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Hervey v. Leisure World Corp.

by Joseph William Singer
1

Superior Court of Delaware.

2

Gary HERVEY and Kimberly Hervey
v.
LEISURE WORLD CORP.
v.
M & M DISTRIBUTING COMPANY, INC.
v.
BRILO CORPORATION.

3

C.A. No. 90C-JL-14.
Assigned: Feb. 20, 1991.
Decided: June 18, 1991.

4

Andrew G. Ahern, III, Joseph W. Benson, P.A., Wilmington, for plaintiffs.

5

Richard K. Herrmann, Scott R. Harrison, Bayard, Handelman & Murdock, P.A., Wilmington, for defendant.

6

OPINION AND ORDER

7

BALICK, Judge.

8

Plaintiffs seek damages for serious personal injury sustained by Gary Hervey when he tried to dive into the swimming pool at plaintiffs' house in Glenmore, Pennsylvania on July 4, 1988. M & M Distributing Co., Inc., doing business as Kiddie World, sold the allegedly defective component parts of the above-ground swimming pool to plaintiffs in Delaware on or about July 3, 1983. Plaintiffs allege three theories of recovery: (1) negligence, (2) breach of warranty, and (3) strict liability. M & M seeks partial summary judgment as to theories (2) and (3). Plaintiffs concede that their claim for breach of warranty is barred by the statute of limitations.

9

M & M contends that plaintiffs' claim for strict liability in tort fails to state a claim under Delaware law. Cline v. Prowler Industries of Md., Inc., Del.Supr., 418 A.2d 968 (1980). Plaintiffs counter that the claim is governed by Pennsylvania law, which recognizes strict liability in tort for injuries caused by defective products, because the claim sounds in tort, and the Delaware choice of law rule is that the law of the place of injury, in this case Pennsylvania, governs. Amoroso v. Joy Mfg. Co., Del.Super., 531 A.2d 619 (1987).

10

The characterization of plaintiffs' claim for the purpose of determining the choice of law rule is governed by the law of the forum. Restatement, Second, Conflict of Laws § 7. The premise of plaintiffs' position, namely, that their claim sounds in tort, is inconsistent with Cline. Cline says as follows:

11

The fallacy of this supposition [that strict liability is based on tort law], however, is that although the implied warranties we here consider may have been tortious in nature in the distant past, subsequent developments in the law have inextricably tied them to sales contracts.

12

418 A.2d at 975.

13

The U.C.C.'s all inclusive attitude concerning the legal concept of “commercial transaction”, and its manifest attempts to provide remedies for personal injury to the consumer, all suggest that a hybridization of tort and contract concepts has occurred by virtue of the provisions of the U.C.C.

14

418 A.2d at 976.

15

Thus, a claim for personal injury resulting from the sale of allegedly defective goods is governed by the UCC.

16

The UCC contains a choice of law rule: In the absence of agreement to the contrary, Delaware's UCC “applies to transactions bearing an appropriate relation to this State.” 6 Del.C. § 1-105(1). A court must follow a statutory directive of its own state on choice of law. Restatement, Second, Conflict of Laws § 6(1) comment a.

17

The transaction on which plaintiffs' claims are based unquestionably bears an appropriate relation to Delaware. Hawkland UCC Series § 1-105:04. The transaction between the parties in this case, including delivery, occurred in Delaware. Cf. Howard J. Donnelly v. Kirkwood Fitness & Racquetball Clubs, Inc., et al.,Del.Super., C.A. No. 83C-JL-51, Herrmann, C.J. (retired) (Aug. 21, 1986); Restatement, Second, Conflict of Laws § 191 comment c. Thus, defendant is entitled to summary judgment insofar as plaintiffs' claim is based on strict liability.

18

This holding is not necessarily inconsistent with Amoroso. Amoroso holds that the claim of a person who is injured in Delaware as a result of allegedly defective goods purchased in another state is governed by Delaware law. Although the court's reasoning was based on the choice of law rule for torts, it may be that use of the UCC's choice of law rule would lead to the same result. Anderson's UCC § 1-105:14. In any event, the court's analysis in Cline is inconsistent with a claim of strict liability in tort for personal injury based on a sale of allegedly defective goods in Delaware.

19

For these reasons, it is ORDERED that the motion of M & M Distributing Company, Inc. for summary judgment is GRANTED as to plaintiffs' claims of breach of warranty and strict liability.

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June 02, 2014

"Hervey v. Leisure World Corp."

Hervey v. Leisure World Corp.

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Joseph William Singer

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