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Adel v. Greensprings of Vt., Inc. - 363 F. Supp. 2d 692 (D. Vt. 2005)

Rule:

If the furnishing of water is covered by Vermont's version of the Uniform Commercial Code, then the warranty of merchantability should apply. The statute clearly states that unless excluded or modified (Vt. Stat. Ann. tit. 9A, § 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Vt. Stat. Ann. tit. 9A, § 2-314 (2004). Thus, if a seller of water is a merchant with respect to water, there is an implied warranty. The statute provides no basis to grant a special exemption for sellers of water.

Facts:

Plaintiff Leslie Adel suffered from a severe case of Legionnaires' disease after returning from a ski vacation during which he stayed at a resort owned and operated by Defendant Greensprings of Vermont, Inc. The water at the resort was tested by health officials, and some of the samples contained Legionella bacteria. Leslie, joined by his wife, Joanne Adel, brought the present action against Greensprings, as well as its president, manager, and consultant, alleging negligence and strict liability. Defendants have moved for summary judgment on all counts of the complaint.

Issue:

Should the district court grant defendants’ motion for summary judgment on all counts of the complaint?

Answer:

No.

Conclusion:

The court granted the summary judgment motion as to the president and the consultant because neither of them were personally involved in maintaining the resort's water supply. In denying the remainder of the motion, the court held that water was a "good" under article 2 of the Uniform Commercial Code (UCC), Vt. Stat. Ann. tit. 9A, § 2-105 (2004), and that the corporation was a "merchant" with respect to water pursuant to Vt. Stat. Ann. tit. 9A, § 2-104(1). The court averred that because the condominium owners of the resort's units paid the resort for water, they were "buyers" of the water, and thus, the warranty of merchantability in Vt. Stat. Ann. tit. 9A, § 2-314 (2004) applied. The court further held that the corporation was in the business of selling water for purposes of strict liability, and the manager could be held liable for negligence because he was personally responsible for the resort's water supply at the time the husband got sick.

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