Product Liability Update (Continued from page 7)


had held that privity was required in ac- tions for breach of express warranty and breach of the implied warranty for a par- ticular purpose in which only economic losses are claimed. The Court of Appeals acknowledged the almost insurmountable burden of proving breach of this warranty in such cases because it is “often impos- sible for a seller to learn of a particular purpose of a buyer, and for a buyer to rely upon a seller to select the right product, without some direct dealing between such buyer and seller.”46


Thus, the warranty


of fitness would not usually be available against a remote manufacturer who had no reason to know of any special use to which the buyer would put the goods, even though the dealer could be liable. 47 The Court surmised that it was “possible” that a seller could learn the buyer’s par- ticular purpose through other means, such as an intermediary/broker.48


It echoed the


sentiments of treatise authors that verti- cal privity would almost always be a bar against a plaintiff suing a remote link in


46Id. 47


Ford Motor, 365 Md. at 344, 779 A.2d at 375 (relying on Clark & Smith, THE LAW OF PROD- UCT WARRANTIES, ¶6.03[1], at 6-12 (Supp. 1999)).


48


Id. at 343 n.21, 779 A.2d at 375 n.21 (rely- ing on Clark & Smith, THE LAW OF PRODUCT WARRANTIES, ¶10.03, at 10-17 (1984)).


the chain of distribution for breach of this warranty because a cause of action under Section 2-315 requires the seller to have “reason to know” the buyer’s special use of the goods and the buyer’s reliance upon the seller’s expertise.49 On the facts before it, the Court held


there was insufficient proof of knowledge because neither Elzenheimer Chevrolet, which converted the cab chassis truck into a tow truck, nor International was the direct purchaser of the original product from Ford. It therefore became “more difficult to prove that Ford knew or had reason to know, when first selling the truck to [the dealership], that [Interna- tional] would buy the converted vehicle from Elzenheimer and would use it as a tow truck, or that anyone in the chain of purchases was relying on Ford to provide an appropriate product for that ultimate use.”50


The Court of Appeals concluded that the implied warranty of fitness for a par- ticular purpose was not breached because General Accident’s insured was using Ford’s vehicle for one of its many ordi- nary purposes—as a tow truck–at the time the truck unexpectedly caught on fire. While Ford had admitted in Answers to Interrogatories that it was “foreseeable that [the 1995 F-350] could be used as a tow truck” and that it sold the vehicle with the “anticipation that it would be or could


49Id. at 344, 779 A.2d at 376. 50Id. at 345, 779 A.2d at 376.


be modified into a tow truck, dump truck...or any one of many other accept- able uses,”51


the Court concluded that this


level of knowledge was insufficient: [Ford] sold the chassis cab to a dealer- ship in Mississippi, which dealer in turn sold the chassis cab (unaltered) to Elzenheimer Chevrolet, which con- verted it into a tow truck. There is no evidence that General Accident’s in- sured, International, articulated to [Ford] what particular purpose it had in mind for the chassis cab and no evi- dence that General Accident’s insured sought to use the vehicle for other than one of the ordinary purposes.”52 The Court determined that there was no basis to find any particular purpose in the present case, let alone that Ford had knowledge of such a purpose on the part of International.53


The Court specifically


noted that Ford’s admissions were inad- equate to support the Court of Special Appeals’ assertion that Ford knew the chassis cabs “will be modified in some form or another” and that “Elzenheimer had, in the past, purchased Ford chassis cabs for the purpose of turning them into tow trucks.”54


Interestingly, the Court


had earlier acknowledged in its own reci- tation of the facts that chassis cab trucks are “sold with the anticipation that they can be, and usually are, modified into a tow truck, dump truck, garbage truck, or any one of many other acceptable uses through the addition of the required equipment.”55 In light of its determination that Gen-


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8 Trial Reporter


Id. at 346 n.22, 779 A.2d at 377 n.22 (em- phasis added)


52Id. at 347, 779 A.2d at 377. 53


Id. at 350, 779 A.2d at 379. For this reason, the Court did not consider whether the re- maining elements of Section 2-315 were met. Id.


54Id. at 347, 779 A.2d at 377. 55


Id. at 324 n.1, 779 A.2d at 364 n.1 (emphasis added).


56253 Md. 282, 252 A.2d 855 (1969). 5748 Md. App. 617, 429 A.2d 277 (1981).


Winter 2003


eral Accident’s claim failed for want of proof of the seller’s knowledge of a par- ticular purpose, the Court expressly declined Ford’s invitation to repudiate Myers v. Montgomery Ward & Co.,56 Thomas v. Ford Motor Credit Co.57


and Ford


claimed Thomas, which relied upon Myers, wrongly transformed the ordinary pur- pose of an automobile–transpor- tation–into a particular purpose in order


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