Contracts II

Koken v. Black & Veatch Const., Inc.

United States Court of Appeals for the First Circuit, October 14, 2005


During torch-cutting operation, a fire occurred while using a fire blanket allegedly manufactured and distributed by defendants with a 1000° rating. The was caused by pieces of molten slag falling onto the fire blanket and burning and melting through it. The fire extinguisher caused damage to the generator under plywood under the fire blanket, causing $9 million in repair and delay costs. Plaintiffs then sued defendants for product liability and breach of warranty claims. Defendants asserted various defenses and filed crossclaims against each other and other parties.

Procedural History:

District Court granted summary judgment on the product liability issues in favor of defendants.


Did defendants breach their implied warranty of merchantability?


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"[A] warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind."


Both defendants are merchants of fire blankets. However, there is not testimony that the ordinary user reasonably expected a fire blanket to prevent such extensive melting.


No, defendants did not breach their implied warranty of merchantability. Affirmed.