In Massachusetts, product liability actions typically assert claims of both negligence and breach of warranty and normally contain a count under chapter 93A, Massachusetts's consumer protection statute. Under Massachusetts law, a breach of warranty essentially constitutes a per se violation of 93A, which is significant because it automatically entitles the plaintiff to attorney's fees and costs. However, Massachusetts courts have not addressed whether a non-negligent breach of warranty constitutes a c. 93A violation. This article argues that c. 93A does not apply to breaches of warranty unaccompanied by findings of negligence.
Product Liability Law in Massachusetts
When any goods are sold, the law in Massachusetts implies a warranty, or promise, by the manufacturer that the goods are fit for the ordinary purposes for which such goods are used. See Back v. Wickes Corp., 375 Mass. 633, 640 (1978). The manufacturer warrants that its product is fit for its ordinary purposes, which include both those uses that the manufacturer intended, and those uses and misuses that are reasonably foreseeable. See id. If a product is in a defective condition and thus unreasonably dangerous, then it is not fit for the product's ordinary purposes, and the merchant has breached the warranty. See id. In order to determine whether a product is unreasonably dangerous due to its design many factors are to be taken into consideration, including the gravity of the danger posed by the design, the likelihood that such danger would occur, whether the risks posed by the product could have been reduced by use of a reasonable alternative design, the financial cost of an improved design, any adverse consequences to the product and to the consumer that would result from an alternative design, and whether the proposed modification would cause undue interference with the performance of the product. Colter v. Barber-Greene Co., 403 Mass. 50, 57 (1988).
In other words, "a breach of warranty claim primarily concerns the nature of the product." Rose v. Highway Equipment Co., 86 Mass. App. Ct. 204, 205 (2014) (citing Colter, 403 Mass. at 61–62).
Product liability actions sounding in negligence allege that a manufacturer has breached its duty to exercise the degree of care which a reasonable and prudent manufacturer would have exercised under the same or similar circumstances. See Back, 375 Mass. at 643. As such, the inquiry focuses on the conduct of the manufacturer as opposed to the nature of the product.
Purpose of Chapter 93A
Chapter 93A was enacted by the Massachusetts legislature in 1967. "The purpose of G.L. c. 93A is to improve the commercial relationship between consumers and business persons and to encourage more equitable behavior in the marketplace. Chapter 93A imposes liability on persons seeking to profit from unfair practices." Poznik v. Mass. Med. Prof. Ins. Assn., 417 Mass. 48, 53 (1994), superseded on other grounds in Wheatley v. Mass. Insurers Insolvency Fund, 465 Mass. 297 (2013) (internal citation omitted).
Chapter 93A's pertinent language provides that it is unlawful to engage in "unfair or deceptive acts or practices in the conduct of any trade or commerce." M.G.L. c. 93A, § 2(a). Massachusetts's Supreme Judicial Court has held that in determining whether an act or practice is unfair or deceptive the "central inquiry is 'the effect of the conduct on the public.'" DiMarzo v. Am. Mut. Ins. Co., 389 Mass. 85, 96 (1983) (emphasis added) (quoting Schubach v. Household Fin. Corp., 375 Mass. 133, 137 (1978)).
Applicability of c. 93A to Product Liability Law
Subsection (c) of c. 93A, § 2 provides that "[t]he attorney general may make rules and regulations interpreting [what constitutes unfair or deceptive acts or practices in the conduct of any trade or discovery]." Pursuant to that language, the Massachusetts attorney general has promulgated a regulation making it "an unfair and deceptive act or practice to fail to perform or fulfill any promises or obligations arising under a warranty." 940 Code Mass. Regs. § 3.08(2).
Massachusetts courts have recognized that "[b]reaches of express and implied warranties constitute a virtual per se violation of [c. 93A, § 2]." Glyptal Inc. v. Englehard Corp., 801 F. Supp. 887, 899 (D. Mass 1992); see also Burnham v. Mark IV Homes, Inc., 387 Mass. 575, 581 (1982) ("Breach of an implied warranty of merchantability therefore constitutes an unfair and deceptive act or practice under G.L. c. 93A, § 2."). Nonetheless, Massachusetts courts have explicitly acknowledged that their rulings do not necessarily apply to breaches of warranty unaccompanied by findings of negligence. See Maillet v. ATF-Davidson Co., Inc., 407 Mass. 185, 190 (1990) ("The defendant argues, essentially, that in some circumstances, liability might be imposed under G.L. c. 93A for breach of warranty even if the defendant was not negligent. That issue is not before us. The jurors concluded that the defendant was negligent, and the judge agreed with that conclusion."). This holding at odds with the oft-stated principle that "unfair or deceptive conduct is best discerned 'from the circumstances of each case.'" Kattar v. Demoulas, 433 Mass. 1, 13–14 (2000) (quoting Commonwealth v. DeCotis, 366 Mass. 234, 242 (1974)).
Conclusion: Non-Negligent Breach of Warranty is not a 93A Violation
The purpose, language, and judicial interpretations of c. 93A demonstrate that a breach of warranty in a product liability case, unaccompanied by a finding that the manufacturer was negligent, is not a violation of c. 93A.
As discussed above, product liability actions in Massachusetts typically assert three claims: negligence, breach of warranty, and violation of c. 93A. The negligence claim focuses on the conduct of the defendant; the breach of warranty claim focuses on the condition of the product itself, irrespective of the defendant's conduct; and the 93A claim again focuses on whether the conduct of the defendant was unfair and deceptive. If a jury determines that the condition of a product was unreasonably dangerous and in breach of an implied warranty, but does not find that the conduct of the manufacturer fell below the applicable standard of care, there is no basis for finding a 93A violation because the "central inquiry [under c. 93A] is 'the effect of the [defendant's] conduct on the public.'" DiMarzo, 389 Mass. at 96 (emphasis added) (quoting Schubach, 375 Mass. at 137).
Chapter 93A is designed to prohibit and deter conduct; manufacturers whose conduct is not found to have contributed to a plaintiff's injuries should not be held liable under that statute. Massachusetts courts should hold that a breach of warranty, unaccompanied by a finding of negligence, cannot be a c. 93A violation.