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Wallman v. Kelley8/6/1998
stify about any representations made by Kelley that influenced her decision.
Plaintiff argues on appeal that the trial court ignored the statements in her later affidavit that, if Kelley had told her not to take JBH, she would have relied on his expertise. Thus, she asserts, there were genuine issues of material fact. We disagree.
Plaintiff's affidavit stating that she would have relied on Kelley's expertise if he had told her not to take JBH does not raise an issue of fact as to whether she actually relied on Kelley's skill or judgment to select or furnish the product. See ยง4-2-315, C.R.S. 1997 (Official Comment 1) (the buyer must actually be relying upon the seller); Klipfell v. Neill, 30 Colo. App. 428, 494 P.2d 115 (1972). Accordingly, her affidavit fails to establish a genuine issue as to this fact, and hence, summary judgment for Kelley on this claim was properly entered.
The summary judgment in favor of Kelley on the breach of implied warranty of fitness for a particular purpose is affirmed. The balance of the judgment is reversed, and the cause is remanded for further proceedings.
JUDGE RULAND and JUDGE ROY concur.
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