That limitation existed regardless of whether the action was founded upon tort or contract. Nacci v. Volks-wagenof America, Inc., 325 A.2d 617 (Del.Super. 1974); Ciociola v. Delaware CocaCola Bottling Company, 53 Del. 477, 172 A.2d 252 (1961). The Delaware Supreme Court refused to follow the then rapidly developing trend by imposing absolute or strict liability upon a manufacturer for injuries caused by defects in its product holding that such a change in the law must come from the legislature.

To make a negligent manufacture claim under Delaware law, a plaintiff must show that the defendant is responsible for the manufacture of the defective product. See Nacci v. Volkswagen of Am., 325 A.2d 617, 619-20 (Del. Super. Ct. 1974) ("[A] manufacturer may be liable to those whom he should expect to be endangered by the probable use of the product."

That examination, however, did not relate to this issue.Greiner v. Volkswagenwerk Aktiengeselleschaft (3d Cir. 1976) 540 F.2d 85; Sell v. Volkswagen (6th Cir. 1974) 505 F.2d 953 (defect in suspension system); Green v. Volkswagen (6th Cir. 1973) 485 F.2d 430; Hardy v. Volkswagen (D.C.Pa. 1975) 65 F.R.D. 359; Volkswagen v. Young (1974) 272 Md. 201, 321 A.2d 737; Nacci v. Volkswagen (Del.Super. 1974) 325 A.2d 617; Seattle-First Nat. Bank v. Volkswagen (1974) 11 Wn. App. 800, 525 P.2d 286; Bendorf v. Volkswagen (1975) 88 N.M. 355, 540 P.2d 835; Volkswagenwerk Aktiengeselleschaft v. Merritt (Ark. 1976) 531 S.W.2d 938; McMullen v. Volkswagen (1976) 274 Or. 83, 545 P.2d 117. In addition to these circumstances, which were largely outside the actual testimony at the contempt hearing, the District Court singled out certain parts of the testimony of Ceresney and Heise, which it found to be "evasive" and "contradictory" and which justified its finding that the two had "lied" and which supported its finding that the defendants had failed to convince it that additional tests and information did not exist.

For instance, states differently define "merchantability," and differently interpret whether an alleged defect meets that threshold.CompareNacci v. Volkswagen of Am., Inc., 325 A.2d 617, 620 (Del. Super. Ct. 1974) (under Delaware law merchantability standard is whether an ordinary manufacturer would pursue different design), withBASF Corp. v. Sublime Restorations, Inc., 880 F. Supp. 2d 205, 217 (D. Mass. 2012) (under Massachusetts law, merchantability is understood as the reasonable expectations of an ordinary user or purchaser). Additionally, some proposed class states define implied warranty as a contract claim whereas others recognize it as a tort.

Delaware asks whether "the design has created a risk of harm which is so probable that an ordinarily prudent person, acting as a manufacturer, would pursue a different available design which would substantially lessen the probability of harm." Nacci v. Volkswagen of Am., Inc., 325 A.2d 617, 620 (Del. Super. 1974). In Vermont, the implied warranty of merchantability "is primarily directed at the operative essentials of a product."

"Alternative B" of Uniform Commercial Code ("UCC") Section 2-318 has been interpreted to permit individuals to sue a manufacturer directly for breach of warranty even when they did not purchase the goods directly from the manufacturer, nor did they consume or use the goods at issue, but were nonetheless directly affected by the goods and suffered personal injury as a result. See Nacci v. Volkswagen of Am., Inc., 325 A.2d 617, 619-20 (Del. Super. Ct. 1974) (a child who was physically injured when the bicycle she was riding collided with an automobile manufactured and distributed by Volkswagen was held to be within the class of persons to whom the Volkswagen's warranty extended under § 2-318 of the Delaware Code (Alternative B of Section 2-318 of the UCC)); Wasik v. Borg, 423 F.2d 44, 48-49 (CA2 Vt. 1970) (affirming a lower court's decision to allow a plaintiff who was physically injured when his car was rear-ended, allegedly as the result of a dangerous defect in design or manufacture that caused the other driver's automobile to suddenly accelerate, to bring a claim for breach of warranty under § 2-318 of the Vermont Code, which was "substantially identical" to Alternative B of the UCC).

Colorado and Delaware are at issue, but Honda has relied solely on cases that involve personal injuries in products liability suits. SeeCamacho v. Honda Motor Co., 701 P.2d 628, 629-30 (Colo.Ct.App.1985); Nacci v. Volkswagen of America, Inc., 325 A.2d 617, 618 (Del.Super.Ct.1974).

* Each relevant state's definition of merchantability, and whether the alleged defect meets that threshold. Compare Nacci v. Volkswagen of Am., Inc., 325 A.2d 617, 620 (Del.Super.Ct. 1974) (under Delaware law merchantability standard is whether ordinary manufacturer would pursue different design), with Venezia v. Miller Brewing Co., 626 F.2d 188, 190 (1st Cir. 1980) (under Massachusetts law merchantability examines reasonable consumer expectations). * The nature of an implied warranty claim under the relevant state's law, i.e., whether the remedy lies in tort or contract. Compare Parillo v. Giroux Co., 426 A.2d 1313, 1317 (R.I. 1981) (contract remedy), with First Nat'l Bank of Dwight v. Regent Sports Corp., 803 F.2d 1431, 1438 (7th Cir. 1986) (applying Illinois law) (tort remedy).

• Each relevant state's definition of merchantability, and whether the alleged defect meets that threshold. CompareNacci v. Volkswagen of Am., Inc., 325 A.2d 617, 620 (Del.Super.Ct.1974) (under Delaware law merchantability standard is whether ordinary manufacturer would pursue different design), withVenezia v. Miller Brewing Co., 626 F.2d 188, 190 (1st Cir.1980) (under Massachusetts law merchantability examines reasonable consumer expectations). • The nature of an implied warranty claim under the relevant state's law, i.e., whether the remedy lies in tort or contract. CompareParrillo v. Giroux Co., 426 A.2d 1313, 1317 (R.I.1981) (contract remedy), withFirst Nat'l Bank of Dwight v. Regent Sports Corp., 803 F.2d 1431, 1438 (7th Cir.1986) (applying Illinois law) (tort remedy).

Similarly, a glass bottle which breaks in a child's hand is not imminently dangerous, Ciociola v. Delaware Coca-Cola Bottling Company, 3 Story., 53 Del. 477, 172 A.2d 252 (Del. 1961), but an automobile steering mechanism which collapses is. Dillon v. General Motors Corporation, 315 A.2d 732 (Del.Super. 1974). The Delaware state cases appear to use the terms "imminently" and "inherently" inter-changeably, Nacci v. Volkswagen of America, Inc., 325 A.2d 617, 619 (Del.Super. 1974), and no attempt will be made to distinguish between the two. Defendants argue that the obviousness of the danger presented by the calender as well as the length of time it had been in use without incident, both factors considered by the Court in Gorman v. Murphy Diesel Co., 42 Del. 149, 29 A.2d 145 (1942), require this Court to conclude that as a matter of law the calender was not imminently dangerous.