Handy v. Uniroyal, Inc.

• Decision Date: 26 May 1971
• Docket Number: Civ. A. No. 3667.
• Citation: 327 F. Supp. 596
• Parties: Charles L. HANDY and Bird-In-Hand Poultry Co., a corporation of the Commonwealth of Pennsylvania, Plaintiffs, v. UNIROYAL, INC., a New Jersey corporation, Defendant.
• Court: U.S. District Court — District of Delaware

327 F. Supp. 596

Charles L. HANDY and Bird-In-Hand Poultry Co., a corporation of the Commonwealth of Pennsylvania, Plaintiffs, v. UNIROYAL, INC., a New Jersey corporation, Defendant.

Civ. A. No. 3667.

United States District Court, D. Delaware.

May 26, 1971.

William F. Taylor and Jack B. Jacobs, of Young, Conaway, Stargatt & Taylor, Wilmington, Del., for plaintiffs.

Howard L. Williams and Jay Paul James, of Morris, James, Hitchens & Williams, Wilmington, Del., for defendant.

OPINION

LATCHUM, District Judge.

This is a products liability suit brought by Charles L. Handy ("Handy"), a citizen of Delaware, and his employer, the Bird-In-Hand Poultry Co. ("Bird-In-Hand"), a Pennsylvania corporation, against Uniroyal, Inc. ("Uniroyal"), a New Jersey corporation.¹ The case is presently before the Court on the defendant's motion for partial summary judgment under Rule 56 (b), F.R.Civ.P.

The relevant undisputed facts may be summarized as follows: On September 28, 1966, Bird-In-Hand purchased a new 10.00-20 PR Fleet T Special U. S. Royal Tire, manufactured by Uniroyal, from the Trail Mobile division of Pullman, Inc. in Lancaster, Pennsylvania. At that time the tire was mounted on one of Bird-In-Hand's trailers. Shortly thereafter the tire was taken off and placed in storage for several months. On May 4, 1967 it was removed from storage and mounted on the front end of one of Bird-In-Hand's truck tractors by an employee of the Leaman Tire Company of Mount Joy, Pennsylvania.

On March 5, 1968 Handy drove the tractor from Selbyville, Delaware to Bird-In-Hand, Pennsylvania. On the return trip to Selbyville, about one mile north of St. Georges, Delaware on Route 13, the tractor swerved off of the road and collided with two parked trucks, resulting in extensive property damage to the three vehicles and personal injury to Handy. An examination of the tire in question revealed that it had blown out either before or during the collision.

In their suit, the plaintiffs contend that the tire blew out prior to the collision and was, in fact, the sole proximate cause of the accident. The plaintiffs' claims are grounded upon (a) breach of implied warranty, (b) negligence in the manufacture, handling and inspection of the tire, with res ipsa loquitur applying, and (c) strict liability in tort. The defendant has moved for partial summary judgment dismissing Handy's breach of implied warranty claim, denying the application of the doctrine of res ipsa loquitur to the case, and dismissing both plaintiffs' claims founded upon strict liability in tort.

First, the defendant contends that under the law of Pennsylvania applicable to the warranty claim, 12A P.S.Pa. § 2-318, Handy, being an employee of the purchaser of the tire and not a member of the purchaser's immediate family, has no cause of action as a matter of law, because he is not in privity with the manufacturer, Uniroyal. Second, the defendant argues that its lack of exclusive control of the tire after it was manufactured, plus several other factors, preclude the application of the doctrine of res ipsa loquitur to the negligence claims in this case. Finally, the defendant contends that summary judgment should be granted in its favor on the tort claims based upon strict liability, because the law of Delaware, applicable to such claims, does not recognize the doctrine of strict liability in tort for defective products. A hearing on the motion was held March 29, 1971.

Law To Be Applied

The plaintiffs maintain that the law of Delaware, not Pennsylvania, applies to the claims for breach of implied warranty because the claims sound in tort rather than contract. The Court, however, must reject the plaintiffs' contention.

Under Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) this Court in a diversity case must apply the conflict of law rules of Delaware. Both the Third Circuit Court of Appeals and this Court have held that a claim for breach of warranty is, under Delaware law, governed by the law of the place where the sale occurs. Prashker v. Beech Aircraft Corp., 258 F.2d 602, 607, 76 A.L. R.2d 78, 89 (C.A. 3, 1958), cert. den. 358 U.S. 910, 79 S.Ct. 236, 3 L.Ed.2d 230 (1958); Quandt v. Beech Aircraft Corp., 317 F.Supp. 1009, 1012 (D.Del. 1970). In Ciociola v. Delaware Coca-Cola Bottling Co., 3 Storey 477, 172 A. 2d 252, 256-257 (Del.Supr.1961) the Delaware Supreme Court rejected the contention that breach of warranty claims should be governed by tort rather than contract rules of law. It is therefore obvious that under Delaware law breach of waranty claims are considered to be contract rather than tort for conflict of law purposes.²

Actions for breach of contract, under Delaware law, are governed by the law of the place of performance. Canadian Industrial Alcohol Co. v. Nelson, 8 W.W.Harr. 26, 188 A. 39, 53 (Del.Supr.1936). Breach of a sales warranty occurs at the time of sale. Dietrich v. Badders, 4 Boyce 499, 90 A. 47, 49 (Del.Super.1913). Since it is undisputed that the sale of the tire took place in Pennsylvania, the breach of implied warranty claims are governed by the law of that state.

As to the tort claims it is undisputed that Delaware applies the law of the place of the tort, lex loci delicti. Friday v. Smoot, 8 Storey 488, 211 A.2d 594, 595 (Del.Supr.1965); Lumb v. Cooper, 266 A.2d 196, 197 (Del.Super. 1970); Hempstead v. General Fire Extinguisher Corp., 269 F.Supp. 109, 111 (D.Del.1967); Quandt v. Beech Aircraft Corp., supra, 317 F.Supp. at 1013. In Gorman v. Murphy Diesel Co., 3 Terry 149, 29 A.2d 145, 146 (Del.Super.1942), and in Pack v. Beech Aircraft Corp., 11 Terry 413, 132 A.2d 54, 56, 67 A.L.R.2d 207, 211 (Del.Supr.1957) "the place of the tort" for choice of law purposes was interpreted to mean the place the injury occurs. Therefore, since it is undisputed that the injuries complained of occurred in this state, Delaware tort law governs the claims founded upon tort, regardless of where any alleged negligence or defective manufacture may have occurred.

Warranty Claim—Lack of Privity

The defendant contends that under Section 2-318 of the Uniform Commercial Code ("U.C.C."), adopted in Pennsylvania, 12A P.S. Pa. § 2-318, Handy's breach of implied warranty claim is barred by lack of horizontal privity. Section 2-318 of the U.C.C. reads as follows:

"A seller's warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty."³ 12A P.S.Pa. § 2-318.

In Hochgertel v. Canada Dry Corp., 409 Pa. 610, 187 A.2d 575 (1963) the Pennsylvania Supreme Court in construing Section 2-318 of the U.C.C., 12A P. S.Pa. § 2-318, held that an employee of a product's purchaser is not within the protection of the U.C.C.'s implied warranties, under Section 2-318, and thus his claim is barred by lack of privity. Later, Hochgertel was modified slightly by Yentzer v. Taylor Wine Co., 414 Pa. 272, 199 A.2d 463 (1964) to permit an employee, who himself is the actual purchaser of the product in question, to sue for breach of an implied warranty. See also Carney v. Barnett, 278 F.Supp. 572, 576 (E.D.Pa.1967).

In Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848, 852 (1968) the Pennsylvania Supreme Court held that privity was no longer necessary in breach of warranty suits against remote manufacturers. However, in the Kassab opinion the Court was careful to point out that its abolition of "vertical privity" in that case in no way disturbed the holding of Hochgertel or the requirement of "horizontal privity." See footnote 8, 246 A. 2d at 855 and discussion in text, pp. 855-856.

In Tucker v. Capitol Machine, Inc., 307 F.Supp. 291 (M.D.Pa.1969) the Court was presented with virtually the identical question raised in the instant suit. While the Court in Tucker denied a motion for summary judgment on the plaintiff's breach of warranty claim on the ground that the Court was unable to determine on the record before it whether Pennsylvania or Indiana law governed, the Court examined Section 2-318, Hochgertel, and Kassab at length. After a detailed discussion the Court in Tucker concluded that the employee plaintiff, injured by a machine purchased by his employer, could not maintain any action for breach of implied warranty, absent privity of contract, under Section 2-318, as interpreted by Hochgertel. The Court found the holding in Hochgertel to be unimpaired by Kassab. 307 F.Supp. at 293-294; see also Dyson v. General Motors Corp., 298 F.Supp. 1064, 1066 (E.D.Pa.1969).

Therefore, the Court holds that under Pennsylvania law, Handy, as an employee of Bird-In-Hand who did not purchase the tire in question,⁴ may not, as a matter of law, maintain an action for breach of implied warranty in view of his lack of contractual privity with Uniroyal. Accordingly, the defendant's motion for partial summary judgment dismissing Handy's claim for breach of implied warranty will be granted.

Application of Res Ipsa Loquitur⁵

The defendant has moved for partial summary judgment dismissing paragraph 19 of the plaintiffs' complaint which purports to invoke the doctrine of res ipsa loquitur.⁶ The plaintiffs vigorously oppose the motion.

Unfortunately during the course of their arguments the parties have confused three separate propositions concerning circumstantial evidence inferences. Perhaps the primary reason for this confusion is the vague, imprecise language used in paragraph 19. Accepting the first and most logical interpretation, the paragraph appears to allege that the tire in question blew out and that the occurrence of this alleged blowout entitles the plaintiffs to utilize the doctrine of res ipsa loquitur to establish by inference⁷ that Uniroyal was negligent in the manufacture, handling, or inspection of the tire. The proposition thus...