Law Motion for Summary Judgment by cometjunkie44

VIEWS: 13 PAGES: 17

									                     IN THE UNITED STATES DISTRICT COURT
                     FOR THE EASTERN DISTRICT OF VIRGINIA
                                Richmond Division

Mrs. Charlene O‟Malley, executrix of   )
 the Estate of Mr. David O‟Malley,     )
                                       )
               Plaintiff,              )
                                       )
vs.                                    )   Civil Action No.
                                       )
SAVE „N SAVOR, INC.,                   )
                                       )
               Defendant &             )
               Third-Party Plaintiff,  )
                                       )
vs.                                    )
                                       )
MICAH‟S SWEETS, Corp.,                 )
                                       )
and                                    )
                                       )
RABBI WENIGER-STRENG, Individually and )
 as an agent of Micah‟s Sweets, Corp., )
                                       )
               Third-Party Defendants. )


           DEFENDANT SAVE „N SAVOR, INC‟s MEMORANDUM OF LAW
             IN SUPPORT OF DEFENDANT‟S MOTION FOR PARTIAL
                          SUMMARY JUDGMENT
                                                     TABLE OF CONTENTS

Summary of Argument.................................................................................................................... 1

Statement of Facts ........................................................................................................................... 2

Argument ........................................................................................................................................ 3

   I. Save 'n Savor is entitled to partial summary judgment because the sign stating the food was
   “rabbi-certified” to be dairy-free stated the defendant‟s opinion rather than an affirmation of
   fact and, therefore, was not an express warranty as a matter of law. .......................................... 3

   II. Save 'n Savor is entitled to partial summary judgment as a matter of law because, even if the
   sign was an affirmation of fact, the basis of the bargain was merely that the candy was “rabbi-
   certified” to be dairy-free ............................................................................................................ 6

   III. Save 'n Savor is entitled to partial summary judgment because, if there was a implied
   warranty, that warranty was not breached because the food was merchantable and fit for its
   ordinary purpose as a matter of law. ........................................................................................... 7

       A. There was no breach of implied warranty because the kosher candy adhered to Jewish
       dietary guidelines, was adequately packaged and labeled and Mr. O‟Malley‟s misuse of the
       candy was unforeseeable. ........................................................................................................ 8

       B. There was no breach of implied warranty because Mr. O‟Malley was a “skilled
       purchaser” who should have known of the candy‟s potential “dangerous propensities” for
       severe allergy sufferers.......................................................................................................... 10

       C. There was no breach of implied warranty because the candy sold was fit for its ordinary
       purpose and Mr. O‟Malley did not establish an implied warranty for a particular purpose. 11

Conclusion .................................................................................................................................... 14

Certificate of Service .................................................................................................................... 15




                                                                        ii
                                      Summary of Argument

       Defendant Save „n Savor, in this Support of Defendant‟s Motion for Partial Summary

Judgment, moves this court to grant its motion on the count of breach of express warranty

pursuant to Federal Rule of Civil Procedure 56(c) on the grounds that there are no issues of

material fact. Additionally, Save „n Savor is entitled to a judgment as a matter of law because

plaintiff Mrs. O‟Malley has failed to establish essential elements of her claim under the express

warranty of merchantability law defined in §8.2-313 of the Code of Virginia. In particular, an

express warranty did not exist because Mrs. O‟Malley cannot prove that Save „n Savor‟s sign

stating that the food was “rabbi-certified” to be dairy-free was an affirmation of fact and not an

opinion. Moreover, even if it is shown that an affirmation of fact was made, Mrs. O‟Malley

cannot prove that the basis of the bargain was that the food was “dairy-free” because the sign

explicitly qualified it as merely “rabbi-certified” to be dairy-free.

       Defendant Save „n Savor, in this Support of Defendant‟s Motion for Partial Summary

Judgment, also moves this court to grant its motion on the count of breach of implied warranty.

Save „n Savor is entitled to a judgment as a matter of law because plaintiff Mrs. O‟Malley has

failed to establish essential elements of her claim under the implied warranty of merchantability

law defined in §8.2-314 of the Code of Virginia. In particular, Mrs. O‟Malley cannot prove that

the candy was inadequately packaged and labeled because it was adequately labeled as a kosher

food meant to meet Jewish dietary restrictions. Mr. O‟Malley‟s misuse of the product precludes

liability. Additionally, Mr. O‟Malley was a skilled purchaser who should have known of the

candy‟s potential danger to people w/ incredibly severe allergies. And finally, Mrs. O‟Malley

cannot prove that the candy was unfit for its ordinary purpose because the food was wholesome,

                                                   1
contained no foreign substances, and Mr. O‟Malley relied upon his own judgment and discretion

in making the purchase.

       Therefore, as a matter of law Mrs. O‟Malley cannot establish a successful claim for

breach of express or implied warranty of merchantability and, as such, this court should grant

Save „n Savor‟s Motion for Partial Summary Judgment.

                                       Statement of Facts

       Defendant Save „n Savor is a gourmet grocery store with its principle place of business in

Richmond, VA. It has several locations throughout the Richmond metropolitan area. The Save

„n Savor store in question sells ethnic foods and has a designated section dedicated to kosher

products. The kosher section is demarcated with a banner and contains a subsection labeled

“pareve,” meaning “dairy and meat free.” A sign in this subsection states that its foods are

“Rabbi-certified dairy and meat free to comply with Kosher dietary laws.” Save „n Savor

advertises its kosher foods primarily to a Jewish community, including a long-term contract to

place quarter page advertisements in each issue of Jewish Weekly.

       Products in the pareve section of the store carry certifications from any of the roughly 300

organizations that monitor kosher food manufacturers to ensure they comply with Jewish dietary

regulations. When selling products from this section, Save „n Savor relies on these certifications

and, as a small grocery store chain, does not independently investigate the authenticity of these

certifications. Micah‟s Sweets is one of Save „n Savor‟s suppliers. They manufacture a candy

called “Butterscotch Buttons” that are certified as pareve by Rabbi Weniger-Streng. Micah‟s

Sweets manufactures the candy on equipment that is also used to make dairy products. Rabbi

Weniger-Streng oversees the production of the candy. He is a part of a growing community of


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Jewish Rabbi who believe products manufactured on machines also used to create dairy products

can still be considered pareve. The ingredients on the labels of Butterscotch Button candy do not

list any dairy products and the labels are marked with Rabbi Weniger-Streng‟s seal of

certification. Micah‟s Sweets and Rabbi Weniger-Streng market Butterscotch Buttons as pareve

products and Save „n Savor therefore places the product in the pareve section of its store.

       Mrs. O‟Malley alleges that on June 11, 2004 her husband Mr. O‟Malley purchased a

Butterscotch Button candy from the pareve section of the Save „n Savor store located at 333

Washington Street, Richmond, VA. Mrs. O‟Malley alleges that her husband purchased foods

that are marked “pareve” because he was severely allergic to lactose and could only eat foods that

were dairy-free. Mrs. O'Malley has stated that her husband was familiar with Orthodox Union's

labeling system, the largest certification organization, but does not know what other labels he

was familiar with. She alleges that while driving home, her husband ate the candy and suffered

an allergic reaction, crashed into a tree, and was pronounced dead at the hospital. She alleges

that the autopsy revealed that the injuries from the car crash were not serious. Rather, she alleges

that the cause of death was trace amounts of lactose in his system that was linked back to the

Butterscotch Button candy. She is suing Save „n Savor for breach of both express and implied

warranties of merchantability.

                                            Argument

I. Save 'n Savor is entitled to partial summary judgment because the sign stating the food
was “rabbi-certified” to be dairy-free stated the defendant‟s opinion rather than an
affirmation of fact and, therefore, was not an express warranty as a matter of law.

       Defendant Save „n Savor‟s Motion for Partial Summary Judgment should be granted

because there is no genuine issue of material fact and Save „n Savor is therefore entitled to a


                                                 3
judgment as a matter of law. Fed. R. Civ. P. 56(c). Partial summary judgment is appropriate

when the nonmoving party fails to establish an element essential to its case. Nebraska v.

Wyoming, 507 U.S. 584, 590 (1993). Mrs. O‟Malley has failed to establish its claim of express

warranty by failing to prove that Save „n Savor made an affirmation of fact. Save „n Savor‟s

statement that the candy was rabbi-certified to be dairy-free was merely an opinion not an

affirmation of fact. This opinion relied on assertions made by the manufacturer and the rabbi that

certified it.

        Virginia‟s express warranty of merchantability law is defined in §8.2-313 of the Code of

Virginia. According to this statute, an express warranty of merchantability requires that the seller

make “an affirmation of fact, promise or description relating to the goods.” Va. Code Ann. §8.2-

313. In Bayliner Marine Corp. v. Crow, the court ruled that “a statement purporting to be merely

the seller‟s opinion or commendation of the goods does not create a warranty.” Bayliner Marine

Corp. v. Crow, 257 Va. 121, 127 (Va., 1999). In Bayliner, the court ruled that its sales brochure

was merely a commendation of the boat‟s performance because it did not describe a specific

characteristic or feature of the boat. Id. at 127. In Carney v. Sears, a retailer resold a ladder

manufactured by a third party. Carney v. Sears, Roebuck & Co., 309 F.2d 300 (4th Cir., 1962).

The court said that the decisive test of whether the retailer asserted a fact about the ladder‟s

quality rather than a mere opinion depended on whether 1. the vendor had special knowledge of

the fact, and 2. the buyer could have been “expected to have an opinion, and to exercise his

judgment.” Id. at 305. The court found no basis for an express warranty because the retailer only

knew what the manufacturer had told him and the plaintiff‟s “discretion and judgment played a

major part in the selection” of the ladder. Id. at 305.


                                                   4
       In this case, a sign in the pareve section of the Save „n Savor store stated the food in the

section was “rabbi-certified” to be “dairy-free.” Save 'n Savor put the food in the pareve section

based on the label from the manufacturer and certification organization. The statement meets the

test outlined in Carney for whether a statement is merely an opinion rather than an affirmation of

fact. First, just as the reseller did not have “special knowledge” of how the manufacturer created

the ladder, Save „n Savor had no special knowledge of the manufacturing or certification

processes for the candy. Nor could it be expected to given that there are over 300 separate

organizations that certify kosher foods sold by Save „n Savor. This is precisely why Save „n

Savor qualified the statement on the sign as only being “rabbi-certified” to be dairy-free. Second,

this is a situation in which plaintiff Mr. O‟Malley “did not rely solely upon” Save „n Savor‟s

judgment but rather relied on his own “discretion and judgment.” As someone who has lived 26

years with a life-threatening allergy, Mr. O‟Malley could reasonably be “expected to have an

opinion” regarding which products are safe for his highly restricted diet. Mr. O‟Malley made an

error in judgment in not researching Rabbi Weniger-Streng‟s certification process more

thoroughly to verify that this process did not include manufacturing the candy on machines that

had been used for dairy. Given the import this knowledge would have on his health and well-

being, Mr. O‟Malley was careless in using his own discretion and judgment to eat a candy whose

label had a seal that he was not familiar with. Moreover, similar to Bayliner in which the boat

seller‟s brochure constituted a “commendation” of its qualities rather than an affirmation of fact,

Save „n Savor‟s sign was merely a “commendation” that the food had been certified by Rabbi

Weniger-Streng.

       Therefore, the sign stating that the candy was “rabbi-certified” to be “dairy-free” was


                                                 5
merely Save „n Savor‟s opinion, or commendation, based in reliance on certification and

manufacturing processes of which it did not have any special knowledge. Additionally, Mr.

O‟Malley exercised his own discretion and judgment in purchasing a candy whose seal of

certification he was not familiar with. For these reasons, this Motion for Partial Summary

Judgment should be granted.


II. Save 'n Savor is entitled to partial summary judgment as a matter of law because, even
if the sign was an affirmation of fact, the basis of the bargain was merely that the candy
was “rabbi-certified” to be dairy-free

       The sign in question clearly states that the candy was “Rabbi-certified dairy and meat free

to comply with Kosher dietary laws.” (emphasis added). Therefore, the affirmation of fact that

constituted the basis of the bargain, if one existed, was merely that Rabbi Weniger-Streng

certified the candy to be “dairy-free.” To prove Save „n Savor breached its express warranty,

Mrs. O‟Malley will have to prove that Rabbi Weniger-Streng did not, in fact, certify the candy.

This is an undisputed fact and, therefore, Save „n Savor is entitled to partial summary judgment.

       According to Virginia‟s express warranty of merchantability law, for an express warranty

to be created the affirmation of fact must “become a basis of the bargain.” Va. Code Ann. §8.2-

313. The Supreme Court of Virginia has confirmed many times that any affirmation of fact is

“presumed to be a part of the bargain,” and any fact that would remove such affirmation out of

the agreement “requires clear affirmative proof.” Yates v. Pitman Mfg., Inc., 257 Va. 601, 606

(Va., 1999); Daughtrey v. Ashe, 243 Va. 73, 78 (Va., 1992).

       Save „n Savor did not state that the candy was dairy free. It stated that it was rabbi-

certified to be dairy-free. For Mrs. O‟Malley to argue that the basis of the bargain was that the



                                                 6
candy was “dairy-free” rather than “rabbi-certified” to be dairy free, according to the precedent

set in Yates and Daughtrey she must provide “clear affirmative proof” for why the explicit

“rabbi-certified” language should be removed from the basis of the bargain. Additionally, the

language of the sign also states that the purpose of the certification is to “comply with Kosher

dietary laws.” Therefore, Mrs. O‟Malley must also provide “clear affirmative proof” of why this

language should be removed.

       Therefore, since Mrs. O‟Malley cannot prove that Rabbi Weniger-Streng did not, in fact,

certify the candy as pareve nor can she provide a justifiable reason for excluding the “rabbi-

certified” to be “dairy-free” language from the basis of the bargain, Save „n Savor is entitled to

partial summary judgment.


III. Save 'n Savor is entitled to partial summary judgment because, if there was a implied
warranty, that warranty was not breached because the food was merchantable and fit for
its ordinary purpose as a matter of law.

       There is probably an implied warranty between Save „n Savor and Mr. O‟Malley because

Save „n Savor is a merchant in the business of selling kosher foods. However, Save „n Savor did

not breach this warranty because the candy it sold was of merchantable quality. Virginia‟s

express warranty of merchantability law is defined in §8.2-314 of the Code of Virginia. Of the

relevant portions of the statute, Mrs. O‟Malley cannot prove that the candy was “unfit for its

ordinary purpose” or that it was not adequately “contained, packaged, and labeled” and therefore

could not “pass without objection in the trade.” Va. Code Ann. §8.2-314. Moreover, Mr.

O‟Malley was a skilled purchaser who should have researched to make sure the food would meet

his dietary restrictions. No reasonable jury could conclude otherwise and so defendant Save „n



                                                 7
Savor is entitled to judgment as a matter of law.


       A. There was no breach of implied warranty because the kosher candy adhered to
       Jewish dietary guidelines, was adequately packaged and labeled and Mr.
       O‟Malley‟s misuse of the candy was unforeseeable.

       The candy was accurately packaged and labeled as a kosher food that met Jewish dietary

regulations. The candy has passed reasonably in the trade for as long as Micah‟s Sweets has been

manufacturing the product. It is marketed and targeted almost entirely towards the Jewish

community. Mr. O‟Malley misused the product by choosing to include it in his incredibly

restrictive diet without verifying what the certification seal on the label actually meant.

Therefore, Save „n Savor is entitled to partial summary judgment as a matter of law.

       In Wood v. Bass Pro Shops, the Virginia Supreme Court ruled that there can be no

recovery against the manufacturer for breach of implied warranties when there is an unforeseen

misuse of the product. Wood v. Bass Pro Shops, 250 Va. 297 (Va., 1995). In Wood, an implied

warranty was not found to be breached when the plaintiff misused a tree stand by failing to wear

a safety belt while descending from a tree. Id. Similarly, in Turner v. Manning the plaintiff was

injured when he was hit by a hoist. Turner v. Manning, Maxwell & Moore, Inc., 216 Va. 245

(Va., 1975). While the court stated that an implied warranty that a product be “reasonably safe

for its intended use” always exists, it ruled that there was no breach of implied warranty because

the hoist was being misused by the plaintiff. Id. at 247. Furthermore, in Featherall v. Firestone

Tire & Rubber Co., the court stated that the seller has no duty to warn of danger when the

product is used in an “unlikely, unexpected or unforeseeable manner.” Featherall v. Firestone

Tire & Rubber Co., 219 Va. 949, 962 (Va., 1979). In Jeld-Wen, Inc. v. Gamble, the court



                                                    8
expanded this rule stating that even “foreseeable misuse” does not automatically give rise to a

duty for the seller to guard against the danger of that misuse. Jeld-Wen, Inc. v. Gamble, 256 Va.

144, 149 (Va., 1998). In Jeld-Wen, a window manufacturer was held to have no duty to make its

screens act as a childproof restraint. Id. Its reasoning was that extending liability to every

conceivable foreseeable accident would abuse “common sense” and “good policy.” Id. at 149.

       In this case, it was unforeseeable to Save „n Savor that Mr. O‟Malley would purchase the

candy to fit the dietary restrictions of his life-threatening allergy. Furthermore, Micah‟s Sweets is

in the business of creating pareve foods for a Jewish market and the rabbi is in the business of

certifying those foods to meet kosher dietary regulations. Just like in Wood and Turner, in which

the vendor was not responsible for injuries caused by misusing the ladder and the hoist, Save „n

Savor is not responsible for injuries caused by misusing a product clearly intended for

compliance with Jewish dietary regulations and nothing more. As in Featherall, Save „n Savor

was unaware of Mr. O‟Malley‟s severe allergy and had no duty to warn him of potential dangers

because they were “unlikely, unexpected,” and “unforeseeable.” While it may be foreseeable that

some people with mild lactose-intolerance would purchase this product because it is dairy-free, it

is unforeseeable that someone with a severe, potentially fatal, allergy would purchase and eat the

product without verifying what the seal on the label meant. Even if it was foreseeable, an

implied warranty would not be created. Just like in Jeld-Wen, liability is restricted to ensure it

does not abuse common sense and public policy. Creating a duty for Save „n Savor‟s to

investigate the manufacturing processes of all of its suppliers and warn its buyers of all incredibly

improbable dangers of its products puts undue burden on the store and would be an abuse of

public policy.


                                                  9
       Therefore, given that the candy was accurately packaged and labeled as a kosher food meant

to meet Jewish dietary regulations, Mr. O‟Malley‟s choosing to include it in his incredibly restrictive

diet was an unforeseeable misuse of the product. This product passes without objection in the trade

and, therefore, Save „n Savor is entitled to partial summary judgment.


       B. There was no breach of implied warranty because Mr. O‟Malley was a “skilled
       purchaser” who should have known of the candy‟s potential “dangerous
       propensities” for severe allergy sufferers

       As someone with a life-threatening allergy to lactose, Mr. O‟Malley qualified as a skilled

purchaser that should have known the danger of eating foods without checking whether they

were made on machines also used to make dairy products.

       In Goodbar v. Whitehead, the plaintiff supplied a product used in the defendant‟s foundry

that injured plaintiff‟s employees. Goodbar v. Whitehead Bros., 591 F. Supp. 552 (D. Va.,

1984). The court ruled that there is no duty to “give warnings to members of a profession as to

generally known risks.” Id. at 560. Additionally, it stated that if the supplier “has reason to

believe that the purchaser of the product will recognize the dangers associated with the product”

no warnings are mandated. Id. at 561. Similarly, in Dornan v. Penn Builders, new homeowners

developed respiratory problems after their builders contracted w/ a concrete company to sand a

section of the floor. Dornan v. Penn Builders, 21 Va. Cir. 267 (Va. Cir. Ct., 1990). The court

ruled that no implied warranty of merchantability arises when “a skilled purchaser knows or

should have known of any dangerous propensities” of the product. Id. at 268. In Gillette v.

Kelling Nut Co., the court extends this rule stating that whenever a buyer “inspects or has the

opportunity to inspect” a good, no implied warranty exists and any latent defects “should not



                                                  10
establish a warranty.” Gillette v. Kelling Nut Co., 185 F.2d 294, 297 (4th Cir., 1950).

        Like in Goodbar, Save „n Savor did not have a duty to warn because it could reasonably

assume that a purchaser with life-threatening allergies would know of, and protect himself from,

the potential dangerous propensities of the product. In this case, Mr. O‟Malley should not have

purchased and consumed the product without verifying the standard of manufacturing implied by

Rabbi Weniger-Streng‟s certification seal. Just like in Goodbar, Save „n Savor had reason to

believe the purchaser would recognize the dangers associated with the product. Just like in

Dornan, Mr. O‟Malley is a “skilled purchaser” which precludes a limited warranty from arising.

While Mr. O‟Malley is not a business entity like the builder in Dornan, his 26 years spent

selecting food to meet his dietary restrictions justifies classifying him as a “skilled purchaser.”

Additionally, just like in Gillette, Mr. O‟Malley had the opportunity to inspect the good therefore

precluding an implied warranty claim. He was aware of the labeling system of other certification

organizations (e.g. Orthodox Union) and should have researched the seal on the candy to verify

what manufacturing procedures were acceptable.

        Therefore, since Mr. O‟Malley was a skilled purchaser that should have researched the

certification seal to understand its significance prior to putting his life at risk, there can be no

breach of implied warranty.


        C. There was no breach of implied warranty because the candy sold was fit for its
        ordinary purpose and Mr. O‟Malley did not establish an implied warranty for a
        particular purpose.

        The candy was “fit for its ordinary purpose” because it was wholesome, did not contain

any foreign substances and was sufficient to meet Jewish dietary restrictions. Furthermore, Mr.



                                                   11
O‟Malley did not establish an implied warranty for his particular purpose of using the candy to

comply with his severe allergies.

       Virginia follows the common law doctrine that when someone sells food for human

consumption an implied warranty is created that the food is wholesome. Swift & Co. v. Wells,

201 Va. 213 (Va., 1959). In Brockett v. Harrell Bros., Inc., the plaintiff bit into a sandwich and

broke her tooth on buckshot. Brockett v. Harrell Bros., Inc., 206 Va. 457, 460 (Va., 1965). The

court elaborated on the rule in Swift that to be fit for human consumption food must be “free of

foreign substances.” In Harris-Teeter, Inc. v. Burroughs, a cake was delivered to the plaintiff

with small plastic birds on top. Harris-Teeter, Inc. v. Burroughs, 241 Va. 1 (Va., 1991). The

plaintiff accidentally ate one of the birds and had to have surgery to have it removed. Id. The

court ruled the birds did not constitute “foreign matter” and held the cake was fit for human

consumption. Id. The birds‟ placement did not create an “unreasonably dangerous condition”

because putting the birds on the cake represented “normal, every-day practice.” Id. at 6.

Therefore, to be fit for its ordinary purpose a food must be wholesome and must not contain

foreign substances that do not make up normal, every-day practice. To establish an implied

warranty for a particular purpose, the buyer must prove that “he made known to the seller the

particular purpose” for which the goods were to be used. Bayliner Marine Corp. v. Crow, 257

Va. 121, 129 (Va., 1999). In Universal Motor Co. v. Snow, a buyer and the seller entered into an

agreement for the sale of a mill. Universal Motor Co. v. Snow, 149 Va. 690 (Va., 1927). The

court expanded this test ruling that there is no breach of warranty when the buyer relies on his

own judgment when ordering the good for the particular purpose. Id. at 696. Furthermore, it

stated that “in the usual course of trade” there is no warranty for a particular purpose “merely


                                                 12
because the seller is informed of such purpose.” Id. at 696.

       In this case, Mrs. O‟Malley cannot prove that the candy was not wholesome. The trace

amounts of dairy are not “foreign substances” in the same way buckshot in a sandwich was a

“foreign substance” in Brockett. Furthermore, just as the plastic birds on the cake in Harris-

Teeter, Inc. were not found to be foreign substances, trace amounts of dairy found in pareve

products will not be considered foreign substances because creating pareve candy on

manufacturing equipment is “normal, everyday practice.” The trace amount of dairy in the candy

did not make the candy “unreasonably dangerous” just as the plastic birds did not make the cake

unreasonably dangerous. Therefore, Mrs. O‟Malley cannot prove that the candy was unfit for its

ordinary purpose because it was wholesome and did not contain foreign substances.

       Furthermore, Mrs. O‟Malley cannot prove that an implied warranty of fitness existed for

Mr. O‟Malley‟s particular purpose. Just like in Bayliner Marine Corp., Mr. O‟Malley never

“made known” to Save „n Savor the “particular purpose” for which he was planning on using the

good. He never stated that he was purchasing the pareve food to meet his unique allergy-based

dietary restrictions. Even if he had told Save „n Savor his purpose, or if his purpose could have

been derived through his previous visits to the store, Universal Motor Co. v. Snow confirms that

there is still no implied warranty because merely informing the seller is not enough.

Furthermore, Mr. O‟Malley‟s reliance on his own judgment and discretion also precludes the

creation of an implied warranty.

       Therefore, Mrs. O‟Malley cannot prove that the candy was unfit for its ordinary purpose

because it was wholesome and contained no foreign substances. Nor can she prove that an

implied warranty for the particular purpose of meeting Mr. O‟Malley‟s allergy restrictions was


                                                13
created because Save „n Savor was never informed of this purpose and Mr. O‟Malley relied on

his own judgment in making the purpose. As such, Save „n Savor is entitled to partial summary

judgment as a matter of law.

                                            Conclusion

       For the reasons set forth above, Defendant Save „n Savor respectfully requests that its

Motion for Partial Summary Judgment be granted. An express warranty of merchantability

requires that the affirmation of fact become a basis of the bargain. Mrs. O‟Malley cannot, as a

matter of law, prove that the sign stating the food was “rabbi-certified” to be dairy-free was an

affirmation of fact rather than Save „n Savor‟s opinion. Additionally, even if it is an affirmation

of fact Mrs. O‟Malley cannot prove that the basis of the bargain was merely that the candy was

“dairy-free” rather than “rabbi-certified” to be dairy-free. Therefore, Save „n Savor did not

breach an express warranty of merchantability and is entitled to partial summary judgment.

       An implied warranty of merchantability requires that the good sold be merchantable.

Mrs. O‟Malley cannot prove, as a matter of law, that the candy was not merchantable because the

candy was adequately packaged and labeled as a kosher food adhering to Jewish dietary

regulations. Mr. O‟Malley simply misused the product by using it for his own particular purpose.

Additionally, Mrs. O‟Malley cannot prove the candy was unfit for its ordinary purpose because

the food was wholesome and did not contain any foreign substances. Finally, there was no

breach of implied warranty of merchantability because Mr. O‟Malley was a skilled purchaser

who should have known of the candy‟s potential danger to severe allergy sufferers.




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                                   Certificate of Service

       I hereby certify that on this 12th day of March, 2005 a true and correct copy of the
foregoing DEFENDANT SAVE 'N SAVOR, INC's MEMORANDUM OF LAW IN
SUPPORT OF DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT was
served via U.S. mail, postage prepaid, upon Plaintiff‟s cousel as follows:


[Plaintiff‟s Council]
State Bar No. [xxxx]
[Council‟s Law Firm]
[Mailing Address]
[Telephone Number]



                                                 _/s/________________________________
                                                 0059, Esquire
                                                 THE KIRCHNER GROUP, LLC
                                                 14 North 22nd St. Suite 300
                                                 Arlington, VA 22201
                                                 Telephone: (703) 555-5555
                                                 Facsimile: (703) 555-5558

Dated: March 12, 2005                            Council for Defendant & Third-Party Plaintiff




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