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Lack of Privity Bars In Breach of Warrany Claims Under the WPLA

— May 8, 2015

The WPLA allows claimants to recover for breach of express or implied warranties: “(2) A product manufacturer is subject to strict liability to a claimant if the claimant’s harm was proximately caused by the fact that the product was not reasonably safe in construction or not reasonably safe because it did not conform to the manufacturer’s express warranty or to the implied warranties under Title 62A RCW.”
Such claims may be raised either in tort under the WPLA or in contract under the Uniform Commercial Code. Touchet Valley Grain Growers v. Opp & Seibold General Constr., 119 Wn.2d 334, 343 (Wash. 1992). However, lack of contractual privity bars recovery under such claims.

1. Breach of Warranty Generally Requires Contractual Privity
Under the WPLA, a claim for breach of warranty requires contractual privity. Thongchoom v. Graco Children’s Products, Inc., 71 P.3d 214, 219 (2003). However, the requirement of contractual privity is relaxed if the manufacturer makes express representations in advertising, or in some other form, to the claimant. Id. Additionally, the Supreme Court of Washington has held that “recovery for breach of an express warranty is contingent on a plaintiff’s knowledge of the representation.” Touchet Valley Grain Growers, Inc. v. Opp & Seibold Gen. Constr., Inc., 831 P.2d 724 (1992).

2. Breach of Express Warranty
In Thongchoom, the plaintiffs sued the manufacturer of a children’s walker under the WPLA alleging breach of express and implied warranty. Thongchoom, 71 P.3d at 216. There, the Court held that because the plaintiffs failed to establish privity or the existence of express warranties by the manufacturer, the plaintiffs could not recover for breach of express warranty under the WPLA.

3. Breach of Implied Warranty
Privity is also required for a breach of implied warranty claim. Furthermore, in order to recover under a claim for breach of implied warranty, the plaintiff must have purchased the product. Id at 219. In Thongchoom, the plaintiffs could not recover for breach of implied warranty because the product in question, a children’s walker, had been given to them as a gift. Id. Because the Thongchooms did not purchase the product, they could not recover for breach of implied warranty. Id.


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