Unlike its cousin, the breach of express warranty, which is based upon a clear, unmistakable promise, advertisement or contract provision, the breach of implied warranty is far more nebulous; under this theory, a defendant can be held liable for damages (including personal injury) under either one of two circumstances:

  1. If the product was not fit for its reasonably foreseaable use; or,
  2. If the product was not fit for its intended purpose.

To better clarify the former theory of liability, here are two examples:

Although a folding chair is not intended for use as a stepstool for changing lightbulbs, chances are that this would still be deemed a foreseeable use of this product. Conversely, a jury is unlikely to find it foreseeable that a folding chair would be used as a makeshift flyswatter or baseball bat.

In a parallel, albeit simpler vein, a defendant can be held liable for damages - even in the absence of an explicit warranty - if the product fails to perform in its expected manner. In point of fact, this theory comes up rather frequently in the realty context, where a tenant seeks an offset to their rent based upon the landlord or owner's breach of the implied warranty of habitability.

As a final note, it bears repeating that since a claim for breach of implied warranty is essentially a breach of contract claim, the plaintiff will still need to prove privity of contract, i.e., that he or she dealt directly with the defendant that is being sued on this claim. Consequently, in the defective products context, a plaintiiff will often have difficulty proving a breach of imlied warranty claim against those higher up and more removed in the product's chain of distribution, such as the manufacturer or distributor.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer