Statements in pesticide advertisement created express warranty

Law Reporter, May 2001

Statements in pesticide advertisement created express warranty

Triple E, Inc. v. Hendrix &Dail, Inc., - S.E.2d _, No. 3285,2001 WL 37994 (S.C. Ct. App. Jan. 16, 2001).

The South Carolina Court of Appeals held that statements made in a pesticide advertisement were sufficient to create an express warranty.

Here, a tobacco farmer purchased a pesticide-for the prevention of black shank disease-after seeing advertisements for it in a trade magazine. The advertisements stated that the pesticide had been tested and shown to provide consistent, season-long control of black shank disease. After the farmer applied the pesticide to his crop, the crop developed black shank disease.

The farmer filed suit against the pesticide manufacturer, alleging, among other claims, that it breached express warranties set out in the magazine advertisements. Plaintiff claimed he relied on the advertisements' claims when purchasing the pesticide and believed it would prevent black shank disease. A jury awarded plaintiff damages. Defendant appealed, arguing that the trial court erred in finding that a question of fact existed as to whether the advertisements constituted an express warranty.

Affirming, the appellate court noted that whether a seller's affirmation of fact or promise about a particular product creates an express warranty or is merely an opinion is ordinarily a question for the jury. Although there is no case in which a South Carolina court held that a magazine advertisement created an express warranty, the court found, the state high court has noted cases where recovery has been allowed on an express warranty theory where the purchaser of a product relied on representations in advertisements. Further, other jurisdictions have found that affirmations in advertisements can give rise to express warranties, the court said.

Here, plaintiff offered evidence that the assertions in the advertisements constituted an express warranty. Plaintiff and an expert both testified that the advertisements' claim of "proven control"-used to describe the pesticide's effectiveness-was an affirmative statement in the farming community meaning prevention. The court was also persuaded by plaintiff's testimony that he relied on the advertisements in purchasing the pesticide and the testimony of defendant's agent that a slogan in the advertisements-stating that crops can be insured through use of the pesticide-was meant to convey the message as stated. This is sufficient evidence to support the trial court's conclusions that the issue of the express warranty was one for the jury, the court concluded.

Plaintiff's Counsel

WE. Jenkinson III, Kingstree, S.C. Jennifer R- Kellahan, Kingstree, S.C.