In this Emerging Issues Analysis, Ronald W. Eades discusses the Kentucky Supreme Court’s ruling upholding a strict privity requirement for implied warranty of merchantability claims.
Although the majority of U.S. jurisdictions do not require privity between those plaintiffs listed as appropriate third parties and possible defendants in a chain of distribution in a products liability case, Kentucky maintains that the listed third parties must have been in privity with the defendant who was sued. Because the Kentucky Products Liability Act limits liability for claims against retailers to negligence or express warranty when the manufacturer is identified, this case seems to eliminate claims for implied warranty of merchantability in products liability actions.
Mr. Eades is Professor of Law at the Louis D. Brandeis School of Law, University of Louisville. He is also the author of Jury Instructions in Products Liability, Jury Instructions in Commercial Litigation, and Jury Instructions on Damages in Tort Actions. This commentary discusses Compex Int'l Co. v. Taylor (209 S.W.3d 462 [Ky. 2006]), a Kentucky Supreme Court opinion that places the state in the minority with regard to privity requirements for breach of the implied warranty of merchantability, and its apparent inconsistency with the state’s other products liability statutes.
Compex Int'l Co. v. Taylor involves the purchase, by parents, of a chair from a retailer. The buyers’ son sustained injuries when the chair collapsed as he sat in it. The son sued the chair manufacturer, alleging, among other things, that the manufacturer had breached the implied warranty of merchantability. The son met the requirements of Kentucky’s provision of the Uniform Commercial Code (KRS § 355.2-318), an exception to the common law privity requirement for breach of warranty claims. The issue was whether the statutes exception to strict privity would apply when the original buyer was not in privity with the manufacturer. . . .
In the Compex decision, the Kentucky Supreme Court overlooked the general distinction between horizontal and vertical privity. Horizontal privity refers to the relationships between buyer, family, household, and other third party plaintiffs.
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