Consumer Law

Breach of implied warranty of merchantability or fitness may be a tort

By Richard Alderman

In JCW Electronics v. Garza, the Texas Supreme Court consider whether to apply the state?s proportionate responsibility statute to a claim based on a UCC implied warranty. Despite the fact that a prior version of the state expressly included UCC claims, an inclusion that the legislature removed and replace with language stating it applied to ?to any cause of action based on tort? the court held that the statute applied. The court found that ?a party who seeks damages for death or personal injury under a breach of implied warranty claim seeks damages in tort.? Interestingly, it appears that if the same cause of action were brought for property damage, the claim would not sound in tort, but would be a breach of contract. In other words, at least in Texas, a UCC implied warranty claim might be tort or contract depending on the nature of the damages. One wonders what the result would be if the claim involved property damage and personal injury.

Full post as published by CL&P Blog on July 03, 2008 (boomark / email).