failed to meet their burden that the retailer knew or should have realized that a dangerous condition existed. Purkey v. Sears, Roebuck & Company, 220 F.2d 700 (5th Cir. 1955); cf. Thomas v. Ribble, 404 Pa. 296, 300, 172 A.2d 280, 282.
Where there is no proof of a dangerous instrumentality, and no proof of a defect or improper design making an otherwise harmless instrument dangerous, of which defendant retailer knew or should have known, it follows that the retailer has no duty to warn of product-connected dangers. Purkey v. Sears, Roebuck & Company, supra; American Law of Products Liability, vol. 1, § 2:30; 46 Am.Jur. § 805, p. 930.
On the facts in the instant case, § 402 of the Restatement of Torts, 1948 supplement, seems to be more applicable than 388. Section 402 states:
'A vendor of a chattel manufactured by a third person, who neither knows nor has reason to know that it is, or is likely to be, dangerous, is not subject to liability for harm caused by the dangerous character or condition of the chattel even though he could have discovered it by an inspection or test of the chattel before selling it.'
The Pennsylvania law seems to be in accord. Kratz v. American Stores Co., 359 Pa. 335, 59 A.2d 138; cf. Burgess v. Montgomery Ward and Company, 264 F.2d 495 (10th Cir. 1959) and cases collected in f.n. 16.
The plaintiffs' proofs establish that The Eska Corporation tested and manufactured Eska rotary mowers; that the mower purchased by McMeekin was packaged in a carton which contained printed instructions and warnings; that not even the designer was aware that this product would propel an object with such trajectory and velocity as to render it dangerous at a distance of 50 feet or more.
There was no duty on the defendant retailer to test or inspect each packaged rotary mower it offered for sale. Especially, the retailer had no duty to test for latent defects, the only kind the mower might have had, if it had any. 46 Am.Jur. § 805, p. 930.
The case of Ebbert v. Philadelphia Electric Co., 330 Pa. 257, 198 A. 323, cited by plaintiffs, is factually distinguishable from the instant case on three grounds: one, the chattel there was defective at the time of delivery; two, it was not sold in the original package of the manufacturer; three, the retailer inspected, tested, and demonstrated the chattel before selling it. It is these facts which make § 388 applicable to the Ebbert case. Similar facts being absent in the instant case, § 402, in our opinion, is the applicable section.
As to plaintiffs' contention that the defendant retailer is liable for breach of warranty, there was no proof of any express warranty. 12A Purdon's Pa.Stat.Ann. § 2-313.
Mr. McMeekin did not purchase the Eska mower for a purpose other than the general purpose of cutting grass, and he did not rely on defendant's skill and judgment in selecting the mower; hence, there was no implied warranty of fitness. 12A Purdon's Pa.Stat.Ann. § 2-315.
Finally, there was no proof of a breach of the implied warranty of merchantability or fitness for cutting grass. The plaintiffs utterly failed to meet their burden of establishing that the mower was not of merchantable quality when delivered on July 18, 1959. See: Knapp v. Willys-Ardmore, Inc., 174 Pa.Super. 90, 94-96, 100 A.2d 105, 108-109; Willman v. American Motor Sales Co., 44 Erie 51 (1961), charge of the Court at footnote 5.
On the contrary, the evidence established that the mower operated effectively and satisfactorily upon delivery and during the summer of 1959 and the early spring of 1960 and was usable and fit for the general purpose for which it was purchased. It complied with the commercial standards applicable to other rotary mowers on the market.
There was no proof that the mower was a dangerous instrument when delivered. There was no proof of any specific defect when the mower was delivered or at any subsequent time. There was no proof that it was negligently designed, or was designed in a fashion materially different from other rotary mowers on the market.
Whether a breach existed at the time the mower was delivered cannot be based upon mere conjecture or guess arising from a freak accident occurring at a time remote from the date of purchase. Knapp v. Willys-Ardmore, supra.
An appropriate order will be entered.