## Facts

- Elizabeth A. Wilke and Mark Wilke bought a used 2002 Ford Econoline cargo van from Woodhouse Ford, Inc., a used-vehicle dealer.
- The written purchase agreement conspicuously sold the van “AS IS” and “WITHOUT ANY WARRANTY,” and expressly disclaimed all express and implied warranties, including merchantability and fitness.
- No evidence showed the dealer made representations about the van’s condition or quality.
- After driving to a friend’s home, Mark parked the van in the driveway.
- Shortly thereafter, the Wilkes’ three-year-old daughter allegedly moved the gearshift out of “park,” and the van rolled over Elizabeth’s foot and leg, causing her to fall and hit her head.
- The Wilkes testified the key was out of the ignition when the gearshift was moved and the van began to roll.
- A later inspection led the Wilkes to allege a defect in the transmission/gearshift mechanism allowing shifting out of “park” without the key in the ignition (and allegedly without depressing the brake).
- The Wilkes sued on alternative theories: (1) negligence for failure to reasonably inspect for safety defects before sale and (2) breach of the implied warranty of merchantability.
- The district court granted summary judgment to Woodhouse on both claims, and the Wilkes appealed.

## Issues

1. Whether the purchase agreement’s “as is” clause and warranty disclaimers effectively excluded the implied warranty of merchantability under Nebraska’s U.C.C.
2. Whether a used-car dealer owes a tort duty to reasonably inspect for patent safety defects before sale despite an effective warranty disclaimer, and whether disputed facts on breach and causation precluded summary judgment.

## Decision

- The court affirmed summary judgment for Woodhouse on the implied warranty of merchantability claim.
- The court held the disclaimer was conspicuous and expressly referenced merchantability, satisfying U.C.C. requirements for excluding implied warranties.
- The court reversed summary judgment on the negligence claim and remanded.
- The court held a used-vehicle dealer has a duty of reasonable care to inspect for patent safety defects before sale, and that duty is not eliminated by an “as is” warranty disclaimer.
- The court found the record contained genuine disputes of material fact regarding whether a reasonable pre-sale inspection would have revealed a gearshift safety defect and whether any defect caused Elizabeth Wilke’s injuries.

## Legal Principles

- An implied warranty of merchantability may be excluded by a conspicuous written disclaimer that specifically references “merchantability,” including by an “as is” sale meeting U.C.C. requirements.
- Contractual allocation of risk through warranty disclaimers does not necessarily eliminate an independent common-law duty of reasonable care in tort.
- Used-car dealers owe a duty to reasonably inspect vehicles for patent safety defects before sale; that duty cannot be waived by an “as is” clause.
- Summary judgment is improper when evidence permits reasonable disagreement on material facts concerning breach of duty and proximate causation.

## Conclusion

The Nebraska Supreme Court enforced a conspicuous “as is” disclaimer to bar an implied warranty of merchantability claim, but held that a used-car dealer still must exercise reasonable care to inspect for patent safety defects and that disputed facts required a negligence claim to proceed.


Wilke v. Woodhouse Ford, Inc., 278 Neb. 800, 774 N.W.2d 370 (Neb. 2009)