Not too long ago, Mrs. Brown, a flooring customer, purchased a new tile floor from her local flooring dealer. The product, which was installed by the dealer, was manufactured by one of the larger corporations engaged in that business. The product was widely advertised as one that would retain its appearance for a long period of time with little or no care.

Sometime after installation, the tile, although apparently retaining its shine, began to yellow. Naturally, the homeowner complained to the retailer who, in turn, registered the claim with his distributor. The distributor forwarded the complaint to the mill who sent a rep to inspect the complaint.

The inspector, apparently determining the discoloration was caused by some external source, turned down the complaint as not a manufacturing defect. This finding and determination was relayed back to the dealer and eventually to the consumer. Understandably, she did not agree with the outcome, claiming that only defective tile would yellow and discolor, so she sued the retailer.

The dealer did not actually bring the distributor or mill directly into the case as he might have under the law. However, he did ask for help, which they provided. This help was mainly in the form of the manufacturer’s representative who had inspected the floor. He appeared at the trial as an expert for the flooring retailer.

As in any other civil trial, the burden is first on the consumer, in this case, Mrs. Brown, to prove her case. Since the defendant, the dealer, had admitted the tile had, in fact, turned yellow, she did not have to prove anything. She did, however, testify that even though she had maintained the floor exactly as the manufacturer’s brochure had advised, the discoloration began to occur soon after installation and appeared throughout the flooring.

It was not now up to the retailer to prove the discoloration was locally caused and was not a defect. This is where the expert came in. An expert, as we have noted in the past, is generally permitted to give an opinion in the area of his expertise. The expert told the court the yellowing condition was caused by the tracking of asphalt pigment from the driveway into the kitchen.

He also said it could have been caused by wax possibly applied by the plaintiff. It was now up to the judge to decide which story was more believable. On the one hand, there was the consumer who claimed that although she had bought a first quality floor and maintained it as per the instructions, it had turned yellow.

On the other hand, the claim and expert pointed out that any yellowing was the result of external forces and not due to any defect. “The opinion of the manufacturer,” the judge stated, “that the yellowing condition was caused by tracking asphalt pigment from the driveway into the kitchen is not persuasive.

The yellowing is uniform throughout and not tracked, as would be the case if asphalt had been brought in by pedestrian traffic.” The judge continued, “The only other cause was the possibility that the plaintiff had applied a wax, contrary to instruction. On this item, the weight of the evidence supports that wax was not applied.

The buyer so testified. “A product such as tile which discolors shortly after installation is not of fair average quality that would pass without objective in the trade as required by the warranty of merchantability, nor is it fit for the purpose purchased,” the judge concluded. “It must not only be durable but also hold its pattern and color for a reasonable length of time consistent with the degree of quality selected.”

The judgment was for Mrs. Brown who received her money back on her flooring purchase.