Wilke v. Woodhouse Ford, Inc.

774 N.W.2d 370 (2009)

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Nature of the Case

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Facts

Ps purchased a used 2002 Ford Econoline cargo van from D. Before purchasing, P started the van's engine but did not test-drive the van. The purchase agreement stated that the van was used and purchased 'AS IS' and 'WITHOUT ANY WARRANTY' in bold type. “D EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.” Ps drove the van directly to the home of their friend. They pulled the van into the driveway, which was slightly sloped, and parked. The emergency brake was not applied. The key was taken out of the ignition. Ps showed the van to their friend. Elizabeth was standing directly behind the van and Mark was sitting at the end of the van with their daughter on his lap. The daughter got down from Mark's lap and stood beside Elizabeth. Elizabeth testified that she turned her head to talk to their friend for a moment and that when she was turning back to look at Mark, she saw her daughter climbing into the driver's seat. Elizabeth immediately screamed for her daughter to get down, and Elizabeth ran around to the driver's side of the van. The daughter had her left hand on the steering wheel and her right hand on the gearshift. Elizabeth heard a 'clunk,' and then the van started rolling backward. The daughter had grabbed the gearshift to pull herself up to come to Elizabeth, but that Elizabeth shoved her back into the van to make sure she would not fall out as the van rolled backward. Elizabeth was hit by the door and her right foot got caught under the van's tire. The force caused her to fall backward onto the pavement and hit her head. According to Elizabeth, the left front tire rolled over her right foot and thigh. The tire missed her shoulder, but her shirt was pinned under the tire. The deputy sheriff's report states: 'VEHICLE 1 WAS DISCOVERED TO HAVE A DEFECTIVE SHIFT LEVER THAT WAS ABLE TO BE SHIFTED OUT OF PARK MODE WITHOUT DEPRESSING BRAKE PEDAL.' The officer who responded to the call to the 911 emergency dispatch service testified that ''[he] got in the driver's side and moved the shift lever, which shouldn't have moved, and it went into neutral and drive out of park without stepping on the brake pedal.'' P took the van back to D for repairs. After the second repair, P could not get the gearshift to come out of park without the key in the ignition and the brake pedal depressed. In other words, according to P, the gearshift on the van worked properly after the second repair. It is undisputed that the van was not inspected by D prior to the purchase. Ps sued D. Ps allege that Woodhouse knew or should have known that the defective condition of the van would pose an unreasonable and foreseeable danger to its customer or that D knew or should have known that the van was defective when it was sold and that such negligence was the proximate cause of Elizabeth's injuries. Ps allege that D impliedly warranted, pursuant to Neb. U.C.C. § 2-314 (Reissue 2001), the van was merchantable and that D breached that implied warranty. The district court granted D's motion for summary judgment, and P appealed.