Legal Memorandum: Lack of Privity Defense in RI

Issue: In Rhode Island, can a defendant manufacturer of a defective product that sold through a distributor raise a lack of privity defense to warranty and liability claims?

Where a duty is created solely by contract, any cause of action arising out the violation of that duty is limited to the parties to the contract and those in privity with them.  Buszta v. Souther, 102 R.I. 609, 232 A.2d 396, 398-99 (1967) (citing Swenson v. Nairn, 30 A.2d 897 (N.J. Super. Ct. 1943)).   When, however, the plaintiff is injured by an act or omission constituting a breach of contract that also is a violation of a legal right or duty owed to the plaintiff independently or concurrently with the contract, no privity is required “to sustain an action in tort.”  Id., 232 A.2d at 399 (emphasis added).  In other words, a contract claim based on the same facts and occurrences may be barred, but a tort claim would not.

In Temple Sinai-Suburban Reform Temple v. Richmond, 112 R.I. 234, 308 A.2d 508 (1973), the Rhode Island Supreme Court reviewed the history of the privity doctrine and summarized its demise in cases in which defendants attempted to insulate themselves from tort liability that was based on some contractual obligation.  The Richmond court noted that as early as 1929, it was recognized that because “the doctrine of privity was born of judicial fiat, it could be terminated in the same fashion.”  Id., 308 A.2d at 510 (citing Minutilla v. Providence Ice Cream Co., 50 R.I. 43, 144 A. 884 (1929)).  After reviewing more […]