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Jackson v. Alert Fire & Safety Equip.3/6/1991
n tort, and does not require any contractual relation, or privity of contract, between the plaintiff and the defendant." (Emphasis added.) Id. at 354.
In light of the foregoing, it is immaterial whether Awning and the city contracted to lengthen Kelley's coat. The important fact is that Kelley acquired the lengthened coat and was wearing it at the time of his injuries. Privity of contract is not required.
As a final note, we also conclude that Awning may be liable to Kelley in negligence. Having determined that Awning supplied a product and not sservice, Kelley effectively raised a triable issue of fact whether Awning breached a duty to Kelley when attaching the material to Kelley's coat.
In conclusion, the court of appeals properly determined that summary judgment should be granted in favor of Alert and Murdock, and denied as to Levinson's and Awning, except as to the claim of intentional infliction of emotional distress. Accordingly, we affirm the judgment of the court of appeals and remand the cause to the trial court for further proceedings not inconsistent with this opinion.
Judgment affirmed and cause remanded.
Sweeney, Wright, H. Brown and Resnick, JJ., concur.
Moyer, C.J., and Holmes, J., concur in part and dissent in part.
Holmes, J., concurring in part and dissenting in part. I concur with the majority opinion as it affirms the court of appeals relative to Alert and Murdock. I also concur in that portion of the opinion which affirms the court of appeals relative to Levinson's.
However, I dissent from the majority opinion in its affirmance of the court of appeals relative to Awning, except as to the claim of intentional infliction of emotional distress. With respect to Awning, the motion for summary judgment, as granted by the trial court, should have been affirmed, in that this company had rendered services in adding a lengthening panel to the fireman's coat, and had not supplied a product to the city for the use of its fireman.
Moyer, C.J., concurs in the foregoing opinion.
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