This section contains the nature of the case and procedural background.

P ordered a glass of wine at D's restaurant. P took a sip, and the wine glass broke in P's hand, resulting in an alleged permanent injury. P sued D for negligence, breach of implied warranty and strict liability under the theory of Restatement (Second) of Torts § 402A (1965). Prior to trial, P's attorney indicated that he could not prove negligence, and wished to submit the case to the jury on the grounds of breach of warranty and strict liability. The court ruled the case sounded in negligence alone and granted D's motion for dismissal. The Court of Appeals affirmed. P appealed. D argues the UCC does not apply since the restaurant was not a merchant with respect to wine glasses and, since the glass itself was not sold, there was no passing of title. P claims that UCC 2-314 governs the case.

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