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LEMLEY v. J & B TIRE CO.

March 1, 1977

Vaughn W. LEMLEY and Anna L. Lemley, his wife, Plaintiffs,
v.
J & B TIRE COMPANY et al., Defendants and Third-Party Plaintiffs, v. Daniel W. SHETLER, III, Third-Party Defendant



The opinion of the court was delivered by: WEBER

 (MOTION OF DEFENDANTS MORRISONS)

 WEBER, Chief Judge.

 In this action plaintiffs seek to recover for personal injuries suffered when they were struck by an automobile driven by one Shetler. Shetler had purchased the automobile from the defendants Morrison in a used condition. Morrison had taken the automobile to Defendant J. B. Tire Company for repairs prior to the sale.

 
1. The Rule of Restatement, Torts 2d Sec. 402A for the sale of a defective product;
 
2. The Rule of Sec. 2-313 of the Uniform Commercial Code by reason of an express warranty;
 
3. The law of negligence.

 Defendants Morrisons have moved for partial summary judgment in their favor on the grounds that the facts which are not in dispute do not permit recovery under Sec. 402A of the Restatement Torts 2d or under any doctrine of warranty.

 I.

 There is no dispute that plaintiffs may assert a cause of action in negligence against defendants Morrisons.

 II.

 The plaintiffs cannot prevail on any cause of action asserted under the doctrine of Sec. 402A of the Restatement, Torts 2d, because the defendants Morrisons are not sellers engaged in the business of selling such a product. Even though the text of Rule 402A is clear as to this requirement, Comment F of the Reports Notes illustrates this point: "Nor does it apply to the owner of an automobile who on one occasion, sells it to his neighbor." The rationale of the Rule is further ...


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