Cate v. Dover Corporation

790 S.W.2d 559 (1990)

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Nature of the Case

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Facts

P purchased from Beech Tire Mart three lifts manufactured and designed by D to elevate vehicles for maintenance. Despite repairs made by Beech and D, the lifts never functioned properly. P sued D for breach of implied warranty of merchantability. D motioned for summary judgment. D contends that P's claim is barred by a disclaimer contained within a written, express warranty. The text of the warranty itself is in black type, contained within double blue lines, and appears under the blue three-eighths inch block print heading 'WARRANTY.' The disclaimer of implied warranties, although contained in a separate paragraph within the warranty text, is in the same typeface, size, and color as the remainder of the text. D also claimed that P had actual knowledge that there was no implied warranty of merchantability. D’s motion for summary judgment was granted. The Appeals Court affirmed. P appealed.