According to Florida case law, a retailer does not have a duty to inspect for latent product defects:
K–Mart’s sole act, as indicated by the verdict form, was to sell the defective swing set to Stuhr. The swing set was furnished to K–Mart by the distributor, Chairs, and the manufacturer, C & S. We analogize this situation to the fact pattern noted in Houdaille, where a manufacturer became liable solely because a defective part was supplied to it by a supplier. The mere selling of a defective product by a retailer does not constitute “fault” under Houdaille.3 Rather, the retailer is “vicariously, constructively, derivatively or technically liable” in that instance.4
In addition to common-law indemnity, K–Mart sought contract right indemnity against Chairs, based on language in an *10 invoice comprising part of the sales documents. It provided:
Seller agrees to reimburse, indemnify, hold harmless and defend at its expense (if requested by K–Mart) the K–Mart Corporation and its subsidiary companies against any damage, loss, expense, claim, liability or penalty, including bodily injury, property damage, … arising out of any use, possession, consumption or sale of said goods;
General terms such as those used in the invoice do not generally encompass an intent to indemnify for consequences of a wrongful act of the person being indemnified.5 However, as discussed above, we do not think a retailer’s strict liability for sale of a defective product or breach of implied warranty by a retailer who does not manufacture the product, constitutes “wrongful conduct” in this context. Therefore, K–Mart should not be barred from pursuing its indemnity rights against Chairs based on a contract theory.
See: K-Mart Corp. v. Chairs, Inc. – 506 So.2d 7
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- Fort Lauderdale Product Liability Attorney
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