Lewis v. Big Powderhorn Mountain Ski Corp. , 69 Mich. App. 437 ( 1976 )

R. B. Burns, J.

Plaintiff Theresa Lewis claims to have been injured while riding a rope-tow at defendant’s ski facility. Plaintiff’s second amended complaint contained three counts reflecting alternative legal theories of liability. The trial judge granted defendant’s motion to dismiss on all counts except negligent operation of the rope-tow, and the jury returned a verdict of no cause of action on that theory. This appeal focuses its challenge on the trial court’s dismissal of plaintiffs’ count for breach of implied warranties.

The parties agree that a sale of goods is not involved and, therefore, that Article 2 of the Uniform Commercial Code and the implied warranties contained therein do not apply. Instead, plaintiffs contend that "[a]part from statute, implied warranties may apply”, Insurance Co of North America v Radiant Electric Co, 55 Mich App 410, 412; 222 NW2d 323, 324 (1974), and base their argument on a dicta pronouncement of this Court in Buckeye Union Fire Insurance Co v Detroit Edison Co, 38 Mich App 325; 196 NW2d 316 (1972).

Buckeye Union involved a "service”, the sale of electricity, inseverably linked to a tangible (and defective) "product”, electricity, sold by the kilowatt. Similarly, the two cases upon which Buckeye Union relied, Hoffman v Misericordia Hospital of Philadelphia, 439 Pa 501; 267 A2d 867 (1970), and Newmark v Gimbel’s, Inc, 54 NJ 585; 258 A2d 697 (1969), involved defective products which were administered to the respective plaintiffs as part of an alleged sale of a service. None of these cases constitute authority for the proposition that implied-at-law warranties arise from the sale of a service unattached to a product. Buckeye Union recognized that a product was involved in the service (p 331):

"The record is lacking in any substantive proof that the fire in plaintiffs’ house was caused by a defect in the manufacture or delivery of the electricity.”

The only product in this case that could conceivably be divined by the exercise of ingenuity is "a weekend of skiing”, presumably to necessarily include use of a rope-tow. We cannot consider this to be a product within the plain and common meaning of the term.

In what way may sale of a pure service logically be distinct from sale of a good or product? The law of products liability provides the fiction of implied warranties to enable a "consumer [to] sue a manufacturer directly for economic loss resulting from a defect in a product attributable to the manufacturer without proving negligence”. Cova v Harley Davidson Motor Co, 26 Mich App 602, 609; 182 NW2d 800, 804 (1970). (Emphasis added.) What, however, is an implied warranty in a nonproduct situation? For one, it is clearly meaningless to consider a warranty of merchantability in this context. Neither, on the facts of this case, can it be a warranty of fitness for purpose: plaintiffs were unable to provide any evidence as to defectiveness or unfitness of the rope-tow apparatus.

Plaintiffs, rather, find a defect in service and contend the existence of "implied warranties as to safety in the operation of [the] rope tow”. But as it is not (and cannot seriously be) contended that "strict liability” should lie for operation of the rope-tow, any "implied warranty of safety” can be nothing other than an implied promise not to operate the rope-tow in a negligent manner. And this question, negligent operation, is precisely that which the jury was properly allowed to determine.

"Products liability” has carved a wide and confusing swath across the law of tort and contract. Judge, now Justice, Levin has acutely recognized the complications spawned by the "misleading terminology of warranty” and the "amalgam of all those concepts”. Cova v Harley Davidson Motor Co, supra, pp 614-615. In Spence v Three Rivers Builders & Masonry Supply, Inc, 353 Mich 120, 131; 90 NW2d 873, 879 (1958), the Supreme Court concluded that products liability actions for breach of implied warranty are, in the last analysis, "bottomed on negligence”. We can see nothing to be gained by further obscuring the procedures of pleading and proof by encouraging plaintiffs to couch the identical argument in alternative theoretical forms, one valid and one imaginative. The judgment is affirmed.

Costs to defendant.

V. J. Brennan, J., concurred.