co., 266 Ga. 385, 467 S.E.2d 558, 1996 Ga. LEXIS 111 (1996). Adaption of machine to uses for which it is made is always warranted. A.D.L. Sales Co. v. Gailey, 48 Ga. App. 798, 173 S.E. 734, 1934 Ga. App. LEXIS 200 (1934) (decided under former Code 1910, § 4135(2)). When the article even though used or second-hand is sold by one who “is a merchant with respect to goods of that kind,” an implied warranty of merchantability attaches to the sale under O.C.G.A. § 11-2-314 unless excluded or modified by O.C.G.A. § 11-2-316. Georgia Timberlands, Inc. v. Southern Airways Co., 125 Ga. App. 404, 188 S.E.2d 108, 1972 Ga. App. LEXIS 1351 (1972). Original packaging not relevant. Implied warranty of merchantability does not base distinctions upon whether or not goods are sold in original packages. Pierce v. Liberty Furn. Co., 141 Ga. App. 175, 233 S.E.2d 33, 1977 Ga. App. LEXIS 1820 (1977). Instruction manual accompanying product. - Under warranty provisions of Uniform Commercial Code, where a product is sold which is to be installed by the consumer, written instructions that accompany it create an implied warranty that it will be fit for ordinary purpose for which it is used and will be safely operable when installed in accordance with such directions. Reddick v. White Consol. Indus., Inc., 295 F. Supp. 243, 1968 U.S. Dist. LEXIS 9703 (S.D. Ga. 1968). When contract originates in selfservice store. - Where defendant selfservice store offered soft drinks for sale by placing them on its shelf, contract for sale of goods came into being when plaintiff

accepted offer by taking physical possession thereof with intent to pay for them; and from that moment forward implied warranties of O.C.G.A. § 11-2-314 were applicable. Fender v. Colonial Stores, Inc., 138 Ga. App. 31, 225 S.E.2d 691, 1976 Ga. App. LEXIS 2044 (1976). Blood furnished by hospital in course of treatment is not a sales transaction covered by implied warranty under O.C.G.A. § 11-2-314. Lovett v. Emory Univ., Inc., 116 Ga. App. 277, 156 S.E.2d 923, 1967 Ga. App. LEXIS 777 (1967). Medical center’s furnishing of facility for use in connection with surgery to install a plate device to stabilize plaintiff’s spine was a transaction involving “services and labor with an incidental furnishing of equipment and materials” and, as such, the Uniform Commercial Code had no application. McCombs v. Southern Regional Medical Ctr., Inc., 233 Ga. App. 676, 504 S.E.2d 747, 1998 Ga. App. LEXIS 1026 (1998), cert. denied, No. S98C1782, 1998 Ga. LEXIS 1172 (Ga. Nov. 20, 1998). Distributor of anti-psychotic drug. - The distributor of an anti-psychotic drug could not be held liable for the suicide of a patient based on warranty claims because it neither manufactured nor prescribed the drug. Presto v. Sandoz Pharmaceuticals Corp., 226 Ga. App. 547, 487 S.E.2d 70, 1997 Ga. App. LEXIS 639 (1997). Pharmaceutical products. - Patient who died after taking medicine which a pharmaceutical manufacturer gave to the doctor and which the doctor gave to the patient was not entitled to an extension of any implied warranty existing between the manufacturer and the doctor, and the appellate court upheld the trial court’s judgment dismissing claims the patient’s spouse filed against the manufacturer, alleging breach of express and implied warranties, but reversed the trial court’s judgment dismissing the husband’s claims against the manufacturer alleging strict liability and negligent failure to warn. Bryant v. Hoffmann-La Roche, Inc., 262 Ga. App. 401, 585 S.E.2d 723, 2003 Ga. App. LEXIS 945 (2003), cert. denied, No. S03C1724, 2003 Ga. LEXIS 1044 (Ga. Nov. 17, 2003). Federal law on medical devices preempted implied warranty. - Medical Device Amendments, 21 U.S.C. § 360k,

preempted state law claims in a products liability case alleging an implied warranty of merchantability under O.C.G.A. § 11-2314 with respect to a Precision Spinal Cord Stimulator medical device. Horn v. Boston Sci. Neuromodulation Corp., No. CV409-074, 2011 U.S. Dist. LEXIS 102164 (S.D. Ga. Aug. 26, 2011). “Learned intermediary” doctrine. - The manufacturer of an anti-psychotic drug could not be held liable for the suicide of a patient under any warranty claim because of the “learned intermediary” doctrine, absent some showing that the product itself was defective. Presto v. Sandoz Pharmaceuticals Corp., 226 Ga. App. 547, 487 S.E.2d 70, 1997 Ga. App. LEXIS 639 (1997). Plaintiff’s breach of warranty claims against a drug manufacturer, to the extent the claims were based upon failure to provide accurate or sufficient information regarding the use of the drug to the decedent, were barred by the learned intermediary doctrine but the claims were not barred to the extent the claims were based upon failure to provide accurate or sufficient information regarding the use of the drug to others. Lee v. Mylan Inc., 806 F. Supp. 2d 1320, 2011 U.S. Dist. LEXIS 41169 (M.D. Ga. 2011). Handgun used to accidentally kill another. - Handgun with cocked hammer which was discovered by three-yearold, who pulled the trigger and thereby killed another child, could not be considered “not merchantable and not reasonably suited to the use intended” since the gun performed exactly as intended - when the hammer was cocked and the trigger was pulled, it fired. Rhodes v. R.G. Indus., Inc., 173 Ga. App. 51, 325 S.E.2d 465, 1984 Ga. App. LEXIS 2724 (1984). Skylights. - Where a subcontractor’s initial proposal and the general contractor’s purchase order referencing the “plans and specs” required that skylights be water-tight or leak free, but the skylights were not leak free, the goods were not merchantable. American Aluminum Prods. Co. v. Binswanger Glass Co., 194 Ga. App. 703, 391 S.E.2d 688, 1990 Ga. App. LEXIS 307 (1990). A contract for rebuilding an engine was not a sale by a merchant so as to

invoke the warranty of O.C.G.A. § 11-2314. American Whse. & Moving Serv. of Atlanta, Inc. v. Floyd’s Diesel Serv., Inc., 164 Ga. App. 106, 296 S.E.2d 64, 1982 Ga. App. LEXIS 2721 (1982). Breach and consequent damages complete a cause of action on an implied warranty. Wood v. Hub Motor Co., 110 Ga. App. 101, 137 S.E.2d 674, 1964 Ga. App. LEXIS 557 (1964) (decided under former Code 1933, § 96-307). Negligence is not an element of breach of warranty. - If goods do not conform to warranty, warrantor’s utmost care will not relieve warrantor of liability. Wood v. Hub Motor Co., 110 Ga. App. 101, 137 S.E.2d 674, 1964 Ga. App. LEXIS 557 (1964) (decided under former Code 1933, § 96-307). Strict liability of manufacturer distinguished. - Establishment of the implied warranty of merchantability as applied to a seller under O.C.G.A. § 11-2314 is not the same as the strict liability imposed on a manufacturer under O.C.G.A. § 51-1-11. Buford v. Toys R’ Us, Inc., 217 Ga. App. 565, 458 S.E.2d 373, 1995 Ga. App. LEXIS 517 (1995), cert. denied, No. S95C1555, 1995 Ga. LEXIS 1039 (Ga. Sept. 25, 1995), overruled in part, Wal-Mart Stores, Inc. v. Wheeler, 262 Ga. App. 607, 586 S.E.2d 83, 2003 Ga. App. LEXIS 930 (2003). Essential elements not proved. - Proof that the car was defective when sold was an essential element of the buyer’s claim, which the buyer did not satisfy; the evidence showed that the buyer drove the used car approximately 26,000 miles before the cooling system began to malfunction. Dildine v. Town & Country Truck Sales, Inc., 259 Ga. App. 732, 577 S.E.2d 882, 2003 Ga. App. LEXIS 254 (2003). To recover in Georgia under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., a plaintiff must show that a defendant breached the implied warranty of merchantability arising under Georgia law, and summary judgment for a car seller in a case alleging breach of implied warranties under 15 U.S.C. § 2301 et seq., and O.C.G.A. § 11-2-314(1) was correct because the buyers failed to show that the car was defective when sold; numerous repairs to the car during the first year

General Consideration (Cont’d) of ownership were mostly for different items each time, and all of the needed repairs were made. Crowe v. CarMax Auto Superstores, Inc., 272 Ga. App. 249, 612 S.E.2d 90, 2005 Ga. App. LEXIS 273 (2005). Trial court did not err in granting a seller’s motion for summary judgment in a customer’s action seeking to recover damages for injuries the customer sustained when the customer was burned from a ceramic, scented-oil burner and alleging, among other things, that the seller breached an implied warranty of merchantability because the trial court’s conclusion that the ceramic burner was not defective for the burner’s ordinary purpose at the time of sale was supported by the evidence of record; the customer presented no evidence that some defect existed in the item such that it was inappropriate to use for the item’s ordinary purpose as a ceramic oil burner other than the mere existence of the customer’s injury, and the sellers’ owners and employees deposed that the item and others like it were marketed by the manufacturer as oil burners and were displayed as such at various trade shows the seller’s personnel attended. Rivers v. H. S. Beauty Queen, Inc., 306 Ga. App. 866, 703 S.E.2d 416, 2010 Ga. App. LEXIS 1079 (2010). Leases Section applicable to sales and not leases. - It would appear from a literal reading of O.C.G.A. § 11-2-314 that it was intended to apply only to “sales” and not leases. Redfern Meats, Inc. v. Hertz Corp., 134 Ga. App. 381, 215 S.E.2d 10, 1975 Ga. App. LEXIS 2021 (1975). Commercial chattel leases. - Provisions of O.C.G.A. § 11-2-314 are not applicable to all commercial chattel leases. Redfern Meats, Inc. v. Hertz Corp., 134 Ga. App. 381, 215 S.E.2d 10, 1975 Ga. App. LEXIS 2021 (1975). Warranty provisions of Uniform Commercial Code are applicable to those chattel leases where transaction in question is analogous to a sale. Redfern Meats, Inc. v. Hertz Corp., 134 Ga. App. 381, 215 S.E.2d 10, 1975 Ga. App. LEXIS 2021 (1975). Irrevocable agreement to transfer ownership in future. - Where owner

had contracted irrevocably to transfer ownership to another at some time in the future, the transaction was analogous to a sale even though in the form of a lease and even though the owner retained title, the implied warranties of O.C.G.A. § 11-2314 applied. Redfern Meats, Inc. v. Hertz Corp., 134 Ga. App. 381, 215 S.E.2d 10, 1975 Ga. App. LEXIS 2021 (1975). Four-year lease of vehicle. - Where a lessee leased a vehicle for four years, title remained with the assignee, and the lessee was required to surrender the car at the expiration of the lease term, there being no option to purchase it, neither the implied warranty provisions nor the exclusion rules therefor of the Uniform Commercial Code applied to the lease agreement. Mark Singleton Buick, Inc. v. Taylor, 194 Ga. App. 630, 391 S.E.2d 435, 1990 Ga. App. LEXIS 288 (1990). Torts Wrongful death action. - No wrongful death action arises from any breach of warranties absent negligence or criminal conduct. Miles v. Bell Helicopter Co., 385 F. Supp. 1029, 1974 U.S. Dist. LEXIS 11567 (N.D. Ga. 1974), overruled in part as stated in Motisola Malikha Abdallah v. Coca-Cola Co., No. 1:98-CV-3679-RWS, 2000 U.S. Dist. LEXIS 21025 (N.D. Ga. Jan. 25, 2000). A wrongful death action may not be predicated on a breach of warranty arising from the sale of goods, except specified articles intended for human consumption or use. Ryals v. Billy Poppell, Inc., 192 Ga. App. 787, 386 S.E.2d 513, 1989 Ga. App. LEXIS 1195 (1989). Retailer’s liability parallels that of manufacturer under O.C.G.A. § 51-111. - O.C.G.A. § 11-2-314 establishes a concept for retailers similar to that employed in O.C.G.A. § 51-1-11, by which manufacturers may be held strictly liable for defective products. Pierce v. Liberty Furn. Co., 141 Ga. App. 175, 233 S.E.2d 33, 1977 Ga. App. LEXIS 1820 (1977). O.C.G.A. § 11-2-314, defining implied warranty of merchantability, is involved under O.C.G.A. § 51-1-11, which relate to actions for product liability. Parzini v. Center Chem. Co., 134 Ga. App. 414, 214 S.E.2d 700, 1975 Ga. App. LEXIS 2026,

rev’d, 234 Ga. 868, 218 S.E.2d 580, 1975 Ga. LEXIS 1309 (1975). Dealer not liable for manufacturer’s warranty. - Defendant used-car dealer could not be held liable under a complaint alleging that plaintiffs’ decedent was killed while driving a used car purchased from defendant which was defective when manufactured and that the car was covered by an express warranty of merchantability, issued by defendant at the time of purchase, where the vehicle in question was not manufactured by defendant. Ryals v. Billy Poppell, Inc., 192 Ga. App. 787, 386 S.E.2d 513, 1989 Ga. App. LEXIS 1195 (1989). Liability for food served. - Trial court erred by granting summary judgment to a restaurant on a customer’s claim that the restaurant served the customer a hamburger that breached the implied warranties of merchantability and fitness for purpose when the hamburger contained a bit of bone that broke the customer’s tooth when the customer bit into the hamburger. Because this material question had to be decided by a jury, the trial court erred in its grant of summary judgment to the restaurant. Mitchell v. BBB Servs. Co., 261 Ga. App. 240, 582 S.E.2d 470, 2003 Ga. App. LEXIS 532 (2003), cert. denied, No. S03C1342, 2003 Ga. LEXIS 815 (Ga. Sept. 22, 2003). Existence of defect. - In an action in which an insurance company filed suit against a company in a subrogation action to recover money paid by the insurance company to a restaurant in Norcross, Georgia, after a fire destroyed the restaurant, the company’s motion for summary judgment was granted on the breach of implied warranty claim; the insurance company proffered no evidence in the record from which a jury could conclude that the defect existed when the power supply left the manufacturing facility or even after it was re-manufactured. Colony Ins. Co. v. Coca-Cola Co., 239 F.R.D. 666, 2007 U.S. Dist. LEXIS 5113 (N.D. Ga. 2007). Exclusion or Waiver Waiver must be clear and certain. - Contract intended to waive implied warranties written into the sale by law should be clear and certain on that point. Wilson

v. Eargle, 98 Ga. App. 241, 105 S.E.2d 474, 1958 Ga. App. LEXIS 557 (1958) (decided under former Code 1933, § 96-301). Inconspicuous disclaimer in installment contract could not constitute exclusion of implied warranty of seller that mobile home was fit for ordinary purposes. BCS Fin. Corp. v. Sorbo, 213 Ga. App. 259, 444 S.E.2d 85, 1994 Ga. App. LEXIS 532 (1994), cert. denied, No. S94C1356, 1994 Ga. LEXIS 928 (Ga. Sept. 8, 1994). Because the language “THERE ARE NO . . . IMPLIED WARRANTIES WITH RESPECT TO MERCHANTABILITY . . . CONCERNING THE VEHICLE, PARTS, OR ACCESSORIES DESCRIBED HEREIN,” appeared in bold type and all capital letters in the sales contract, the implied warranty of merchantability was excluded. Gill v. Bluebird Wanderlodge & Holland Motor Homes, No. 5:02-CV-328-2, 2004 U.S. Dist. LEXIS 27436 (M.D. Ga. Feb. 4, 2004), rev’d, 147 Fed. Appx. 807, 2005 U.S. App. LEXIS 11626 (11th Cir. 2005). Failure to exclude warranty. - Failure to limit warranty made or to exclude any implied warranties may give rise to liability under either O.C.G.A. §§ 11-2313 or 11-2-314. Jones v. Cranman’s Sporting Goods, 142 Ga. App. 838, 237 S.E.2d 402, 1977 Ga. App. LEXIS 1395 (1977). Vendee’s inspection of property. - A vendee of personal property, by making a personal examination and inspection of same before purchase, with view of vendee determining quality and condition of the property, does not thereby waive an implied warranty by vendor that article sold is merchantable, and reasonably suited to use intended; and vendee can maintain a suit for such breach of warranty growing out of a latent defect which could not, in the exercise of due caution, have been detected; this is true notwithstanding the vendor was ignorant of the existence of such defect. Williams v. Ballenger, 87 Ga. App. 255, 73 S.E.2d 509, 1952 Ga. App. LEXIS 663 (1952) (decided under former Code 1933, § 96-301). Purchaser’s acceptance of property bought with full knowledge of its defective condition constitutes a waiver of implied warranty that property is in mer-

Exclusion of Waiver (Cont’d) chantable condition and suited for purpose intended. Smith v. Northeast Ga. Fair Ass’n, 85 Ga. App. 32, 67 S.E.2d 836, 1951 Ga. App. LEXIS 994 (1951) (decided under former Code 1933, § 96-301). Acceptance of used goods in exchange for reduced price. - Acceptance of used equipment in exchange for reduced purchase price does not cause corresponding waiver of implied warranty of fitness for ordinary purposes for which such goods are intended. Solomon Refrigeration, Inc. v. Osburn, 148 Ga. App. 772, 252 S.E.2d 686, 1979 Ga. App. LEXIS 1653 (1979). Warranty limiting liability to repair or replacement of defective goods. - Seller was not liable for consequential damages resulting from alleged breach of warranty arising from defects in its goods where seller’s written warranty specifically limited any liability to repairing or replacing any defective goods and where buyer had notice of the existence of the written warranty but never requested or saw a copy of the written warranty. ALarms, Inc. v. Alarms Device Mfg. Co., 165 Ga. App. 382, 300 S.E.2d 311, 1983 Ga. App. LEXIS 1879 (1983). Automobile invoice containing language, “I accept the above-described car in its present condition . . .” indicated that the car was sold “as is” and operated to exclude any implied warranties; trial court, therefore, erred in not granting partial summary judgment to seller in regard to the claim for breach of implied warranties. Joseph Charles Parrish, Inc. v. Hill, 173 Ga. App. 97, 325 S.E.2d 595, 1984 Ga. App. LEXIS 2736 (1984). Implied warranty not excluded. - Paragraph written in same size and color type as all other paragraphs on back of form fails completely to comply with O.C.G.A. § 11-2-316 for excluding the warranties implied by law in O.C.G.A. § 11-2-314. Chrysler Corp. v. Wilson Plumbing Co., 132 Ga. App. 435, 208 S.E.2d 321, 1974 Ga. App. LEXIS 1717 (1974). Evidentiary Issues Merchantability may concern whether product is dangerous for ordinary use. - Under merchantability

such questions may be considered as whether drain solvent consisting of 95 percent to 99 ½ percent pure sulphuric acid is unmerchantable and dangerous because it is too potent for ordinary use. Parzini v. Center Chem. Co., 134 Ga. App. 414, 214 S.E.2d 700, 1975 Ga. App. LEXIS 2026, rev’d, 234 Ga. 868, 218 S.E.2d 580, 1975 Ga. LEXIS 1309 (1975). Guarantor of debtor may not raise defense of breach of warranty. - Whether or not warranty provisions of Uniform Commercial Code apply to lease of machinery, defense of breach of warranty cannot be raised by guarantor of debtor. Hurst v. Stith Equip. Co., 133 Ga. App. 374, 210 S.E.2d 851, 1974 Ga. App. LEXIS 1076 (1974). Negating causal connection between breach and damages. - Defendant may demonstrate in defense that product was in fact merchantable and fit for purpose intended, or that if there was a deficiency in such regard there was no causal connection between breach and damages sued for, or that some other factor was the sole proximate cause of damage. Firestone Tire & Rubber Co. v. Jackson Transp. Co., 126 Ga. App. 471, 191 S.E.2d 110, 1972 Ga. App. LEXIS 1185 (1972). Mere fact of tire blowout does not demonstrate manufacturer’s negligence, nor tend to establish that tire was defective. Firestone Tire & Rubber Co. v. Jackson Transp. Co., 126 Ga. App. 471, 191 S.E.2d 110, 1972 Ga. App. LEXIS 1185 (1972). Evidence of defect at time of sale. - Where there was a factual question as to whether a defect existed in a re-treaded tire at the time of sale, summary judgment was correctly denied. Jones v. Marcus, 217 Ga. App. 372, 457 S.E.2d 271, 1995 Ga. App. LEXIS 413 (1995). Because the product defect must exist at the time of sale or lease for an action under warranty to be valid, plaintiff could not recover for breach of the implied warranty of merchantability since plaintiff failed to show that defendant manufacturer was responsible for the truck’s brake failure. Jenkins v. GMC, 240 Ga. App. 636, 524 S.E.2d 324, 1999 Ga. App. LEXIS 1432 (1999).

Trial court erred in granting a manufacturer’s summary judgment motion on a buyer’s breach of the implied warranty of merchantability claim on a ground not raised in the motion because the manufacturer argued in its motion that the buyer failed to show that the vehicle was defective at the time it was purchased; at the hearing, the manufacturer claimed that the buyer’s expert did not establish that the vehicle was unmerchantable under Georgia law. Knight v. Am. Suzuki Motor Corp., 272 Ga. App. 319, 612 S.E.2d 546, 2005 Ga. App. LEXIS 278 (2005). Evidence insufficient to show vehicle not merchantable. - Because there was no evidence that a vehicle’s driveability or usefulness was ever affected by alleged defects, and the purchaser did not allege that the vehicle was ever rendered inoperable or that its capacity to operate as a means of transportation was ever disabled by alleged defects, there was no basis for a decision that the vehicle was not merchantable as guaranteed by the implied warranty pursuant to O.C.G.A. § 11-2-314. Hines v. MercedesBenz USA, LLC, 358 F. Supp. 2d 1222, 2005 U.S. Dist. LEXIS 3083 (N.D. Ga. 2005). Defective product. - Affidavit of plaintiff’s expert stating that a product was defective and unsuitable for its intended purpose did not suggest the alleged defect was patent so as to justify a grant of summary judgment on the issue of an implied warranty. Moore v. Berry, 217 Ga. App. 697, 458 S.E.2d 879, 1995 Ga. App. LEXIS 573 (1995). Evidence from a veterinarian and farm manager raised an issue of fact regarding whether plaintiff’s feed was fit for its intended purpose. Dixon Dairy Farms, Inc. v. Conagra Feed Co., 239 Ga. App. 233, 519 S.E.2d 729, 1999 Ga. App. LEXIS 892 (1999). Seller of an all-terrain vehicle was entitled to summary judgment on breach of warranty claims because plaintiffs did not present evidence that the vehicle was unfit or unsafe for only one rider and there was no evidence that the seller knew that plaintiffs intended to operate the vehicle with a passenger. Battersby v. Boyer, 241 Ga. App. 115, 526 S.E.2d 159, 1999 Ga. App. LEXIS 1571 (1999).

In a consumer’s suit against a car dealer for breach of an implied warranty, under 15 U.S.C. § 2310(d)(1) of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., regarding the sale of a used car which the dealer’s salesman falsely represented had not been in a wreck, it was not error for the trial court to grant a directed verdict to the dealer because the consumer did not show the vehicle was not merchantable, under O.C.G.A. § 11-2-314(1). Mitchell v. Backus Cadillac-Pontiac, Inc., 274 Ga. App. 330, 618 S.E.2d 87, 2005 Ga. App. LEXIS 758 (2005), cert. denied, No. S05C1878, 2005 Ga. LEXIS 784 (Ga. Nov. 7, 2005). Defendant’s compliance with plaintiff’s specifications did not eliminate the defendant’s duty to supply merchantable pallets; as there were genuine issues of material fact regarding plaintiff’s claim for breach of the implied warranty of merchantability, summary judgment was inappropriate. Plaintiff’s expert testimony indicated that many pallet manufacturers were aware of mold issues caused by surface moisture on green heat-treated wood and, as a result, were drying pallets used for export, however, neither the pallet manufacturing standards nor the heattreatment standards required any specific moisture content; this conflicting evidence raised a question of fact as to whether pallets with high moisture content were defective and unfit for shipping products overseas. Kraft Reinsurance Ir., Ltd. v. Pallets Acquisitions, LLC, 845 F. Supp. 2d 1342, 2011 U.S. Dist. LEXIS 131308 (N.D. Ga. 2011). Sale of horse. - No breach of implied warranty could be shown after undisputed evidence demonstrated that the sellers’ representation at the time of sale that a horse would be a good show horse was true. Sheffield v. Darby, 244 Ga. App. 437, 535 S.E.2d 776, 2000 Ga. App. LEXIS 754 (2000). Privity Law as to liability under a warranty requires privity. Stewart v. Gainesville Glass Co., 131 Ga. App. 747, 206 S.E.2d 857, 1974 Ga. App. LEXIS 1542 (1974), aff’d, 233 Ga. 578, 212 S.E.2d

Privity (Cont’d) 377, 1975 Ga. LEXIS 1377 (1975). Plaintiff must be purchaser. - For plaintiff to maintain action against manufacturer based on implied warranties, plaintiff must be purchaser either directly from manufacturer or from some other person such as a wholesaler or retailer. Whitaker v. Harvell-Kilgore Corp., 418 F.2d 1010, 1969 U.S. App. LEXIS 9840 (5th Cir. 1969); Lamb v. Georgia-Pacific Corp., 194 Ga. App. 848, 392 S.E.2d 307, 1990 Ga. App. LEXIS 346 (1990); Cobb County Sch. Dist. v. MAT Factory, Inc., 215 Ga. App. 697, 452 S.E.2d 140, 1994 Ga. App. LEXIS 1339 (1994). Implied warranty that goods are merchantable clearly arises out of contract of sale of goods, so it can only run to buyer who is in privity of contract with seller. Chaffin v. Atlanta Coca-Cola Bottling Co., 127 Ga. App. 619, 194 S.E.2d 513, 1972 Ga. App. LEXIS 977 (1972). Under Uniform Commercial Code, no implied warranty runs from manufacturer to one not purchasing directly from it. Lashley v. Ford Motor Co., 359 F. Supp. 363, 1972 U.S. Dist. LEXIS 12178 (M.D. Ga. 1972), aff’d, 480 F.2d 158, 1973 U.S. App. LEXIS 9695 (5th Cir. 1973). Although a warranty of merchantability was implied in any sale of goods under O.C.G.A. § 11-2-314, the warranty only ran to a buyer in privity of contract with the seller and did not pass to a second or subsequent purchaser; thus, the buyers who were not placed on the title and title transferees had no cause of action against the seller under O.C.G.A. § 11-2-106(1) for breach of implied warranties because of their lack of privity as original purchasers. Gill v. Blue Bird Body Co., 147 Fed. Appx. 807, 2005 U.S. App. LEXIS 11626 (11th Cir. 2005). Legal transaction conducted in name of corporate entity. - Motor home seller’s renewed motion for judgment as a matter of law was denied because the buyers presented sufficient evidence to support jury verdict in their favor as to state law breach of implied warranty claim; the buyers presented evidence showing that they were the real buyers of the motor home even though the legal

transaction was done in the name of a corporate entity; thus, the seller could not challenge the buyers’ standing to assert breach of warranty claims because it assured the buyers that they were covered under the motor home’s warranty and that the warranty was being honored. Gill v. Bluebird Body Co., No. 5:02-CV-328, 2005 U.S. Dist. LEXIS 4611 (M.D. Ga. Jan. 21, 2005). In a products liability diversity action brought on the theory of breach of implied warranty of merchantability, Georgia procedural law, which looked to the lex loci delicti, controlled the claim. Since the injury took place in Georgia, Georgia substantive law, which required privity, was applied. The plaintiff, who was an employee of the purchaser of the product, failed to satisfy this privity requirement. Morgan v. Mar-Bel, Inc., 614 F. Supp. 438, 1985 U.S. Dist. LEXIS 17395 (N.D. Ga. 1985). Lack of privity between manufacturer and ultimate consumer. - Ordinarily under O.C.G.A. § 11-2-314 there is no implied warranty existing between a manufacturer and an ultimate consumer due to the fact that no privity of contract exists between the two. Chrysler Corp. v. Wilson Plumbing Co., 132 Ga. App. 435, 208 S.E.2d 321, 1974 Ga. App. LEXIS 1717 (1974). Purchaser did not have a claim for breach of implied warranty against the manufacturers of component parts of the purchaser’s recreational vehicle because there was no privity between the manufacturers and the purchaser. Monticello v. Winnebago Indus., 369 F. Supp. 2d 1350, 2005 U.S. Dist. LEXIS 7261 (N.D. Ga. 2005). Privity between manufacturer and ultimate consumer. - Because the plaintiff established privity with respect to an express warranty claim against a drug manufacturer based upon affirmations of fact or promises to the decedent, the plaintiff also could bring claims for the implied warranties of merchantability and fitness for a particular purpose. Lee v. Mylan Inc., 806 F. Supp. 2d 1320, 2011 U.S. Dist. LEXIS 41169 (M.D. Ga. 2011). Warranty issued through dealer as part of sale. - Although in Georgia privity is required in order to impose liability under the theory of express or implied warranty, where an automobile manufacturer, through its authorized

dealer issues to a purchaser of one of its automobiles from such dealer, admittedly as a part of the sale, a warranty by the manufacturer running to the purchaser, privity exists and O.C.G.A. § 11-2-314 becomes operative. Jones v. Cranman’s Sporting Goods, 142 Ga. App. 838, 237 S.E.2d 402, 1977 Ga. App. LEXIS 1395 (1977); Chrysler Corp. v. Wilson Plumbing Co., 132 Ga. App. 435, 208 S.E.2d 321, 1974 Ga. App. LEXIS 1717 (1974). Ordinarily, there is no implied warranty existing between manufacturer and purchaser of automobile when there is no privity between the two, yet where an automobile manufacturer, through its authorized dealer, issues to a purchaser a warranty by the manufacturer to said purchaser, the implied warranty statute becomes operative. Ford Motor Co. v. Lee, 137 Ga. App. 486, 224 S.E.2d 168, 1976 Ga. App. LEXIS 2502, aff’d in part and rev’d in part, 237 Ga. 554, 229 S.E.2d 379, 1976 Ga. LEXIS 1303 (1976). Dealer’s warranty not binding on manufacturer. - Absent a showing of a de facto principal/agent relationship between an automobile manufacturer and its authorized dealer, a warranty made by the dealer for repair work done on a used vehicle would not extend any responsibility to the manufacturer. Lauria v. Ford Motor Co., 169 Ga. App. 203, 312 S.E.2d 190, 1983 Ga. App. LEXIS 3026 (1983). No privity meant no duty to warn. - Claim, based on warranty law, that a hospital had a duty to warn regarding the effects of discontinuing prescription drug use was meritless since the hospital nei-

ther manufactured nor prescribed the drug. Presto v. Charter Peachford Behavioral Health Sys., 229 Ga. App. 576, 494 S.E.2d 377, 1997 Ga. App. LEXIS 1468 (1997), cert. denied, No. S98C0559, 1998 Ga. LEXIS 390 (Ga. Mar. 6, 1998). Damages Loss of expected profits. - Where there is evidence of defect in goods which renders them unfit for ordinary purposes for which such goods are used, vendor may be held liable under O.C.G.A. § 11-2314. However, loss of expected profits cannot be recovered except where evidence of such loss can be shown with reasonable certainty. Farmers Mut. Exch. of Baxley, Inc. v. Dixon, 146 Ga. App. 663, 247 S.E.2d 124, 1978 Ga. App. LEXIS 2498 (1978). Emotional distress. - Summary judgment, pursuant to O.C.G.A. § 9-1156(c), to a restaurant was properly granted by a trial court in an action by a restaurant patron, alleging emotional distress when the patron discovered two blood spots on the french fry container, fearing that the patron would contract HIV or hepatitis, because the patron failed to provide evidence of more than the patron’s “fear” of exposure to the diseases; accordingly, the patron’s claims for negligence, negligence per se, and breach of the implied warranty of merchantability, under O.C.G.A. § 51-1-23 and O.C.G.A. § 11-2-314, failed due to the patron’s failure to meet the damages requirement. Wilson v. J & L Melton, Inc., 270 Ga. App. 1, 606 S.E.2d 47, 2004 Ga. App. LEXIS 1331 (2004).

RESEARCH REFERENCES Am. Jur. 2d. 15A Am. Jur. 2d, Commercial Code, § 14. 63 Am. Jur. 2d, Products Liability, § 705 et seq. 67A Am. Jur. 2d, Sales, §§ 747-760. Am. Jur. Pleading and Practice Forms. 6 Am. Jur. Pleading and Practice Forms, Commercial Code, §§ 2:234, 2:260. 20A Am. Jur. Pleading and Practice Forms, Products Liability, § 57.

Am. Jur. Proof of Facts. Implied Warranty of Merchantability, 26 POF2d 1. C.J.S. 77A C.J.S., Sales, § 254 et seq. U.L.A. Uniform Commercial Code (U.L.A.) § 2314. ALR. Liability of Online Marketplace Operator for Defective Product, 60 A.L.R. 7th 3.

Liability of seller of article not inherently dangerous for personal injuries to the buyer, due to the defective or dangerous condition of the article, 13 A.L.R. 1176; 74 A.L.R. 343; 168 A.L.R. 1054. Warranties and conditions upon sale of seeds, nursery stock, etc., 16 A.L.R. 859; 32 A.L.R. 1241; 62 A.L.R. 451; 117 A.L.R. 470; 168 A.L.R. 581. Right of dealer against his vendor in case of breach of warranty as to article purchased for resale and resold, 22 A.L.R. 133; 64 A.L.R. 883. Implied warranty upon retail sale of garment for personal wear, 27 A.L.R. 1507. Loss of profits as elements of damages for fraud of seller, as to quality of goods purchased for resale, 28 A.L.R. 354. Seller’s duty to ascertain at his peril that articles of food conform to food regulations, 28 A.L.R. 1385. Express or implied warranty on sale for accommodation of buyer, 32 A.L.R. 1150; 59 A.L.R. 1541. Express or implied warranty of quality, condition, or fitness of automobile or truck sold by retail dealer, 34 A.L.R. 535; 43 A.L.R. 648. Warranty or condition as to kind or quality implied by sale under trade term which by use has become generic, 35 A.L.R. 249. Express or implied warranty of quality, condition, or fitness of automobile or truck sold by retail dealer, 43 A.L.R. 648. Implied warranty or condition as to quality of timber or lumber, 52 A.L.R. 1536. Implied warranty of fitness on sale of article by trademark, tradename, or other particular description, 59 A.L.R. 1180; 90 A.L.R. 410. Implied warranty of strength or fitness of chain, cable, or wire, 59 A.L.R. 1235. Express or implied warranty on sale for accommodation, 59 A.L.R. 1541. Construction and effect of express or implied warranty on sale of an article intended for use as an explosive, 62 A.L.R. 1510. Right of dealer against his vendor in case of breach of warranty as to article purchased for resale or resold, 64 A.L.R. 883.

Implied warranty by other than packer, of fitness of goods sold in sealed cans, 90 A.L.R. 1269; 142 A.L.R. 1434. Implied warranty of quality, condition, or fitness on sale of “job lot,” “leftovers,” and the like, 103 A.L.R. 1347. Presumption of negligence from foreign substance in food, 105 A.L.R. 1039. Liability of manufacturer or packer of defective article for injury to person or property of ultimate consumer who purchased from middleman, 105 A.L.R. 1502; 111 A.L.R. 1239; 140 A.L.R. 191; 142 A.L.R. 1490. Liability for injury or death from refrigerating machinery or apparatus, 117 A.L.R. 1425. Joinder of manufacturer or packer and retailer or other middleman as defendants in action for injury to person or damage to property of purchaser or consumer of defective article, 119 A.L.R. 1356. Infected or tainted condition of milk or other food, or contamination in water, and its causation of the sickness of the consumer, as inferable from such sickness, 130 A.L.R. 616. Implied warranty by retailer of cosmetics, 131 A.L.R. 123. Warranty of title by seller in conditional sale contract, 132 A.L.R. 338. Construction and application of provision in conditional sale contract regarding implied warranties, 139 A.L.R. 1276. Implied warranty, by other than packer, of fitness of goods sold in sealed cans, 142 A.L.R. 1434. Implied warranty of reasonable fitness of food for human consumption as breached by substance natural to the original product and not removed in processing, 143 A.L.R. 1421. Implied warranty of quality, condition, or fitness on sale of secondhand article, 151 A.L.R. 446. Manufacturer’s liability for injury or damage as affected by his test, or by his failure to test, for defects, 156 A.L.R. 479. Law of sales and liability in respect thereof as applied to transactions in selfservice stores, 163 A.L.R. 238. Intervening purchaser’s knowledge of defects in or danger of article, or failure to inspect therefor, as affecting liability of manufacturer or dealer for personal in-

jury or property damage to subsequent purchaser or other third person, 164 A.L.R. 371. Implied warranty of quality, fitness, or condition as affected by buyer’s inspection of, or opportunity to inspect, goods, 168 A.L.R. 389. Liability of seller of article not inherently dangerous for personal injuries due to the defective or dangerous condition of the article, 168 A.L.R. 1054. Implied warranty of fitness by one serving food, 7 A.L.R.2d 1027; 87 A.L.R.4th 804; 90 A.L.R.4th 12. Recovery by contractor or artisan, suing for breach of warranty, of damages for loss of good will occasioned by use in his business of unfit materials, 28 A.L.R.2d 591. Measure and elements of recovery of buyer rescinding sale of domestic animal for seller’s breach of warranty, 35 A.L.R.2d 1273. Form and substance of notice which buyer of goods must give in order to recover damages for seller’s breach of warranty, 53 A.L.R.2d 270. Implied warranty of fitness on sale of livestock, 53 A.L.R.2d 892. Size and kind of trees contemplated by contracts or deeds in relation to standing timber, 72 A.L.R.2d 727. What law governs liability of manufacturer or seller for injury caused by product sold, 76 A.L.R.2d 130. Liability of manufacturer or seller for injury caused by food or food product sold, 77 A.L.R.2d 7. Liability of manufacturer or seller for injury caused by beverage sold, 77 A.L.R.2d 215. Liability of manufacturer or seller for injury caused by automobile or other vehicle, aircraft, boat, or their parts, supplies, or equipment, 78 A.L.R.2d 460; 81 A.L.R.3d 318; 97 A.L.R.3d 627; 1 A.L.R.4th 411; 3 A.L.R.4th 489; 5 A.L.R.4th 483. Liability of manufacturer or seller for injury caused by industrial, business, or farm machinery, tools, equipment, or materials, 78 A.L.R.2d 594; 2 A.L.R.4th 262. Liability of manufacturer or seller for injury caused by paint, cement, lumber, building supplies, ladders, small tools, and like products, 78 A.L.R.2d 696; 84 A.L.R.3d 877.

Liability of manufacturer or seller for injury caused by toys, games, athletic or sports equipment, or like products, 78 A.L.R.2d 738; 95 A.L.R.3d 390. Liability of manufacturer or seller for injury caused by firearms, explosives, and flammables, 80 A.L.R.2d 488; 94 A.L.R.3d 291; 15 A.L.R.4th 909; 18 A.L.R.4th 206. Liability of auctioneer or clerk to buyer as to title, condition, or quality of property sold, 80 A.L.R.2d 1237. Liability of manufacturer or seller for injury caused by household and domestic machinery, appliances, furnishings, and equipment, 80 A.L.R.2d 598; 89 A.L.R.3d 210; 93 A.L.R.3d 99; 1 A.L.R.4th 748. Liability of manufacturer or seller for injury caused by clothing, shoes, combs, and similar products, 80 A.L.R.2d 702. Liability of auctioneer or clerk to buyer as to title, condition, or quality of property sold, 80 A.L.R.2d 1237. Liability of manufacturer or seller of product sold in container or package for injury caused by container or packaging, 81 A.L.R.2d 229; 36 A.L.R.4th 419. Liability of manufacturer or seller of container (bottle, barrel, drum, tank, etc.) or other packaging material for injury caused thereby, 81 A.L.R.2d 350; 36 A.L.R.4th 419. Products liability: manufacturer’s responsibility for defective component supplied by another and incorporated in product, 3 A.L.R.3d 1016. Contributory negligence or assumption of risk as defense to action for personal injury, death, or property damage resulting from alleged breach of implied warranty, 4 A.L.R.3d 501. Statute of limitations: when cause of action arises on action against manufacturer or seller of product causing injury or death, 4 A.L.R.3d 821. Seller’s duty to test or inspect as affecting his liability for product-caused injury, 6 A.L.R.3d 12. Manufacturer’s duty to test or inspect as affecting his liability for productcaused injury, 6 A.L.R.3d 91. Liability for warranties and representations in connection with the sale of airconditioning equipment, 15 A.L.R.3d 1207. Products liability: right of manufacturer or seller to contribution or indem-

nity from user of product causing injury or damage to third person, and vice versa, 28 A.L.R.3d 943. Products liability: extension of strict liability in tort to permit recovery by a third person who was neither a purchaser nor user of product, 33 A.L.R.3d 415. Liability of manufacturer, seller, or distributor of motor vehicle for defect which merely enhances injury from accident otherwise caused, 42 A.L.R.3d 560; 96 A.L.R.3d 900. Application of warranty provisions of Uniform Commercial Code to bailments, 48 A.L.R.3d 668. Liability for injury or death of pallbearer, 48 A.L.R.3d 1280. Necessity and propriety of instructing on alternative theories of negligence or breach of warranty, where instruction on strict liability in tort is given in products liability case, 52 A.L.R.3d 101. Failure to warn as basis of liability under doctrine of strict liability in tort, 53 A.L.R.3d 239. Products liability: strict liability in tort where injury results from allergenic (sideeffect) reaction to product, 53 A.L.R.3d 298. Strict liability in tort: liability of seller of used product, 53 A.L.R.3d 337. Liability of hospital or medical practitioner under doctrine of strict liability in tort, or breach of warranty, for harm caused by drug, medical instrument, or similar device used in treating patient, 54 A.L.R.3d 258. Products liability: product as unreasonably dangerous or unsafe under doctrine of strict liability in tort, 54 A.L.R.3d 352. Liability of water supplier for damages resulting from furnishing impure water, 54 A.L.R.3d 936. Products liability: proof, under strict tort liability doctrine, that defect was present when product left hands of defendant, 54 A.L.R.3d 1079. Liability of builder or subcontractor for insufficiency of building resulting from latent defects in materials used, 61 A.L.R.3d 792. Contracts for artificial insemination of cattle, 61 A.L.R.3d 811. Liability of installer or maintenance company for injury caused by door of au-

tomatic passenger elevator, 64 A.L.R.3d 1005. Promises or attempts by seller to repair goods as tolling statute of limitations for breach of warranty, 68 A.L.R.3d 1277. Admissibility of evidence of subsequent repairs or other remedial measures in products liability cases, 74 A.L.R.3d 1001; 38 A.L.R.4th 583; 64 A.L.R.5th 119. Statements on container that enclosed toy, game, sports equipment, or the like, is safe as affecting manufacturer’s liability for injury caused by product sold, 74 A.L.R.3d 1298. What constitutes a contract for sale under Uniform Commercial Code § 2-314, 78 A.L.R.3d 696. Products liability: liability for injury or death allegedly caused by defective tire, 81 A.L.R.3d 318. Products liability: liability for injury or death allegedly caused by defect in snowmobile or other recreational-purpose vehicle, 81 A.L.R.3d 394; 66 A.L.R.4th 622. Products liability: liability for injury or death allegedly caused by defect in mobile home or trailer, 81 A.L.R.3d 421. What are “merchantable” goods within meaning of UCC § 2-314 dealing with implied warranty of merchantability, 83 A.L.R.3d 694. Liability of manufacturer, seller, or installer for personal injury caused by door glass, 84 A.L.R.3d 877. Products liability: drain cleaners, 85 A.L.R.3d 727. Liability of manufacturer or seller for personal injury or property damage caused by television set, 89 A.L.R.3d 210. Practices forbidden by state deceptive trade practice and consumer protection acts, 89 A.L.R.3d 449. Products liability: what statute of limitations governs actions based on strict liability in tort, 91 A.L.R.3d 455. Who is “merchant” under UCC § 2314(1) dealing with implied warranties of merchantability, 91 A.L.R.3d 876. Products liability: stoves, 93 A.L.R.3d 99. Products liability: toys and games, 95 A.L.R.3d 390. Farmers as “merchants” within provisions of UCC Article 2, dealing with sales, 95 A.L.R.3d 484.

Products liability: forklift trucks, 95 A.L.R.3d 541. Products liability: duty of manufacturer to equip product with safety device to protect against patent or obvious danger, 95 A.L.R.3d 1066. Products liability: modern cases determining whether product is defectively designed, 96 A.L.R.3d 22. Products liability: defective vehicular gasoline tanks, 96 A.L.R.3d 265. Liability of packer, foodstore, or restaurant for causing trichinosis, 96 A.L.R.3d 451. Products liability: personal injury or death allegedly caused by defect in aircraft or its parts, supplies, or equipment, 97 A.L.R.3d 627. Products liability: personal injury or death allegedly caused by defect in motorcycle or its parts, supplies, or equipment, 98 A.L.R.3d 317. Products liability: liability of manufacturer or seller for injury or death caused by defect in boat or its parts, supplies, or equipment, 1 A.L.R.4th 411. Products liability: defective heating equipment, 1 A.L.R.4th 748. Products liability: industrial accidents involving conveyor belts or systems, 2 A.L.R.4th 262. Construction and effect of new motor vehicle warranty limiting manufacturer’s liability to repair or replacement of defective parts, 2 A.L.R.4th 576. Products liability: Diethylstilbestrol (DES), 2 A.L.R.4th 1091. Liability of manufacturer or seller of snowthrower for injuries to user, 2 A.L.R.4th 1284. Products liability: defective vehicular windows, 3 A.L.R.4th 489. Products liability: farm machinery, 4 A.L.R.4th 13. Products liability: glue and other adhesive products, 7 A.L.R.4th 155. Products liability: elevators, A.L.R.4th 852. Products liability: stud guns, staple guns, or parts thereof, 8 A.L.R.4th 70. Products liability: transformer and other electrical equipment, 10 A.L.R.4th 854. Products liability: fertilizers, insecticides, pesticides, fungicides, weedkillers,

and the like, or articles used in application thereof, 12 A.L.R.4th 462. Products liability: cranes and other lifting apparatuses, 13 A.L.R.4th 476. Extent of liability of seller of livestock infected with communicable disease, 14 A.L.R.4th 1096. Products liability: cement and concrete, 15 A.L.R.4th 1186. Products liability: tire rims and wheels, 16 A.L.R.4th 137. Products liability: firefighting equipment, 19 A.L.R.4th 326. Liability of hospital, physician, or other individual medical practitioner for injury or death resulting from blood transfusion, 20 A.L.R.4th 136. Liability of blood supplier or donor for injury or death resulting from blood transfusion, 24 A.L.R.4th 508. Products liability: animal feed or medicines, 29 A.L.R.4th 1045. Products liability: stud guns, staple guns, or parts thereof, 33 A.L.R.4th 1189. Products liability: household appliances relating to cleaning, washing, personal care, and water supply, quality, and disposal, 34 A.L.R.4th 95. Products liability: household equipment relating to storage, preparation, cooking, and disposal of food, 35 A.L.R.4th 663. Products liability: home and office furnishings, 36 A.L.R.4th 170. Computer sales and leases: breach of warranty, misrepresentation, or failure of consideration as defense or ground for affirmative relief, 37 A.L.R.4th 110. Products liability: personal soap, 54 A.L.R.4th 574. Liability of successor corporation for punitive damages for injury caused by predecessor’s product, 55 A.L.R.4th 166. Products liability: sufficiency of evidence to support product misuse defense in actions concerning lawnmowers, 55 A.L.R.4th 1062. Products liability: toxic shock syndrome, 59 A.L.R.4th 50. Products liability: sufficiency of evidence to support product misuse defense in actions concerning agricultural implements and equipment, 60 A.L.R.4th 678. Products liability: electricity, 60 A.L.R.4th 732. Products liability: building and construction lumber, 61 A.L.R.4th 121.

Liability of manufacturer of oral live polio (Sabin) vaccine for injury or death from its administration, 66 A.L.R.4th 83. Liability for injury incurred in operation of power golf cart, 66 A.L.R.4th 622. Products liability: industrial refrigerator equipment, 72 A.L.R.4th 90. Products liability: scaffolds and scaffolding equipment, 74 A.L.R.4th 904. Products liability: tractors, 75 A.L.R.4th 312. Products liability: bicycles and accessories, 76 A.L.R.4th 117. Products liability: exercise and related equipment, 76 A.L.R.4th 145. Products liability: trampolines and similar devices, 76 A.L.R.4th 171. Products liability: competitive sports equipment, 76 A.L.R.4th 201. Products liability: skiing equipment, 76 A.L.R.4th 256. Products liability: general recreational equipment, 77 A.L.R.4th 1121. Products liability: mechanical amusement rides and devices, 77 A.L.R.4th 1152. Products liability: lubricating products and systems, 80 A.L.R.4th 972. Liability for injury or death allegedly caused by spoilage or contamination of beverage, 87 A.L.R.4th 804. Liability for injury or death allegedly caused by foreign substance in beverage, 90 A.L.R.4th 12. Liability for injury or death allegedly caused by foreign object in food or food product, 1 A.L.R.5th 1. Liability for injury or death allegedly caused by spoilage, contamination, or other deleterious condition of food or food product, 2 A.L.R.5th 1. Liability for injury or death allegedly caused by food product containing object related to, but not intended to be present in, product, 2 A.L.R.5th 189. Products liability: roofs and roofing materials, 3 A.L.R.5th 851. Products liability: prefabricated buildings, 4 A.L.R.5th 667. Purchaser’s disbelief in, or nonreliance upon, express warranties made by seller in contract for sale of business as preclud-

ing action for breach of express warranties, 7 A.L.R.5th 841. Products liability: application of strict liability doctrine to seller of used product, 9 A.L.R.5th 1. Products liability: cigarettes and other tobacco products, 36 A.L.R.5th 541. Validity, construction, and application of computer software licensing agreements, 38 A.L.R.5th 1. Products liability: theatrical equipment and props, 42 A.L.R.5th 699. Causes of action governed by limitations period in UCC § 2-725, 49 A.L.R.5th 1. Breach of warranty in sale, installation, repair, design, or inspection of septic or sewage disposal systems, 50 A.L.R.5th 417. Liability of manufacturer or seller for injury or death allegedly caused by use of contraceptive, 54 A.L.R.5th 1. Construction and application of learned-intermediary doctrine, A.L.R.5th 1. Products liability: computer hardware and software, 59 A.L.R.5th 461. Products liability: liability for injury or death allegedly caused by defect in mobile home or trailer, 61 A.L.R.5th 473. Products liability: swimming pools and accessories, 65 A.L.R.5th 105. Products liability: paints, stains, and similar products, 69 A.L.R.5th 137. Products liability: helicopters, 72 A.L.R.5th 299. Products liability: consumer expectations test, 73 A.L.R.5th 75. Products liability: ladders, 81 A.L.R.5th 245. Products liability: personal injury or death allegedly caused by defect in motorcycle or its parts or equipment, 14 A.L.R.7th 7. Products Liability: Necessity and Admissibility of Expert or Opinion Evidence as to Causation of Injury to User of Construction Products and Equipment, 53 A.L.R.7th 8. Products Liability: Duty of Manufacturer or Seller of Component Part Incorporated in Another Product to Warn of Dangers, 58 A.L.R.7th Art. 4.