United States District Court, D. Maryland
CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE.
dispute arises from a contract between Zip Designs, LLC
("Zip Designs") and Glowzone Las Vegas, LLC
("Glowzone") for the construction of three
elements-a Ninj a Warrior Course, a Pole Walk, and a Drop
Slide-at Glowzone's Las Vegas recreational facility.
Currently pending before the court are Glowzone's motion
for summary judgment and Zip Designs' cross-motion for
summary judgment. For the reasons outlined below, the court
will grant in part and deny in part Glowzone's motion and
grant in part and deny in part Zip Designs' motion. The
issues have been briefed and no oral argument is necessary.
See Local Rule 105.6 (D. Md. 2018).
operates an entertainment facility in Las Vegas that provides
customers with "adventure and recreation based
entertainment services and products." (Counterclaim
¶ 1, ECF No. 4). Zip Designs designs, manufactures, and
installs "adventure and recreational products."
(Am. Compl. ¶ 6, ECF No. 25). On July 6, 2016, the
parties entered into a Construction Contract for three
elements: a Ninja Warrior Course, - a Pole Walk, and a Drop
Slide. (Def.'s Mot. Summ. J. Ex 1 ["Construction
Contract"], ECF No. 52-3)Glowzone agreed to pay $150,
649.00 for the manufacturing and shipping of the three
elements. (Id.) The parties estimated that labor for
installation would cost an additional $13, 450.00.
(Id.). The total amount due was to be paid according
to a payment schedule set out in the Construction Contract.
(Id. at 1). On September 8, 2016, the parties
modified the payment schedule so that all but $49, 229.70
would be paid prior to the installation of the elements, and
the remaining $49, 229.70 would be divided into three
installments of $16, 409.90, to be paid on the 30th, 60th,
and 90th day after "installation completion."
(PL's Mot. Summ. J. Ex 7a-7b ["Modification"]
at 24, ECF No. 53-4).
dispute centers around the Drop Slide, an "approximately
thirty-five foot tall curved slide affixed with an overhead
winch located behind the slide." (Mem. P. & A. Supp.
Def.'s Mot. Summ. J. ["Def.'s.'s Mot"]
at 1, ECF No. 52-1). To use the slide, Glowzone patrons lie
at the bottom of the slide and grasp a metal bar that is
attached to the winch by a winching cable. (Id. at
1-2). The winch then becomes engaged and lifts the winching
cable upwards towards the top of the slide, pulling the
customer along with it. (Id.). Once they reach the
top of the slide, customers release the metal bar and slide
January 26, 2017, six days after the Drop Slide was put into
service, the winch motor and assembly failed. (Id;
Mem. P. & A. Supp. PL's Mot. Summ J. ["PL's
Mot."] at 12, ECF No. 53-1). All of the motor bolts in
the winch were sheared off and the winching cable went slack.
(Def.'s Mot. at 2). The Drop Slide has remained
out of service since this time. (Id.). Around
February 1, 2017, Zip Designs hired Reliable Pump Inc.
("Reliable") to inspect and repair the winch.
(Id.). On February 3, 2017, Reliable informed Zip
Designs that the winch failed because of excessive torque.
(Id.). Reliable also told Zip Designs that it had
contacted Thern, Inc. ("Thern") the manufacturer of
the winch, and Thern told Reliable that they should not
repair the winch because it was being misused.
(Id.). Specifically, Thern noted that the winch
"was being used for an application unsuitable for the
motor." (Id.). And Reliable also noted that a
warning sticker on the winch indicated that it should not be
used to "lift people, or things over people."
(Id.). Thern's manual for the winch also warns
against using the winch to "lift people, or things over
people." (Def's Mot Ex. 7 ["Thern Winch
Manual"] at 3, ECF No. 52-9).
Zip Designs' warranty covered the winch motor and
assembly, Zip Designs offered to: (1) repair the defective
winch; or (2) replace the motor with a comparable motor and
replace the defective winch with a similar winch; or (3)
replace the defective winch with a winch rated for human life
support at Glowzone's expense. (PL's Mot. at 12-13;
Hornick Decl. I ¶ 18, ECF No. 53-3 at 5; Whited Dep.
285:15-21; 300:10-15, ECF No. 53-2 at 43-44). Glowzone
rejected all three of these options. (Whited Dep.
299:9-301:8). The parties do not dispute that the winch
failed because of a manufacturing defect. (Hornick Dep.
160:4-10, ECF No. 52-4; Deibel Dep. 92:10-16, ECF No. 52-8).
Instead, this dispute turns on whether, even absent a
manufacturing defect, the winch provided by Zip Designs was
not suitable for use in the Drop Slide.
15, 2017, Zip Designs removed its suit against Glowzone from
the Circuit Court for Baltimore County to this court. (ECF
No. 2). On November 27, 2017, Zip Designs filed an amended
complaint, alleging: breach of contract (Count I); unjust
enrichment (Count II); and quantum meruit claims. (ECF No.
25), On May 15, 2017, Glowzone filed a counterclaim alleging:
breach of contract (Count I); unjust enrichment (Count II);
design defect (Count III); fraudulent misrepresentation
(Count IV); fraudulent concealment (Count V); negligent
misrepresentation (Count VI); breach of express warranty
(Count VII); and breach of implied warranties (Count VIII).
(ECF No: 4).
Rule of Civil Procedure 56(a) provides that summary judgment
should be granted "if the movant shows that there is no
genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a) (emphases added). "A dispute is
genuine if 'a reasonable jury could return a verdict for
the nonmoving party."' Libertarian Party o/Va.
v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting
Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330
(4th Cir. 2012)). "A fact is material if it 'might
affect the outcome of the suit under the governing
law.'" Id. (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). Accordingly,
"the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment[.]"
Anderson, 477 U.S. at 247-48., The court must view
the evidence in the light most favorable to the nonmoving
party, Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014)
(per curiam), and draw all reasonable inferences in that
party's favor, Scott v. Harris, 550 U.S. 372,
378 (2007) (citations omitted); see also Jacobs v. K C.
Admin. Office of the Courts, 780 F.3d 562, 568-69 (4th
Cir. 2015). At the same time, the court must "prevent
factually unsupported claims and defenses from proceeding to
trial." Bouchat v. Bait. Ravens Football Club,
Inc., 346 F.3d 514, 526 (4th Cir. 2003) (quoting
Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir.
1993)). When the parties have filed cross-motions for summary
judgment, the court must "review each motion separately
on its own merits to 'determine whether either of the
parties deserves judgment as a matter of law."'
Rossignol v. Voorhaar, 316F.3d516, 523 (4th Cir.
2003) (quoting Philip Morris Inc. v. Harshbarger,
122 F.3d 58, 62 n.4 (1st Cir. 1997)).
Glowzone's Motion for Summary Judgment
has moved for summary judgment as to its breach of contract,
breach of express warranty, and breach of the implied
warranty of merchantability and the implied warranty of
fitness for particular use counterclaims. (Def.'s Mot. at
8-17). The parties do not dispute that, as specified in the
Construction Contract, Maryland law governs this case.
(Construction Contract at
Breach of contract and breach of express warranty
breach of contract and breach of express warranty claims
arise out of three representations by Zip Designs in the
Construction Contract: (1) that "performance of the Work
would be of good quality, free from faults and defects";
(2) that Zip Designs would "supervise and direct the
Work, using its best skill and attention" and take sole
responsibility for all "construction means, methods,
techniques, sequences and procedures"; and (3) that if
"within two (2) years from the date of completion of the
Work, any of the Work is found to be defective, [Zip Designs]
shall correct it promptly." (Construction Contract at
1-2). The dividing line between a contractual obligation and
an express warranty is fine. But, generally, a promise
"to do an act in the future is a contractual
obligation," while "a statement . . . that assures
the quality, description, or performance of the property
constitutes an express warranty." Hartford Ace.
& Indent. Co. v. Scarlett Harbor Assocs. Ltd.
Partnership, 109 Md.App. 217, 246 (1996) (citing
Antigua Condominium Assocs. v. Melba Investors Atlantic,
Inc., 307 Md. 700, 715 (1986)); see also McCartyv.
EJ. Kon>ette, Inc., 28 Md.App. 421, 427 (1975).
the first two representations assure Glowzone of the quality
of the three elements and the level of skill and care that
Zip Designs will employ in their construction. The final
representation is a promise to make repairs in the future.
Accordingly, the court will construe the first two
representations as express warranties, and the final
representation as a contractual obligation. The Court notes,
however, that whether these provisions are characterized as a
warranty or a contractual obligation, there is a dispute of
material fact about whether the winch supplied by Zip Designs
is suitable for use in the Drop Slide.
Breach of contract
prevail in an action for breach of contract, a plaintiff must
prove that the defendant owed the plaintiff a contractual
obligation and that the defendant breached that
obligation." Taylor v. NationsBank, N.A., 776
A.2d 645, 651 (Md. 2001). "Construction of a contract
is, in the first instance, a question of law for the court to
resolve." Shapiro v. Massengill, 105 Md.App.
743, 754 (Md. Q..Spec. App. 1995) (citing Suburban Hosp.
v. Dwiggins,324 Md. 294, 306 (1991)). Maryland follows
the objective law of contracts. Gen. Motors Acceptance
Corp. v. Daniels,303 Md. 254, 261 (1985). Consequently,
where the language of the contract is "plain and
unambiguous," the Court "must presume that the
parties meant what they expressed." See Id. A
contract is ambiguous if, "when read by a reasonably
prudent person," it is susceptible to more than one
meaning. Calomiris v. Woods,353 Md. 425, 436 ...