PITMAN MANUFACTURING, INC.
April 16, 1999
Record No. 981474
EDDIE M. YATES
PITMAN MANUFACTURING, INC.
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Keary R. Williams, Judge
PRESENT: Carrico, C.J., Compton, Lacy, Hassell,
Koontz, and Kinser, JJ., and Stephenson, Senior Justice
OPINION BY SENIOR JUSTICE ROSCOE B. STEPHENSON,
In this products liability personal injury
case, we decide whether the trial court erred in holding that the
plaintiff, who was not the purchaser of the product, must have
given notice of breach of warranty to the product’s manufacturer
as a prerequisite to recovery for breach of warranty. We also
decide whether the trial court erred in striking the plaintiff’s
express warranty claim.
Eddie M. Yates sued Pitman Manufacturing, Inc.
(Pitman), seeking $3,000,000 in damages for injuries he sustained
when an outrigger on a crane unit manufactured and sold by Pitman
came down onto and crushed Yates’ left foot. Yates claimed that
(1) Pitman breached its implied warranty by selling a crane truck
system and outriggers that were not of merchantable quality or
fit for ordinary purposes; (2) Pitman breached its express
warranty that the crane unit, including the outriggers, met all
requirements of the American National Standards Institute (ANSI)
Standard B30.5-1968; (3) Pitman breached its duty to him to
design and market a crane system that was reasonably safe and
such negligence proximately caused his injuries; and (4) Pitman
negligently failed to maintain the crane truck by failing to
install an audible warning device for use with the outriggers.
Prior to trial, Yates moved the court to
exclude all evidence concerning whether he had provided
reasonable notice to Pitman of its breach of warranty. The trial
court overruled Yates’ motion, holding that the notice provision
of Code ? 8.2-607(3) applied and required Yates, who was
not the buyer of the crane unit, to give notice of breach of
warranty to Pitman.
At trial, at the conclusion of Yates’
case-in-chief, the trial court struck Yates’ evidence on his
breach of express warranty claim. The court held that Yates had
failed to produce any evidence that the crane unit did not comply
with any affirmation or promise made by Pitman.
Thereafter, the case was submitted to the jury
on the breach of implied warranty and negligence claims. The jury
returned its verdict in favor of Pitman, and the trial court
entered judgment on the verdict. We awarded Yates this appeal.
In 1982, Pitman sold the crane unit to Shelton
Witt Equipment, a distributor. At the time, Pitman certified that
"these cranes meet applicable design and construction
standards as prescribed in ANSI B30.5-1968." When the unit
was sold, ANSI Standard B30.5-1968 mandated that "[e]ach
outrigger shall be visible from its actuating location."
On July 19, 1991, when Yates was injured, Koch
Carbon (Koch) owned the unit and was using it to deliver
equipment to Baldwin Coal Corporation, Yates’ employer. At the
time Yates was injured, he was releasing restraining chains from
the crane truck’s bed when suddenly, without warning, one of the
outriggers dropped onto his foot. Unbeknownst to Yates, Ira
Stiltner, a Koch employee, had activated the outrigger from the
front of the truck. When Stiltner activated the outrigger, he
could not see either Yates or the outrigger.
First, we consider whether the trial court
erred in holding that Yates was required to provide Pitman with
notice of breach of warranty as a prerequisite to recovery
therefor. The issue is one of first impression for this Court.
To resolve the issue, we look to Code
? 8.2-607(3), the only provision of the Sales title of the
Uniform Commercial Code (the UCC) that requires notice to be
given to a seller of goods. The section provides, in pertinent
part, the following:
Where a tender has been accepted
. . . the buyer must within a reasonable time
after he discovers or should have discovered any breach
notify the seller of breach or be barred from any remedy.
It is firmly established that, when a statute
is clear and unambiguous, a court must accept its plain meaning
and not resort to extrinsic evidence or rules of construction. Gonzalez
v. Fairfax Hospital System, 239 Va. 307, 310, 389 S.E.2d
458, 459 (1990). The pertinent language in Code
? 8.2-607(3) is unambiguous and clearly states that
"the buyer must . . . notify the seller of
[the] breach." (Emphasis added.) Thus, accepting the
statute’s plain meaning, it is apparent that the notice of breach
is required from the "buyer" of the goods.
In the present case, Yates was not the buyer of
the crane unit. Therefore, the notice requirement of Code
? 8.2-607(3) does not preclude Yates from maintaining a
breach of warranty action.
We hold, therefore, that only buyers; i.e.,
those who buy or contract to buy goods from a seller, Code
? 8.2-103(a), must give notice of breach of warranty to the
seller as a prerequisite to recovery. Consequently, the trial
court erred in ruling that Yates was required to have given
Pitman such notice.
Next, we consider whether the trial court erred
in striking Yates’ evidence relating to his express warranty
claim. As previously noted, Pitman certified that, at the time of
sale, the crane unit met "applicable design and construction
standards as prescribed in ANSI B30.5-1968." At that time,
ANSI Standard B30.5-1968 required each outrigger to be
"visible from its actuating location." Yates, however,
presented evidence that, from the actuating station, the crane
operator, "[n]ot only [could] not see the outrigger, but he
[could not] see that there’s a person [who] might come into
contact with that hazard."
Pitman contends that the trial court correctly
struck Yates’ express warranty claim because Yates (1)
"offered no evidence that the ANSI certification was part of
the bargain in any sales transaction involving the product"
and (2) failed to produce any evidence that the crane unit’s
design and construction violated the ANSI Standard. We do not
Code ? 8.2-313, the express warranty
statute, provides as follows:
(1) Express warranties by the seller
are created as follows:
(a) Any affirmation of fact or promise
made by the seller to the buyer which relates to the
goods and becomes part of the basis of the bargain
creates an express warranty that the goods shall conform
to the affirmation or promise.
(b) Any description of the goods which
is made part of the basis of the bargain creates an
express warranty that the goods shall conform to the
(c) Any sample or model which is made
part of the basis of the bargain creates an express
warranty that the whole of the goods shall conform to the
sample or model.
(2) It is not necessary to the creation
of an express warranty that the seller use formal words
such as "warrant" or "guarantee" or
that he have a specific intention to make a warranty, but
an affirmation merely of the value of the goods or a
statement purporting to be merely the seller’s opinion or
commendation of the goods does not create a warranty.
An affirmation of fact is presumed to be a part
of the bargain, and any fact that would remove such affirmation
out of the agreement "’requires clear affirmative
proof.’" Daughtrey v. Ashe, 243 Va. 73, 78,
413 S.E.2d 336, 339 (1992) (quoting with approval Official
Comment 3 to ? 8.2-313). Additionally, a plaintiff is not
required to show that he relied upon the affirmation in order to
recover under an express warranty claim. Id. at 77-79, 413
S.E.2d at 338-39.
In the present case, Pitman presented no
evidence that would take its affirmation out of the agreement.
Therefore, its affirmation was a part of the basis of the
bargain. See id. at 80, 413 S.E.2d at 339. See
also Martin v. American Med. Sys., Inc., 116
F.3d 102, 105 (4th Cir. 1997). Thus, we hold that Pitman’s
affirmation of fact created an express warranty that applied to
Yates even though he was not the purchaser of the crane unit. We
also hold that Yates presented evidence from which a jury could
reasonably conclude that the crane unit did not comply with ANSI
Standard B30.5-1968. Therefore, the trial court erred in striking
Yates’ express warranty claim.
For the reasons stated, we will reverse the
trial court’s judgment and remand the case for a new trial
consistent with the views expressed in this opinion.
Reversed and remanded.
 The conclusion we reach is consistent
with the decisions of the vast majority of other courts that have
ruled on the issue. See, e.g., Cole v. Keller
Indus., Inc., 132 F.3d 1044, 1047 (4th Cir. 1998),
and the decisions cited therein.