of a water slide on which small groups of park patrons descend in
over-sized rafts. At one point, the raft rose and came down hard, jolting
plaintiff. As a result of that "jolt," plaintiff suffered serious injury
to her back.
Plaintiff subsequently brought this action against Busch and Waterworld
Products, a manufacturer and designer of the ride, setting forth claims
of negligence (count I), breach of warranty (count II), and strict
liability (count III). Because defendant Waterworld has yet to enter an
appearance in this action, judgment against it on liability only was
entered in plaintiffs favor. See Order filed November 30, 1999.
II. LEGAL STANDARD
Summary judgment is appropriate if the moving party can "show that
there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When
ruling on a motion for summary judgment, the court must view the evidence
in the light most favorable to the non-movant. See Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986). The court must accept the nonmovants version
of the facts as true and resolve conflicts in the non-movant's favor. See
Big Apple BMW, Inc. v. BMW of N. Amer., Inc., 974 F.2d 1358, 1363 (3d
The moving party bears the initial burden of demonstrating the absence
of genuine issues of material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 322-23, 106 S.Ct. 2348, 91 L.Ed.2d 265 (1986). Once the
movant has done so, however, the nonmoving party cannot simply rest on
its pleadings. See Fed.R.Civ.P. 56(e). Rather, the non-movant must then
"make a showing sufficient to establish the existence of every element
essential to his case, based on the affidavits or by depositions and
admissions on file." Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir.
1992); see also Anderson to Liberty Lobby, Inc., 477 U.S. 242, 255, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986). Indeed, to defeat "a properly
supported summary judgment motion, the party opposing it must present
sufficient evidence for a reasonable jury to find in its favor." Groman
v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995.
A. Count II — Breach of Warranty
In count II of her complaint, plaintiff claims that Busch breached its
warranty of merchantability or fitness for use because "Sky Splash" was
"not as warranted, nor free from defects, but to the contrary was in a
dangerous and defective condition unreasonably dangerous to prospective
users or consumers. . . ." Compl. ¶ 20. Plaintiffs breach of warranty
claims falls under the auspices of the Uniform Commercial Code ("UCC").
The UCC, unless otherwise specified, "applies to transactions in goods."
13 Pa. Cons.Stat. Ann. § 2102. "Goods" are defined as:
[A]ll things (including specially manufactured goods)
which are movable at the time of identification to the
contract for sale other than the money in which the
price is to be paid, investment securities and things
in action. `Goods' also includes the unborn young of
animals an(f growing crops and other identified things
attached to realty as described in section 2107
(relating to goods to be severed from realty;
See 13 Pa. Cons.Stat. Ann. § 2105(a). "Goods to be severed from
realty" include, among other things, contracts for the sale of minerals,
structures to be removed from realty, and timber. See 13 Pa. Cons.Stat.
Ann. § 2107(a)-(b).