April 5, 1986, Cynthia Rubin (plaintiff) went to Marshall Field's department store. While browsing, she began conversing with Julianna Reiner, a sales clerk in the cosmetics area, about methods for removing eye makeup. Reiner recommended that Rubin try Princess Marcella Borghese Instant Eye Make-Up Remover rather than use Vaseline as Rubin was accustomed to doing. Rubin asked if the product was safe. Reiner showed her the box which said "recommended for all skin types" and said, "If it wouldn't be safe for you, it wouldn't say this on the box." Relying on Reiner's representations, Rubin purchased the product.

When Rubin use the Eye Make-Up remover that evening, she experienced a skin reaction in which her eyelids and the skin around her eyes became taut and rough. Despite several washings her skin still felt stinging and burning. A visit to an ophthalmologist resulted in the diagnosis of contact dermatitis and an ointment prescription.

A few weeks later with continuing problems, Rubin visited a dermatologist, Dr. Katherine Wier, who prescribed a similar ointment. Dr. Wier also informed Ms. Rubin that the symptoms would probably continue for several months.

Ms. Rubin was unable to begin wearing eye makeup regularly until the summer of 1987 due to skin sensitivity.

Rubin filed suit for breach of implied warranty of fitness for a particular purpose against the seller, Marshall Fields, and the manufacturer, Princess Marcella Borghese, Inc., a subsidiary of Revlon Inc. The jury awarded Rubin damages and attorney fees; Marshall Field's appealed.

The implied warranty of fitness for a particular purpose is involved when the seller of the goods promises a buyer that the goods will be suitable for a use that the buyer has proposed.

The requirements for this warranty are as follows:

• the seller has skill or judgement in use of the goods
• the buyer is relying on that skill or judgment
• the seller knew or had reason to know of the buyer's reliance on the seller's skill or judgement
• the buyer proposes a particular purpose of the goods
• the seller makes a recommendation for the buyer's use and purpose

Implied warranty of fitness for a particular purpose differs from implied warranty of merchantability. Implied warranty of merchantability means that the goods are of sufficient quality that they are fit for ordinary purposes which may or may not include the purpose of the buyer. Implied warranty of fitness for a particular purpose means that the buyer has explained his purpose and the seller has essentially agreed that the goods meet the buyer's requirements and purpose.

The court reviewed the case and made the following preliminary determinations:

• Reiner was acting as an agent for the defendants when she sold the product to Rubin
• Dr. Wier, testifying for the plaintiff, said with medical certainty that the makeup remover caused the reaction
• Dr. Wier admitted under cross-examination that the detergent used in the makeup remover was also used in other products including baby shampoos and was fairly safe
• Dr. Wier said that the plaintiff's sensitive skin was a factor in the seriousness of the dermatitis
• Dr. Earl Brauer, VP of medical affairs for Revlon Research, testified that he tested the product returned by the plaintiff and determined that it contained nothing but the proper chemicals per the formula for the product
• Dr. Brauer also testified that the plaintiff was the first person to report a reaction with more than 50,000 units manufactured since 1978

The defendants argued that the judgement in the lower courts should be reversed since the plaintiff did not prove that the eye makeup remover was defective and that her reaction to the product was idiosyncratic.

The Uniform Commercial Code, III. Rev. Stat. 1985, ch. 26, para. 2-315 provides:

Therefore under the UCC the plaintiff needs to prove (1) a sale of goods and (2) before the sale was consummated, the seller had reason to know (a) a particular purpose for which the plaintiff bought the goods, and (b) that the plaintiff was relying on the seller's skill to select goods suitable for that purpose; and (3) the goods were in fact not suitable for that purpose.

In other words, the transaction involves a contract between buyer and seller in which the buyer is basing the purchase decision on the assurance of the seller that the goods in fact meet the buyer's requirements. The issue is not whether the goods are defective or sound. The issue is whether the seller misrepresented the applicability of the goods to the buyer's purpose.

In the case of Rubin v. Marshall Field & Co., the seller and agent, Reiner, provided an assurance to the buyer that the product met her requirements including the requirement of safety. Reiner had the opportunity to observe Rubin's skin type as well as to ask questions concerning her skin and any previous reactions to similar products.

Because the warranty provided by Reiner to Rubin was specific as to safety, the judgement was upheld and the finding of liability was affirmed.

I now understand why it was so difficult to get an opinion out of sales clerks at Home Depot when I was trying to design and fabricate a simple light stand for studio photography several months ago.

To me this is an open and shut case. It puts accountability for the representation of goods on the back of the seller where it belongs. It also requires that sellers of goods must learn enough about the goods they sell so that they can determine what kind of warranty as to fitness of purpose they can give.