## Facts

- Brack F. Barker shopped at a self-service grocery store operated by Allied Supermarket.
- Barker lifted a carton of bottled soft drinks from a display and attempted to place it into a store-provided cart.
- A bottle exploded during ordinary handling, and glass struck Barker’s right eye, causing a claimed 90% permanent loss of vision.
- Barker sued Allied (retailer) and Dr. Pepper Bottling Company of Oklahoma City (bottler), alleging negligence and breach of the UCC implied warranty of merchantability.
- Barker filed suit two years and one day after the injury.
- The trial court sustained defendants’ demurrers, concluding the petition was time-barred on its face.
- The intermediate appellate court allowed the implied-warranty claim to proceed only against the retailer.
- The Supreme Court of Oklahoma granted certiorari to review the limitations and warranty rulings.

## Issues

1. Whether a breach of implied warranty of merchantability claim is governed by the UCC limitations period rather than the two-year tort limitations period, so the petition is not time-barred on its face.
2. Whether a self-service selection of bottled beverages from a store shelf constitutes a “contract for sale” sufficient to trigger the UCC implied warranty of merchantability.
3. Whether privity is required for a consumer to assert an implied-warranty claim against the bottler/producer as well as the retailer in a food-and-drink case.

## Decision

- The Supreme Court of Oklahoma vacated the intermediate appellate decision.
- The court reversed the trial court’s judgment sustaining the demurrers.
- The court held the implied-warranty claim arose under the UCC and was not governed by the two-year tort limitations period on the face of the petition.
- The court held a self-service transaction can form a contract for sale based on the parties’ conduct, giving rise to an implied warranty of merchantability.
- The court held privity was not required for the consumer to pursue implied-warranty claims against both the retailer and the bottler in the context of food and drink.
- The case was remanded for further proceedings.

## Legal Principles

- An implied warranty of merchantability claim arising from a contract for sale is governed by the applicable UCC/contract limitations period, not the tort limitations period, even when the same event also supports negligence claims.
- Under UCC contract formation rules, a contract for sale may be shown by conduct; a self-service selection of goods with intent to purchase can constitute acceptance sufficient to create a present contract for sale.
- Under UCC § 2-314, an implied warranty of merchantability arises when a merchant sells goods of that kind; goods must be fit for their ordinary purposes.
- In food-and-drink cases, implied warranty protection may extend to the ultimate consumer without privity, permitting suit against both the immediate seller and the producer.

## Conclusion

The court allowed the consumer’s UCC implied-warranty claim to proceed, ruling that self-service shopping can create a contract for sale triggering merchantability warranties and that, for food and drink, the consumer may sue both retailer and bottler without privity, subject to proof at trial.


Barker v. Allied Supermarket, 596 P.2d 870 (Okla. 1979)