Battalla v. State, 10 N.Y.2d 237, 219 N.Y.S.2d 34 (1961)

Simet, Donald P.

English

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Torts—Privity of Contract No Longer Needed in Certain Warranty Actions

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Buffalo Law Review Volume 11 Number 1 Article 102 10-1-1961 Torts—Privity of Contract No Longer Needed in Certain Warranty Actions Donald P. Simet Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Torts Commons Recommended Citation Donald P. Simet, Torts—Privity of Contract No Longer Needed in Certain Warranty Actions, 11 Buff. L. Rev. 257 (1961). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol11/iss1/102 This The Court of Appeals Term is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. COURT OF APPEALS, 1960 TERMThere is considerable justification for the dissent's fears that a "Pandora'sbox" of false claims will be opened and that a judge or jury might be convincedof a causal connection by "purchased" expert medical testimony. If there wereno merit in these apprehensions, perhaps Mitchell would have fallen muchsooner. But the exceptions to the rule have shown that it does not effectivelyeliminate many bad claims, but may only inhibit the prosecution of many goodones. And while medical testimoy may be presented by the plaintiff to supportan unjust claim, it may also be used by the defense to disprove it.Future cases may prove the decision in Battalla to be the wrong one. Butit is more likely, looking at the experience of other "non-impact" states, thatthe majority will be vindicated. In the tradition of Rumsey v. New York &N.E.R.R. Co.32 and more recently Woods v. Lancet,33 the Court has reexam-ined a much-criticized rule of the past "without fear, and revised withoutreluctance, rather than to have the character of our law impaired, and thebeauty and harmony of the system destroyed by the perpetuity of error. " 34 Theexceptions to and deviations from Mitchell had left this area of New York caselaw in an uncertain state. By the instant decision, the Court of Appeals hasrelieved much of this confusion and aligned itself with the reasoned positionand not-unhappy experience of the majority of states.R.V.B.PRIVITY OF CONTRACT No LONGER NEEDED IN CERTAIN WARRANTY ACTIONSUntil recently, the New York courts had continued unchanged the longstanding rule that recovery in warranty, express or implied, could not be allowedin the absence of privity of contract.35 The rule rested on the concept thata warranty is an incident of a contract, running only between the seller and onein contractual relationship (privity) with him.36 Under the rule, retail dealers,manufacturers, and wholesalers stood immune to warranty actions by claimantsother than the actual purchasers of injurious products.The obvious harshness of the rule prompted the courts to fashion imagi-native devices to supply or, more accurately, evade the privity rule in findingfor certain nonpurchaser claimants. A long line of cases has used the device ofthe agency doctrine. The Court of Appeals first applied the device in Ryan v.Progressive Stores, Inc. 37 to permit a claimant, whose wife was the actualpurchaser, to recover in warranty on the ground that the wife acted as theclaimant's agent. The mere relationship of husband and wife gave rise tothe presumption that the husband's funds were used to make the purchase.Other agency cases have included such successful claimants as: the'sister of the32. 133 N.Y. 79 (1892).33. 303 N.Y. 349, 102 N.E.2d 691 (1951).34. Kent's Com. (13th ed.) 477, cited in Woods v. Lancet, supra note 33 at 355, 102N.E.2d at 694.35. Turner v. Edison Storage Battery Co., 248 N.Y. 73, 161 N.E. 423 (1928).36. Fairbank Canning Co. v. Metzger, 118 N.Y. 260, 23 N.E. 372 (1890).37. 255 N.Y. 512, 157 N.E. 828 (1927).BUFFALO LAW REVIEWactual purchaser,38 the wife of the actual purchaser,30 and the guest of theactual purchaser. 40 The position of the infant nonpurchaser claimant helpedlead to the fashioning of the second device, since the use of the agency doctrinein favor of the infant would have necessitated the unlikely presumption thatthe child's money was spent for the purchase. In the lone case employing thedevice of the third-party beneficiary doctrine the court reasoned that theparent had made the purchase for the benefit of the child, and thus the purchasewas in effect a third-party beneficiary contract.41 It should be noted that thecourts have generally limited recovery to actions involving injurious foodproducts.42 Thus, the courts have in the past been satisfied to confine theirefforts in expanding warranty protection on behalf of nonpurchaser claimantsto the fashioning and use of devices to evade the privity rule rather than anyattempt to directly alter the rule, itself.The present case, Greenberg v. Lorenz,43 seems for the first time to dispensewith the royal seal of privity. The Court of Appeals held that an infant, whosefather was the actual purchaser, could recover against a retailer for breachof warranties of fitness and merchantability44 in the sale of a can of salmonhaving bits of metal concealed in the fish. Chief Judge Desmond concluded,"Today when so much of what we eat is bought in packages it is not just orsensible to confine the warranty's protection to the individual buyer. At leastas to food and household goods, the presumption should be that the purchasewas made for all the members of the household.1 45It is significant that the Court speaks beyond the infant claimant in thecase to such other nonpurchaser claimants as comprise the "members of thehousehold." Presumably, any of the nonpurchaser claimants coming within thiscategory will in the future be accorded the benefit of the distinct doctrine of thecase. It is also reasonable to expect that the nonpurchaser claimants permittedrecovery under the agency doctrine will eventually be included under the newdoctrine. Moreover, since the Court's basis for allowing recovery is thearbitrary discrimination against nonpurchaser claimants caused by the privityrule, the same arbitrary discrimination posed by the "members of the household"limit promises a further broadening of the class of permissible claimants.Similarly, the Court's words go beyond food items (although the case deals38. Bowman v. Great Atlantic & Pacific Tea Co., 284 A.D.2d 663, 133 N.Y.S.2d 904(4th Dep't 1954), aff'd without opinion, 308 N.Y. 780, 125 N.E.2d 165 (1955).39. Gimenez v. Great Atlantic & Pacific Tea Co., 264 N.Y. 390, 191 N.E. 27 (1934).40. Welsh v. Schiebelhuth, 11 Misc. 2d 312, 169 N.Y.S.2d 309 (Sup. Ct. 1957).41. Parrish v. Great Atlantic & Pacific Tea Co., 13 Misc. 2d 33, 177 N.Y.S.2d 7(Munic. Ct. 1958).42. In Blessington v. McCrory Stores Corp., 305 N.Y. 140, 111 N.E.2d 421 (1953)the Court in passing on a statute of limitations point did not dismiss the cause, as it mighthave, on the ground that the warranty protection accorded nonpurchasers extended to fooditems and not to the clothing item involved in the case.43. 9 N.Y.2d 195, 213 N.Y.S.2d 39 (1961).44. N.Y. Pers. Prop. Law § 96 (1) (2).45. Greenberg v. Lorenz, supra note 43 at 215, 213 N.Y.S.2d at 42.258COURT OF APPEALS, 1960 TERMprecisely with canned salmon only) to include "food and household goods."The product class may predictably grow to include even items of clothing. 46Professor Prosser has said in this regard, "It is not difficult to predict a processof development similar to that of the maker's liability in negligence, which willextend first to products involving a high degree of risk, and perhaps eventuallyto anything which may be expected to do harm if defective."'4 7 The fruition ofthis now famous prediction appears to be more than a possibility in our courtsafter this decision.Not only does the Court's holding seem to embrace an extensive number ofnew claimants and fresh products, but it also announces a clean break with theprivity rule. The opinion is quite frank about the "nonprivity" of the infantclaimant. No attempt is made to guise the holding in the agency doctrine orthe third-party beneficiary doctrine. The Court speaks in terms of "change"in the privity rule, itself, and inquires into the origin of the rule in justifyingsuch change. Simply stated, the Court holds that privity is no longer aprerequisite in certain warranty actions. Thus, the privity rule seems to havegiven way at least in a limited area to a more realistic approach to warrantyclaims.The only noticeable pause the Court takes in coming to its decision is theshort time given to resolving the propriety of judicial change in the rule asopposed to legislative change. The Court argues that the privity rule is in itsorigin merely a rule of judicial making, and, moreover, that no insistence on therule can be found in the statutes. Justice Froessel in a separate concurringopinion, while acknowledging the correctness of the present change, expresseddoubt as to the propriety of future judicial change. He points to the inequityof holding a retailer liable where there is no fault on his part for the injuriouscharacter of the packaged food he sells. The plight of the retailer, he believes,approximates the unjust situation that the nonpurchaser claimant has beenplaced in by the privity rule. He urges that the dilemma of choosing betweenthe innocent retailer and the misfortunate nonpurchaser claimant be left tolegislative investigation and determination.4"The importance of the present case is that it discernibly stands for thefirst clean, if limited, break with the privity rule in warranty actions andforetells of the further dispensation of the rule in an increasing number of cases.D. P.S.ATTACK ON MANUFACTURER'S PRODUCT MAY IMPUGN His INTEGRITY AND BEACTIONABLE WITHOUT PROOF OF SPECIAL DAMAGESIn Harwood Pharmacal Co. v. National Broadcasting Co.,49 plaintiff46. Blessington v. McCrory Stores Corp., supra note 42.47. Prosser, Torts 510 (2d ed. 1955).48. For a discussion of the propriety of judicial change in the privity rule in NewYork see Note, 8 Buffalo L. Rev. 290 (1959).49. 9 N.Y.2d 460, 214 N.Y.S.2d 725 (1961).259

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Torts—Privity of Contract No Longer Needed in Certain Warranty Actions

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