KANSAS COMMENT, 1996

1. This section defines the obligation that arises when the seller undertakes to sell goods for a particular purpose of which it is aware. The warranty under this section, like the implied warranty of merchantability under the previous section, is an implied warranty. The implied warranty of fitness for a particular purpose does not arise out of the mere fact of sale, however, as does the implied warranty of merchantability, and will not be present in the vast majority of cases. Moreover, any seller, not just a merchant, may make the implied warranty under this section, although a merchant is more likely to have the required expertise. Frequently, the facts giving rise to an implied warranty of fitness also will show that the seller made an express warranty under 84-2-313. See Boehm v. Fox, 473 F.2d 445 (10 th Cir. 1973) (applying Kansas law).

2. For an implied warranty of fitness for a particular purpose to arise, (1) the seller must have reason to know of the buyer's particular purpose for the goods; (2) the buyer must rely on the seller's expertise in furnishing goods suitable for the buyer's purpose; and (3) the seller must have reason to know of the buyer's reliance. If the seller has no knowledge or reason to know of any purpose of the buyer, the warranty is not created. Wight v. AgriStor Leasing, 652 F. Supp. 1000 (D. Kan. 1987). In addition, if the buyer provides the specifications for the goods, the warranty does not arise because the buyer did not rely on the seller's expertise. Hendricks v. Comerio Ercole, 763 F. Supp. 505 (D. Kan. 1991).

3. A "particular" purpose under this section means an unusual, non-ordinary purpose. When goods are bought for ordinary purposes and alleged not to be fit for those purposes, even if the purpose was known to the seller, the appropriate claim is for breach of the implied warranty of merchantability, not the implied warranty of fitness under this section. See International Petroleum Serv., Inc. v. S&N Well Serv., Inc., 230 K. 452, 639 P.2d 29 (1982); see, e.g., Smith v. Stewart, 233 K. 904, 667 P.2d 358 (1983) (operation of boat on inland lake within ordinary use of boat); Stover v. Eagle Prod., Inc., 896 F. Supp. 1085 (D. Kan. 1995) ("using dog food to feed dogs is the ordinary purpose of the product"); Duffee v. Murray Ohio Mfg. Co., 866 F. Supp. 1321 (D. Kan. 1994) (child riding and braking bicycle are ordinary, not unusual uses of children's bicycle).

4. For cases illustrating the proper application of this section, see Circle Land & Cattle Corp. v. Amoco Oil Co., 232 K. 482, 657 P.2d 532 (1983) (seller made specific recommendation, at buyer's request, for oil suitable for particular type of irrigation engine); Addis v. Bernadin, Inc., 226 K. 241, 597 P.2d 250 (1979) (buyer relied on seller's expertise for salad dressing jar lids even though buyer ordered specific lids; seller knew lids not suitable); Geo. C. Christopher & Son, Inc. v. Kansas Paint & Color Co., 215 K. 185, 523 P.2d 709, modified on rehearing, 215 K. 510, 525 P.2d 626 (1974) (buyer relied on seller to select paint with specific qualities of adhesion).

5. Under K.S.A. 34-284, a transferor of a negotiable warehouse receipt covering stored grain may make an implied warranty of fitness for a particular purpose.

Law Review and Bar Journal References:

"Caveat Venditor—Strict Products Liability Under the Uniform Commercial Code," Norman E. Beal, 16 K.L.R. 285, 287 (1968).

"A New Kansas Approach to an Old Fraud," consumer protection, Polly Higdon Wilhardt, 14 W.L.J. 623, 624 (1975).

"Beefing Up Product Warranties: A New Dimension In Consumer Protection," Barkley Clark, Michael J. Davis, 23 K.L.R. 567, 572 (1975).

Warranty violations in tripartite finance lease agreements, Winton A. Winter, Jr., 25 K.L.R. 573, 580 (1977).

"Survey of Kansas Law: Consumer Law," John C. Maloney, 27 K.L.R. 197, 206 (1979).

"Farmers and the Law: Exemptions and Exceptions," J. W. Looney, 50 J.B.A.K. 7, 19 (1981).

"Housing Defects: Homeowner's Remedies—A Time for Legislative Action," William J. Fields, 21 W.L.J. 72, 77, 87, 88 (1981).

"History of Warranties on Quality in Sale of Goods," Paul B. Rasor, 21 W.L.J. 175, 210, 212 (1982).

"Some Observations on the Kansas Product Liability Act (Part I)," William Edward Westerbeke, 53 J.K.B.A. 296 (1984).

"Agricultural Credit and The Uniform Commercial Code: A Need for Change?" Keith G. Meyer, 34 K.L.R. 469, 490 (1986).

"Privity of Contract and Economic Losses: 'Watchman, What of the Night?'" Alan T. Blinzler and Stephen M. Fitzgerald, 11 J.K.T.L.A. No. 1, 13 (1987).

"Electronic Commerce in Kansas: Contract Formation and Formalities Under Article 2," Christopher R. Drahozal, 68 J.K.B.A. No. 5, 22 (1999).

"A Primer for Handling a Defective Tire Case: The Plaintiff's View," Stephen N. Six, J.K.T.L.A. Vol. XXVII, No. 5, 10 (2004).

CASE ANNOTATIONS

1. Sufficient evidence was present from which jury could find an implied warranty of fitness for particular purpose. Boehm v. Fox, 478 F.2d 445, 449.

2. Applied recovery instructions to jury proper on implied warranty for steel primer. Christopher & Son v. Kansas Paint & Color Co., 215 Kan. 185, 190, 197, 523 P.2d 709. Modified: 215 Kan. 510, 525 P.2d 626.

3. Applied; water well drilling agreement, warranty as to equipment; no implied warranty as to quantity of water to be obtained. Franklin v. Northwest Drilling Co., Inc., 215 Kan. 304, 311, 313, 524 P.2d 1194.

4. Applied; action involving construction of commercial transaction; disclaimer not conspicuous. Atlas Industries, Inc. v. National Cash Register Co., 216 Kan. 213, 222, 531 P.2d 41.

5. Section mentioned; person supplying equipment and workmen subject to implied warranty of performance in workmen-like manner. Belger Cartage Serv., Inc. v. Holland Construction Company, 224 Kan. 320, 334, 582 P.2d 1111.

6. Agent contracting for disclosed principal not liable for breach of implied warranty. Service Iron Foundry, Inc. v. M. A. Bell Co., 2 Kan. App. 2d 662, 671, 672, 588 P.2d 463.

7. Action for damages resulting from sale of animals under quarantine; alleged violation of act; award of punitive damages upheld. Kiser v. Gilmore, 2 Kan. App. 2d 683, 687, 587 P.2d 911.

8. Judgment for defendant in damage action for breach of implied warranties reversed and remanded; acceptance of goods; remedy proper. Linscott v. Smith, 3 Kan. App. 2d 1, 587 P.2d 1271.

9. Damages found to have resulted from buyer's reliance on seller's skill or judgment to select appropriate goods in conformity with intended use; seller's conduct was breach of implied warranty of fitness for a particular purpose. Addis v. Bernardin, Inc., 226 Kan. 241, 245, 246, 597 P.2d 250.

10. Cited; trial court did not err in excluding instruction on implied warranty of fitness for a particular purpose in medical malpractice action. Lindquist v. Ayerst Laboratories, Inc., 227 Kan. 308, 320, 321, 607 P.2d 1339.

11. Where lease agreements were intended to create security interests under K.S.A. 84-1-201(37)(b), provisions of Article 9 of UCC applicable. CIT Financial Services, Inc. v. Gott, 5 Kan. App. 2d 224, 229, 231, 615 P.2d 774.

12. Inapplicable where buyer purchasing service from immediate seller and product used for its ordinary purpose. Carson v. Chevron Chemical Co., 6 Kan. App. 2d 776, 786, 787, 788, 635 P.2d 1248 (1981).

13. Implied warranties apply to the sale of used goods; equipment purchased for ordinary purposes, no warranty for a particular purpose arises. International Petroleum Services, Inc. v. S & N Well Service, Inc., 230 Kan. 452, 453, 455, 456, 461, 639 P.2d 29 (1982).

14. Buyer relied on seller's skill or judgment in selecting appropriate goods which caused damage to buyer's property; breach of an implied warranty for a particular purpose. Circle Land & Cattle Corp. v. Amoco Oil Co., 232 Kan. 482, 486, 657 P.2d 532 (1983).

15. Attempt to limit implied warranty imposed hereby was violation of consumer protection act. Stair v. Gaylord, 232 Kan. 765, 776, 659 P.2d 178 (1983).

16. Warranty of fitness for particular purpose requires privity and knowledge of use and reliance on seller's judgment. Owens-Corning Fiberglas v. Sonic Dev. Corp., 546 F. Supp. 533, 540 (1982).

17. Casual sale of yacht used for ordinary purposes; no implied warranty of fitness for particular purpose arises. Smith v. Stewart, 233 Kan. 904, 907, 908, 667 P.2d 358 (1983).

18. Cited; implied warranties not extended to remote seller or manufacturer of product not inherently dangerous for economic loss without privity. Professional Lens Plan, Inc. v. Polaris Leasing Corp., 234 Kan. 742, 748, 755, 675 P.2d 887 (1984).

19. Economic realities test noted; statute applicable to lease-purchase agreements. K-B Trucking Co. v. Riss Intern. Corp., 763 F.2d 1148, 1164 (1985).

20. No implied warranty for particular purpose in sale of storage systems where systems put to ordinary use. Agristor Leasing v. Meuli, 634 F. Supp. 1208, 1220 (1986).

21. No implied warranty of fitness for particular purpose where none known by seller at time of sale. Wight v. Agristor Leasing, 652 F. Supp. 1000, 1011 (1987).

22. Foreign manufacturers' designation of American corporation to market products nationwide sufficient for jurisdiction under long-arm statute (K.S.A. 60-308(b)(7)). Bohannon v. Honda Motor Co., Ltd., 682 F. Supp. 42, 43 (1988).

23. Limitations of implied warranties examined where Kansas consumer protection act (K.S.A. 50-623 et seq.) comes into play. Farrell v. General Motors Corp., 249 Kan. 231, 238, 815 P.2d 538 (1991).

24. Question of fact as to presence of breach of implied warranty of fitness for a particular purpose; summary judgment denied. Hendricks v. Comerio Ercole, 763 F. Supp. 505, 513 (1992).

25. No implied warranty of fitness for a particular purpose for asbestos-containing materials. Unified School Dist. No. 500 v. U.S. Gypsum Co., 788 F. Supp. 1173, 1174, 1177 (1992).

26. Whether respondent tolled statute of limitations by acknowledging liability examined; equitable estoppel discussed. Memorial Hosp. v. Carrier Corp., 844 F. Supp. 712, 715, 719 (1994).

27. Buyer failed to prove existence of an express warranty that boat would travel at certain speed. Sithon Maritime Co. v. Holiday Mansion, 983 F. Supp. 977, 988 (1997).

28. Evidence sufficient to avoid summary judgment on claim of breach of implied warranty of fitness for particular purpose. Lohmann & Rauscher, Inc. v. YKK (U.S.A.) Inc., 477 F. Supp. 2d 1147, 1155 (2007).

29. Genuine issues of material fact existed as to whether consumer used ear candle for its ordinary purpose, whether consumer relied on seller's skill and judgment, and whether seller had reason to know of consumer's reliance, precluding summary judgment and seller's cross-claim. Danaher v. Wild Oats Markets, Inc., 779 F. Supp. 2d 1198 (D. Kan. 2011).