Virginia Lawyers Weekly VA Lawyers Weekly
Where the manufacturer of a pressure cooker argued that it disclaimed any implied warranty of merchantability in its instruction manual, but the disclaimer located on Page 30 of a “busy and colorful” booklet was not conspicuous, its motion to dismiss was denied.
Background
Kara A. Partin sued NuWave LLC for breach of express warranty (Count One) and breach of the implied warranty of merchantability (Count Two) after she allegedly suffered injuries using NuWave’s pressure cooker. As to Count Two, Partin asserts that the pressure cooker “was unreasonably dangerous for its ordinary use or reasonably foreseeable use because it[]s lid was capable of opening and did open after it was properly and completely closed while the unit was still pressurized.” NuWave moved to dismiss Count Two, arguing that it “disclaimed any implied warrant of merchantability with the required language and in writing that was conspicuous.”
Analysis
“Under Virginia Law, to disclaim, modify, or limit an implied warranty [of merchantability], the language must be in writing, be conspicuous, and mention the word ‘merchantability.’” The parties agree that NuWave’s attempted disclaimer is in writing and includes the word “merchantability.” Thus, the only issue before the court is whether the writing is conspicuous.
NuWave says the following aspects of the disclaimer make it conspicuous: (1) the disclaimer appears on a page with a large, “attention-grabbing” header and (2) “the operative text . . . is written in [all caps], which is … differentiated from [the] surrounding … text.” A holistic assessment of the disclaimer in the context of the Manual reveals that that the language is not conspicuous.
To begin with, the disclaimer appears on the 30th page of a busy and colorful owner’s manual-sandwiched just between a troubleshooting guide and a page titled “Pressure Cooking Notes” and then followed by another 30 plus pages of recipes. Although the heading of the warranty section appears in a large, bolded box, it is identical to every other heading in the manual. Nothing about the “Warranty” header would draw the user’s attention to the 30th page or the disclaimer thereon. Further, while the “Warranty” section is listed in the manual’s table of contents, “[t]he ‘Warranty’ entry . . . is not at all distinct from other entries such as ‘Poultry,’ and does not indicate that it contains a disclaimer” or otherwise limits a consumer’s rights.
Throughout the document, NuWave uses a variety of colored fonts, font effects, font sizes, pictures, symbols and indentations to mark important information and draw the reader’s eye. In contrast to these many eye-grabbing passages, the warranty page contains only black and white text of the same font type. Although several sub-headings on the page are bolded, none of the headings indicate to the reader that the information below limits or disclaims a warranty.
Indeed, although the second heading is titled “The Warranty Does Not Cover,” a reader glancing at this section would not find the disclaimer. Instead, the disclaimer appears six lines up from the bottom of the page, buried under the header “Manufacturer’s Obligation.” NuWave asserts that the disclaimer is in “contrasting typeface than the language around it,” but as Partin points out, “[t]he section is comprised of approximately 231 words,” and “[o]f those 231 words, more than half of them (134) are in capital letters.”
Finally, NuWave suggests that the admonition on Page 7 to “read all instructions” ensures that all users read the entirety of the manual and thus do not miss the disclaimer on Page 30. This argument is unpersuasive. First, a reasonable user could assume that the directive refers to the list of 14 instructions immediately below the header. Alternatively, a reasonable user could assume that the directive refers to the “instructions” sections of the manual and not to the entire document, which includes recipes and sections on “Pressure Caning” and “Troubleshooting” that are only applicable to some users’ needs. Finally, the directive on Page 7 bears little resemblance to warnings relied on by other courts.
Defendant’s partial motion to dismiss denied.
Partin v. NuWave LLC, Case No. 3:21-cv-713, May 13, 2022. EDVA at Richmond (Gibney). VLW 022-3-209. 9 pp.
