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ELITE PROFESSIONALS3/6/1992
This is a products liability case. Plaintiff Elite Professionals, Inc., (Elite) a trucking company engaged in the business of interstate transportation of commodities as a common carrier, appeals from the summary judgment entered against it and in favor of defendant Carrier Corporation (Carrier) on Elite's claim for damages arising out of a truck refrigeration unit malfunction that resulted in the spoilage of a cargo of meat.
Elite seeks to recover for physical damage to property other than the refrigeration unit; compensatory, damages are sought for the loss of the meat by spoilage and in the amount of the pre-incident value of the meat. Recovery is not sought for damage to the refrigeration unit occasioned by its malfunction nor for its
defective condition, that is, its qualitative defect, when sold to Elite. A qualitative defect is a defect that precludes the product from being fit for its intended use or functioning as expected for the purpose it was designed. Daitom, Inc. v. Pennwalt Corp., 741 F.2d 1569, 1581 (10th Cir. 1984).
The refrigeration unit was manufactured by Carrier. It was a new unit when sold to Elite and mounted on an Elite reefer trailer by a Wichita, Kansas, Carrier dealer on July 22, 1987. The obvious function of a truck refrigeration unit of the sort here involved is to chill a reefer trailer's interior and its cargo.
In the trial court, Elite's asserted theories for recovery were strict liability, negligence, breach of express warranty, and breach of implied warranty. Before us, Elite has abandoned reliance upon implied warranty.
The incident giving rise to Elite's claim occurred in the course of Elite's transport of a 23-ton load of frozen hog sides from the consignor Vermont Meat Packers, Inc.'s place of business in Swanton, Vermont, to the consignee Far West Meat Company's place of business in Highland, California.
Jesse Simpson, Elite's driver for this particular shipment, picked up the hog sides on September 11, 1987, in Vermont. When loaded aboard the reefer trailer, the meat temperature was zero degrees. The meat was to be kept at that temperature until delivered to Far West in California. To accomplish that, the reefer's interior temperature needed to be kept at zero degrees.
The possibility of a refrigeration problem was first evident to Simpson at about 2:00 p.m. in the afternoon of Wednesday, September 16, 1987, when he made a routine stop at Wilson, New Mexico, to check out his truck. Simpson found that the "T-ticker" gauge on the outside of the reefer reported that the temperature inside the reefer was some three to five degrees above zero. Simpson turned the refrigeration unit's temperature control down. In addition, he telephoned Elite's headquarters in Strong City, Kansas, to report the situation to Mark Miller, Elite's president.
Miller told Simpson to proceed onward from Wilson and to call back. In the meantime, Miller would look into the matter of locating a facility to which the truck might be taken for repair of the refrigeration unit or he would make arrangements for a
driver switch, with the new driver to take the load on to its California destination.
When Simpson arrived at Gallup, New Mexico, at about 6:00 p.m., the reefer temperature had risen to about 20 degrees. Simpson reported that development to Miller by telephone. Miller instructed Simpson to continue on to Sanders, Arizona, for a driver switch. Simpson's log book reports that he arrived at Sanders at about 7:00 p.m. The switch took place that evening and the new driver, Clate Watkins, took the loaded reefer trailer to California. Watkins arrived at Far West's Hig
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