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Olshansky v. Rehrig International5/3/2005
t in a severe rash as a result of using liquid soap that she had purchased from the defendant. At trial, the plaintiff presented testimony about the severity of her rash but then, after she concluded her case, the defendant's motion for a directed verdict was granted. This Court affirmed the trial justice's decision, holding that the "plaintiff did not present any evidence from which a jury reasonably could have inferred that [the product] * * * would not pass without objection in the trade" or that it "was not of fair average quality or fit for the ordinary purpose of cleaning." Id. at 719.
Once again, our holding here is based on plaintiffs' failure to present enough evidence to overcome defendant's motion for summary judgment. Nothing on the record indicates that when the shopping cart was delivered from Rehrig to Ann & Hope it "would not [have passed] without objection in the trade." Thomas, 488 A.2d at 719. Similarly, without establishing that the cart left defendant's control in a condition below "fair average quality" or unfit for the purpose of carrying goods, plaintiffs are unable to meet their burden of proving that defendant breached its implied warranty of merchantability. Id. Therefore, we affirm the motion justice's decision and hold that, as a matter of law, plaintiffs are not entitled to recover from defendant under the theory of breach of implied warranty.
In Thomas, we further stated that in an action for breach of implied warranty of merchantability, " he plaintiff is not bound to exclude every other possible cause of her condition but she is required to show that the probable cause was the [product]." Thomas, 488 A.2d at 719. While this statement of law certainly applies to the case before us now, we note that it was misapplied under the doctrine of implied warranty of merchantability in Thomas. As discussed above, the key to determining liability under the theory of breach of implied warranty is whether the seller breached its duty to deliver the product in the proper condition. If the seller fails to deliver the product as required, then breach has occurred and the buyer may recover. The above statement of law would be better applied under a claim of negligence, for which causation is an indispensable element. Notwithstanding, there can be no doubt that here, plaintiffs certainly did not show that a defect in the cart attributable to Rehrig caused Mr. Olshanksy's condition.
VI. Loss of Consortium
It is well settled that a loss of consortium claim "depends on the success of the underlying tort claim." Soares v. Ann & Hope of Rhode Island, Inc., 637 A.2d 339, 353 (R.I. 1994). Thus, because plaintiffs' strict liability, negligence and breach of warranty claims arising from Mr. Olshansky's injuries all fail, so too must Mrs. Olshansky's claim for loss of consortium.
Conclusion
For the reasons stated herein, we affirm the judgment of the Superior Court. The record shall be remanded to the Superior Court.
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