Anthony Pools v. Sheehan

295 Md. 285, 455 A.2d 434 (1983)

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Nature of the Case

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Facts

P sustained bodily injuries when he fell from the side of the diving board of P's new, backyard swimming pool. The swimming pool had been designed and built by D. D also designed and manufactured the diving board which it installed as part of the swimming pool transaction. The swimming pool is 16 feet by 40 feet, with a depth from 3 feet to 8 feet. Its style is 'Grecian.' There was a curved alcove in the center of each of the 16-foot sides. The 6-foot-long diving board was installed over the centerline bisecting the alcove at the deep end of the pool. P emerged from swimming in the pool, stepped up onto the diving board, and, while walking toward the pool end of the diving board, slipped and fell from the right side of the diving board and struck the coping of the pool. P argued that the skid-resistant material on the top of the diving board did not extend to the very edge of the board on each side. The allegedly breached an implied warranty of merchantability. P also claimed that use of the 'defective' diving board, positioned in the alcove, was unreasonably dangerous. The trial court directed a verdict for D based on implied warranty because the written contract conspicuously provided that the express warranties which it contained were in lieu of any other warranties, express or implied. On strict liability in tort, the verdict was in favor of D. P appealed. The Court of Special Appeals reversed and remanded for a new trial. The pool constituted 'consumer goods'' so that UCC 2-316.1 rendered D's attempt to limit the implied warranty of merchantability ineffective. D appealed. D contends that the pool is not 'goods,' and exclusion of implied warranties is allowed.