Opinion
C.A. No. 04C-02-026 JTV.
Submitted: June 6, 2005.
Decided: November 1, 2005.
Upon Consideration of Defendant Wyoming Millwork Company's Motion For Summary Judgment GRANTED.
Scott E. Chambers, Esq., Schmittinger Rodriguez, Dover, Delaware. Attorney for Plaintiff.
Susan List, Esq., Tybout, Redfearn Pell, Wilmington, Delaware. Attorney for Seewald Woodworks, Inc.
Michael K. Tighe, Esq., Tighe, Cottrell Logan, Wilmington, Delaware. Attorney for Defendant Wyoming Millwork Company.
Daniel P. Bennett, Esq., Heckler Frabizzio, Wilmington, Delaware. Attorney for MW Manufacturers, Inc.
OPINION
The plaintiff, Vicki Miller, was injured while working as an employee of Willey Farms, Inc. ("Willey Farms") on March 29, 2002. A window that had been propped open with a piece of wood fell shut and struck her in the back of the neck as she was reaching through it. The window had recently been installed by Seewald Woodworks, Inc. ("Seewald") as part of renovations of Willey Farms. It was a window through which the employees, while stationed on the inside of Willey Farms building, would transact business with customers who were outside the building in Willey Farms' garden section. The plaintiff has filed suit against the following defendants: MW Manufacturers Inc. ("MW"), the manufacturer of the window; Seewald, the installer of the window; and Wyoming Millwork Company. ("Wyoming Millwork"), the seller of the window. Defendant Wyoming Millwork moves for summary judgment. The plaintiff opposes the motion and the remaining two defendants have joined the plaintiff's opposition.
STANDARD OF REVIEW
Summary judgment should be rendered if the record shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The facts must be viewed in the light most favorable to the non-moving party. Summary judgment may not be granted if the record indicates that a material fact is in dispute, or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law to the circumstances. However, when the facts permit a reasonable person to draw but one inference, the question becomes one for decision as a matter of law.
Superior Court Civil Rule 56(c).
Guy v. Judicial Nominating Comm'n, 659 A.2d 777, 780 (Del.Super.Ct. 1995); Figgs v. Bellevue Holding Co., 652 A.2d 1084, 1087 (Del.Super.Ct. 1994).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
CONTENTIONS OF THE PARTIES
The plaintiff contends that Wyoming Millwork was negligent in that it knew or should have known that the window was not safe for its normal use, failed to warn the plaintiff that the window was not safe for its normal use; failed to inspect the window, and failed to take proper measures to ensure that the window was safe for its intended use. The plaintiff also alleges that Wyoming Millwork breached implied and express warranties. The plaintiff also alleges that Wyoming Millwork was negligent in that after the window was installed, Wyoming Millwork gave Seewald advice as to how to adjust the window, advice which was unsuccessful. The plaintiff also alleges that Wyoming Millwork was negligent in that Seewald asked Wyoming Millwork to send a MW representative to inspect the window after installed, but Wyoming Millwork did not do so.Wyoming Millwork contends that the sealed container statute is a defense to the plaintiff's claim. It also contends that the record will not support a finding that advice it allegedly gave concerning adjustment of the window after it was installed was negligent or that its alleged failure to send a MW representative was negligence.
18 Del. C. § 7001(b). It shall be a defense to an action against a seller of a product for property damage or personal injury allegedly caused by the defective design or manufacture of a product if the seller establishes that:
(1) The product was acquired and then sold or leased by the seller in a sealed container and in unaltered form;
(2) The seller had no knowledge of the defect;
(3) In the performance of the duties the seller performed or while the product was in the seller's possession could not have discovered the defect while exercising reasonable care;
(4) The seller did not manufacturer, produce, design or designate the specifications for the product, which conduct was the proximate and substantial cause of the claimant's injury;
(5) The seller did not alter, modify, assemble or mishandle the product while in the seller's possession in a manner which was the proximate and substantial cause of the claimant's injury; and
(6) The seller had not received notice of the defect from purchasers of similar products.
The sealed container defense is not available if:
(3) The seller made any express warranties, the breach of which were the proximate and substantial cause of the claimant's injury.
The plaintiff contends that summary judgment cannot be granted on the sealed container defense because there is a factual dispute as to whether Wyoming Millwork designed or designated the specifications for the window and whether Wyoming Millwork made express warranties which were the proximate and substantial cause of the plaintiff's injury. She also contends that questions of fact exist on the issue of Wyoming Millwork's alleged post-installation advice for adjusting the window and Wyoming Millwork's alleged failure to send out a MW representative.
DISCUSSION
The renovations performed by Seewald at Willey Farms included the installation of a number of new windows. It bought the window in question from Wyoming Millwork. Before buying the window, Richard B. Seewald, owner of Seewald, had asked Jeffery G. Iverson of Wyoming Millwork to look at the windows that were already at Willey Farms so that Wyoming Millwork might consider what type of window Mr. Seewald was interested in and make a recommendation as to what type of window Mr. Seewald should buy. Mr. Iverson did so, and recommended either a Marvin or MW window. Mr. Seewald decided on the MW.
The window was sold in a sealed container, meaning that it was wrapped or packaged in the normal manner in which such windows were sold. I find that the packaging of the window satisfies the statutory definition of "sealed container." Mr. Seewald removed the container at the work site at Willey Farms. The window came with instructions which were available to Mr. Seewald to the extent he chose to examine them.
18 Del. C. § 7001(a)(3) provides: "Sealed container" means a box, container, package, wrapping, encasement or housing of any nature that covers a product so that it would be unreasonable to expect a seller to detect or discover the existence of a dangerous or defective condition in the product. A product shall be deemed to be in a sealed container if the product, by its nature and design, is encased or sold in any other manner making it unreasonable to expect a seller to detect or discover the existence of a dangerous or defective condition."
Wyoming Millwork was not asked for advice as to how the window should be installed and did not provide advice.
There is nothing in the record to support a finding that Wyoming Millwork designed or designated the specifications for the window in any way that was a proximate or substantial cause of the plaintiff's injury. Wyoming Millwork simply took into account the type and size of window desired by Mr. Seewald and made a recommendation from what was commercially available. Wyoming Millwork had no involvement at all in the design, designation or specifications of the window as they related to the mechanism by which the window would be opened or closed or stay up when opened. Nor did it alter or modify the window in any way.
There is no evidence in the record that Wyoming Millwork made any express warranties. Wyoming Millwork was never informed that the window was intended to be used as a service window. It had no knowledge that the window was going to be used for anything other than as a normal window.
After considering all of the terms of the "sealed container defense," I conclude that the "sealed container defense" is a complete defense to the plaintiff's claims that the window was not safe for its normal use, that Wyoming Millwork failed to warn the plaintiff that the window was not safe for its normal use; that Wyoming Millwork failed to inspect the window, that Wyoming Millwork failed to take proper measures to ensure that the window was safe for its intended use; or that Wyoming Millwork breached implied and express warranties.
After Mr. Seewald installed the window, it became apparent to the Willey Farms employees and was brought to his attention that the window would not stay up. Mr. Seewald called Mr. Iverson by telephone and explained the problem. Mr. Iverson explained that there was a way to adjust the window and informed Mr. Seewald how to do the adjustment. However, despite the fact that Mr. Seewald's attempted adjustment was unsuccessful, I conclude that the record is insufficient to support a finding that the advice on adjustment, given by Mr. Iverson over the telephone, was incorrect or negligent. There is no testimony from Mr. Seewald or any other witness that criticizes the advice given in any way or identifies any error in what Mr. Iverson said to Mr. Seewald about adjusting the window. The mere fact alone that Mr. Seewald's adjustment was unsuccessful does not support a finding of negligence on the part of Wyoming Millwork.
Finally, the plaintiff contends that Mr. Seewald asked Wyoming Millwork to send out a representative, but Wyoming Millwork failed to do so. The record indicates, however, that Wyoming Millwork did in fact contact a MW representative who did in fact contact Mr. Seewald concerning the problem. Unfortunately, the MW representative did not make contact with Mr. Seewald until after the accident occurred. I find no basis for liability against Wyoming Millwork on this issue.
Wyoming Millwork's motion for summary judgment is granted.