Affiliates for Evaluation v. Viasyn Corp.

500 So. 2d 688, 2 U.C.C. Rep. Serv. 2d (West) 1261, 12 Fla. L. Weekly 206, 1987 Fla. App. LEXIS 6204
CourtDistrict Court of Appeal of Florida
DecidedJanuary 6, 1987
Docket86-271
StatusPublished
Cited by21 cases

This text of 500 So. 2d 688 (Affiliates for Evaluation v. Viasyn Corp.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Affiliates for Evaluation v. Viasyn Corp., 500 So. 2d 688, 2 U.C.C. Rep. Serv. 2d (West) 1261, 12 Fla. L. Weekly 206, 1987 Fla. App. LEXIS 6204 (Fla. Ct. App. 1987).

Opinion

500 So.2d 688 (1987)

AFFILIATES FOR EVALUATION AND THERAPY, INC., a Florida Corporation, Appellant,
v.
VIASYN CORP., Appellee.

No. 86-271.

District Court of Appeal of Florida, Third District.

January 6, 1987.

*689 Gilbride, Heller & Brown and Dyanne E. Feinberg, for appellant.

Walton, Lantaff, Schroeder & Carson and Douglas H. Stein, for appellee.

Before SCHWARTZ, C.J., and HUBBART and DANIEL S. PEARSON, JJ.

HUBBART, Judge.

This is an appeal from a final order dismissing three counts of a multi-count complaint against a computer manufacturer in a products liability action sounding in negligence and breach of implied warranty. Because (a) the plaintiff consumer suffered no personal injury or property damage, an essential element of the negligence action herein, and (b) the plaintiff consumer had no privity of contract with the defendant manufacturer, an essential element of the contractual breach of implied warranty action herein, we affirm the final order under review.

I

On August 1, 1985, the plaintiff consumer Affiliates for Evaluation and Therapy, Inc. [hereinafter "Affiliates"] brought a multi-count products liability action against the defendant manufacturer Viasyn Corp. [hereinafter "Viasyn"] and the defendant retailers Unicomp Corp. of America, Martin Kaplan and Ann Kaplan [hereinafter "Unicomp"] in which counts VIII through X of the complaint were the only counts pertaining to the defendant Viasyn. The complaint alleged in these aforesaid counts that in July 1984 the plaintiff Affiliates, a corporation employing approximately forty-two psychologists and psychiatrists, purchased a multi-user CompuPro 816 computer from the defendant Unicomp, which computer was manufactured by the defendant Viasyn. After delivery of the product, the computer allegedly experienced various mechanical breakdowns from August 1984 through May 1985, as a result of which the plaintiff Affiliates was required to expend thousands of man hours in working on the computer, preparing statements for its employees manually, and otherwise trying to run its business at considerable loss without a computer.

Count VIII of the complaint sounds in negligence and charges Viasyn with negligence in (a) the selection of an incompetent retailer, Unicomp, which was unable, as required, to install and maintain the subject computer, and (b) failing to take steps to repair the subject computer during the period of the computer's mechanical failure or to notify the plaintiff Affiliates that Unicomp had no expertise in installing or maintaining the said computer or in training the said plaintiff to use the computer. Counts IX and X of the complaint sound in breach of implied warranty of fitness and breach of implied warranty of merchantability *690 and allege that (a) Viasyn impliedly warranted that the computer was fit for the purpose for which it was intended and was of merchantable quality, and (b) both warranties were breached in that the subject computer experienced continual mechanical failures.

The defendant Viasyn moved to dismiss the above counts of the complaint on the ground that the negligence and breach of implied warranty counts failed to state a cause of action against it. The trial court granted this motion and dismissed the action against the defendant Viasyn on the authority of GAF Corp. v. Zack Co., 445 So.2d 350 (Fla.3d DCA), pet. for review denied, 453 So.2d 45 (Fla. 1984), concluding that (1) the negligence count alleged no personal or property damage suffered by the plaintiff Affiliates, an essential element of this action, and (2) the breach of implied warranty counts alleged (a) no personal or property damage, or (b) no contractual privity between the plaintiff Affiliates and the defendant Viasyn, one or the other of which was an essential element of these actions. This appeal follows.

II

The plaintiff Affiliates candidly acknowledges that GAF Corp. directly controls the instant case and fully supports the trial court's ruling. It is urged, however, that GAF Corp. was wrongly decided in that it conflicts with settled authority from both the Florida Supreme Court and the District Courts of Appeal in Florida, and, consequently, should be receded from; it is also urged that the alleged conflicting Florida authorities mandate a reversal in this case. The defendant Viasyn disagrees with this position, argues that GAF Corp. is consistent with the established law of Florida and elsewhere on this subject, and urges an affirmance based on this settled authority. In order to evaluate the merits of these respective positions, it is necessary to consult the applicable Florida law on negligence and breach of implied warranty in products liability actions.

A

In GAF Corp. this court held that a products liability action sounding in negligence does not lie against the manufacturer of an alleged defective product where, as here, the plaintiff consumer suffers no personal injury or property damages from the said product and claims purely economic losses from use of the product. In that case, a plaintiff roofing contractor purchased from a third party retailer certain allegedly defective roofing materials produced by a defendant manufacturer; the plaintiff roofing contractor used these defective materials to install roofs for two of his customers; the customers, in turn, sued and collected damages from the plaintiff roofing contractor for installing a defective roof. The plaintiff roofing contractor then sued the defendant manufacturer in a products liability action sounding in negligence, claiming that he had suffered the above economic damages, along with attorney's fees and costs in the aforesaid suits, as a result of using the defendant's defective roofing materials. We reversed a judgment for the plaintiff based on a jury verdict and remanded with directions that judgment be entered for the defendant manufacturer. We stated:

"Without dispute, no personal injury or property damage was sustained by the plaintiff Zack or any other person as a result of the allegedly defective materials in this case. This fact, we think, is fatal to the plaintiff Zack's claims in this case, assuming without deciding that all such claims sound in tort rather than contract as urged by the plaintiff Zack.
... .
A negligence action against the defendant GAF cannot lie herein because no cognizable tort damages were sustained by the plaintiff, Zack, see McIntyre v. McCloud, 334 So.2d 171, 172 (Fla. 3d DCA 1976); stated differently, no personal injury or property damage was sustained by the plaintiff Zack as a result of its purchase and installation of the defective roofing materials manufactured by *691 the defendant GAF and therefore no negligence action is maintainable herein."

GAF Corp., 445 So.2d at 351-52.

Plainly, the result reached in GAF Corp. is in full accord with the overwhelming weight of authority on this subject throughout the country.[1] Dean Prosser summarizes this established law as follows:

"There can be no doubt that the seller's liability for negligence covers any kind of physical harm, including not only personal injuries, but also property damage to the defective chattel itself, as where an automobile is wrecked by reason of its own bad brakes, as well as damage to any other property in the vicinity. But where there is no accident, and no physical damage, and the only loss is a pecuniary one,

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500 So. 2d 688, 2 U.C.C. Rep. Serv. 2d (West) 1261, 12 Fla. L. Weekly 206, 1987 Fla. App. LEXIS 6204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/affiliates-for-evaluation-v-viasyn-corp-fladistctapp-1987.