## Facts

- Mark A. Abbate worked for Delaware Electric Signal and used ladders in the course of his job.
- Werner Co. manufactured the ladder at issue and distributed it through retailers, including Lowe’s Home Centers, Inc. (Lowe’s).
- Abbate’s employer purchased a Werner ladder from Lowe’s.
- The ladder was labeled as safe for users weighing up to 250 pounds; Abbate weighed about 180 pounds.
- Lowe’s made no representations to Abbate’s employer at the time of purchase about the ladder’s suitability for any specific task or purpose.
- On July 7, 2007, Abbate alleged that, during proper use, a leg brace on the ladder split and the ladder gave way, causing him to fall and suffer serious injuries.
- Abbate supported his claims with an engineer’s report indicating defects in the ladder’s design and/or construction.
- Abbate sued Werner (manufacturer) and Lowe’s (retailer). As to Lowe’s, Abbate asserted negligence and UCC Article 2 warranty claims: express warranty, implied warranty of merchantability, and implied warranty of fitness for a particular purpose.
- Lowe’s moved for summary judgment on all claims against it.

## Issues

1. Whether Lowe’s was entitled to summary judgment on Abbate’s negligence claim arising from the alleged sale of a defective ladder.
2. Whether Lowe’s was entitled to summary judgment on Abbate’s breach of express warranty claim where Lowe’s made no specific affirmations or promises about the ladder.
3. Whether Lowe’s was entitled to summary judgment on Abbate’s implied warranty of merchantability claim based on whether the ladder was fit for its ordinary purpose when sold.
4. Whether Lowe’s was entitled to summary judgment on Abbate’s implied warranty of fitness for a particular purpose claim absent evidence that Lowe’s knew of a particular purpose and that the buyer relied on Lowe’s judgment.

## Decision

- The Delaware Superior Court granted Lowe’s motion for summary judgment in part and denied it in part.
- The court granted summary judgment to Lowe’s on the breach of express warranty claim.
- The court granted summary judgment to Lowe’s on the implied warranty of fitness for a particular purpose claim.
- The court denied summary judgment to Lowe’s on the negligence claim.
- The court denied summary judgment to Lowe’s on the implied warranty of merchantability claim.

## Legal Principles

- Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law; the record is viewed in the light most favorable to the nonmoving party, and conclusory allegations are insufficient.
- A plaintiff resisting summary judgment must point to record evidence showing a genuine dispute on material facts; where the evidence permits more than one reasonable inference, the dispute is for the factfinder.
- An express warranty under UCC Article 2 requires an affirmation of fact, promise, or description made by the seller that becomes part of the basis of the bargain; absent evidence of such seller statements, the claim fails as a matter of law.
- The implied warranty of merchantability applies when the seller is a merchant with respect to goods of that kind and requires that the goods be fit for the ordinary purposes for which such goods are used; evidence of a failure during ordinary use, coupled with competent defect evidence, can create a triable issue.
- The implied warranty of fitness for a particular purpose requires proof that (i) the seller had reason to know the buyer’s particular (non-ordinary) purpose, and (ii) the buyer relied on the seller’s skill or judgment to select suitable goods; where the purchase is made without communicating a special purpose or reliance, the claim fails.
- In product-defect cases against a seller in the distribution chain, disputes about whether the product was defective and whether the defect caused the injury commonly present fact questions that may preclude summary judgment when supported by record evidence such as engineering analysis.

## Conclusion

The court removed Lowe’s from the case only on the express-warranty and particular-purpose warranty theories because there was no evidence Lowe’s made specific promises or knew of and was relied on for a special purpose at the time of sale. But the court allowed Abbate to proceed against Lowe’s on negligence and implied warranty of merchantability because the alleged failure during proper, ordinary use—supported by engineering evidence of a defect—created genuine disputes of material fact for trial.


Abbate v. Werner Co., 2012 WL 1413524 (2012)