       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                 IN AND FOR NEW CASTLE COUNTY

BARBARA D. JOHNSON                 )
                                   )
                 Plaintiff,        )     C.A. No. N13C-03-114 CLS
                                   )
                                   )
      v.                           )
                                   )
SLEEPY’S HOLDINGS, L.L.C,          )
a Delaware Limited Liability       )
Company, d/b/a SLEEPY’S            )
WILMINGTON, DELAWARE               )
                                   )
                 Defendant.        )


                       Date Submitted: March 11, 2015
                        Date Decided: May 28, 2015

     On Defendant’s Motion for Summary Judgment. DENIED in part and
                            GRANTED in part.


                                  ORDER

Joseph W. Weik, Esq. Weik, Nitsche, Dougherty & Galbraith, Wilmington,
Delaware 19805. Attorney for Plaintiff.

Kevin J. Connors, Esq. Marshall Dennehey Warner Coleman & Goggin,
Wilmington, Delaware 19801. Attorney for Defendant.




Scott, J.
      On this 28th day of May, 2015 and upon Defendant Sleepy’s

Holdings’ (“Defendant”) Motion for Summary Judgment, the Court finds as

follows:

1. On May 30, 2011, Plaintiff Barbara Johnson (“Plaintiff”) and her

   boyfriend, Mark Sekerke (“Sekerke”), purchased a queen sized Tempur-

   Pedic 30X80 mattress with two box springs at the Sleepy’s located at

   3737 Kirkwood Highway, Wilmington, Delaware 19805. The following

   day, persons either employed with or hired by Defendant delivered and

   set up the mattress set in Sekerke’s bedroom. Plaintiff alleges that three

   days later, on June 2, 2011, two of the four existing wooden slats broke,

   causing the mattress and box springs to collapse while Plaintiff and

   Sekerke were in it, cause personal injuries to her. Plaintiff brought this

   action against Defendant, alleging negligence, breach of express

   warranties, breach of the implied warranty of merchantability and breach

   of the implied warranty of fitness for a particular purpose.

2. On January 16, 2015, Defendant moved for summary judgment on

   Plaintiff’s negligence claim, breach of express warranties, breach of the

   implied warranty of merchantability and breach of the implied warranty

   of fitness for a particular purpose claims. Defendant asserts that Plaintiff

   has offered no evidence to establish that Defendant breached any express



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   warranties or implied warranties of merchantability and fitness for a

   particular purpose. Defendant argues that Sekerke’s failure to obtain the

   proper bed frame for the Tempur-Pedic mattress voided the warranties

   represented in the Tempur-Pedic Welcome Kit. Moreover, Defendant

   argues that the invoice Sekerke signed upon delivery effectively

   disclaimed and express or implied warranties, including exclusion of the

   implied warranties of merchantability and fitness for a particular purpose.

   Finally, Defendant asserts that Plaintiff’s claim of breach of implied

   warranty of fitness for a particular purpose necessarily fails because

   Plaintiff has not plead any special use or purpose for the mattress, as

   required for success on this claim. Defendant makes no argument in

   support of his motion for summary judgment as to Plaintiff’s negligence

   claim.

3. Plaintiff opposes Defendant’s motion on several bases. First, Plaintiff

   asserts that summary judgment should not be granted as to any claim she

   made regarding a breach of express warranties because express

   warranties cannot be disclaimed. Plaintiff also asserts that summary

   judgment should not be granted on her breach of implied warranty of

   merchantability because there is a genuine issue of material fact as to

   whether the mattress was defective in the sense that it was not fit for its



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    ordinary purpose, and because Defendant did not disclaim this warranty.

    Plaintiff notes that Defendant asserted no argument in support of

    summary judgment for Plaintiff’s negligence claim. Finally, Plaintiff did

    not respond to Defendant’s argument that summary judgment should be

    granted as to Plaintiff’s claim for breach of the implied warranty of

    fitness for a particular purpose.

4. Summary judgment is appropriate only when “the pleadings, depositions,

    answers to interrogatories, and admissions on file, together with the

    affidavits, if any, show that there is no genuine issue as to any material

    fact and that the moving party is entitled to summary judgment as a

    matter of law.” 1 The initial burden of informing the court of the basis for

    a motion for summary judgment and identifying the portions of the

    record which demonstrate the absence of a genuine issue of material fact

    fall on the moving party. 2 Once the moving party meets its initial burden

    of showing that no material issues of fact are present, the nonmoving

    party cannot rest on its own pleadings, but must provide evidentiary

    material sufficient to demonstrate the existence of a disputed material

    fact.3 Where material facts remain in dispute, the trial judge may not


1
  Super. Ct. R. 56; Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
2
  Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
3
  Phillips v. Del. Power & Light Co., 216 A.2d 281, 285 (Del. 1966).


                                           4
    conclude     that    issues     of    law.4    Only      after   the    fact    finder

    first resolves the disputed facts can the legal consequences of those facts

    be determined. 5

5. In this case, Defendant made no argument in support of its motion for

    summary judgment on Plaintiff’s negligence claim.                  For that reason,

    Defendant’s motion as to Plaintiff’s negligence claim is DENIED.

6. Under Delaware law, express warranties cannot be disclaimed. 6

    Moreover, there is a genuine issue of material fact as to whether

    Defendant breached any express warranties that may have been made.

    Accordingly, Defendant’s motion as to Plaintiff’s breach of express

    warranties claim is DENIED.

7. Under Delaware law, to be successful on a claim of breach of implied

    warranty of merchantability, a plaintiff must prove that: (1) a merchant

    sold the goods; (2) which were defective at the time of sale; (3) causing

    injury to the ultimate consumer; (4) the proximate cause of which was the

    defective nature of the goods; and (5) the seller received notice of the

    injury. 7 In this case, there is a genuine issue of material fact as to


4
  See Jones v. Crawford, 1 A.3d 299, 303 (Del. 2010).
5
  Id.
6
  See Bell Sports, Inc. v. Yarusso, 759 A.2d 582, 593 (Del. 2000) (citing 6 Del. C. § 2-
316(1)).
7
  Reybold Group, Inc. v. Chemprobe Technologies, Inc., 721 A.2d 1267, 1269 (Del.
1998).


                                             5
    whether there was a defective condition in the mattress at the time of

    sale. There is also a factual dispute as to whether Defendant effectively

    disclaimed this implied warranty. Factual disputes must be resolved by

    the jury. Accordingly, Defendant’s motion as to Plaintiff’s claim for

    breach of the implied warranty of merchantability is DENIED.

8. Under Delaware law, to be successful on a claim of breach of the implied

    warranty of fitness for a particular purpose, a plaintiff must prove that:

    (1) she had a special purpose for the goods; (2) defendant knew or had

    reason to know of that purpose; (3) defendant knew or had reason to

    know that the plaintiff/buyer was relying on the seller’s superior skill to

    select goods that fulfilled that purpose; and (4) the plaintiff in fact relief

    on defendant’s superior skill. 8 However, no recovery is available where

    a product is used for its ordinary purpose. 9 Defendant has satisfied its

    burden on a motion for summary judgment to demonstrate that Plaintiff

    has not made a prima facie showing of her claim because Plaintiff does

    not allege any special purpose for the mattress apart from its ordinary

    use, or that defendant knew or should have known of that special

    purpose. 10 Therefore, the burden shifts to Plaintiff to provide evidence


8
  Atamian v. Ryan, 2006 WL 1816936, *4 (Del. Super. Jun. 9, 2006).
9
  Id.
10
   See Celotex Corp, 477 U.S. at 323.


                                          6
      that demonstrates the existence of a material factual dispute. 11 Here,

      Plaintiff did not respond to Defendant’s argument for summary judgment

      as to her claim for breach of the implied warranty of fitness for a

      particular purpose. For this reason, Plaintiff has not satisfied her burden

      of demonstrating the existence of a material factual dispute on this claim.

      Accordingly, Defendant’s motion for summary judgment as to Plaintiff’s

      claim for breach of the implied warranty of fitness for a particular

      purpose is GRANTED.

9. For the foregoing reasons, Defendant’s Motion Summary Judgment as to

      Plaintiff’s Claim for Negligence is DENIED; as to Plaintiff’s Claim for

      Breach of Express Warranties is DENIED; as to Plaintiff’s Claim for

      Breach of Implied Warranty of Merchantability is DENIED; and as to

      Plaintiff’s Claim for Breach of Implied Warranty of Fitness for a

      Particular Purpose is GRANTED.

IT IS SO ORDERED.

                                                /s/Calvin L. Scott
                                                Judge Calvin L. Scott, Jr.




11
     Phillips, 216 A.2d at 285.


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