Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Zip Designs, LLC v. Glowzone Las Vegas, LLC

United States District Court, D. Maryland

March 27, 2019

Zip Designs, LLC
Glowzone Las Vegas, LLC



         This 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).


         Glowzone operates an entertainment facility in Las Vegas that provides customers with "adventure and recreation based entertainment services and products." (Counterclaim ¶ 1, ECF No. 4).[1] 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)[2]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).

         This 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 down. (Id.).

         On 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).

         Because 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.

         On May 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).


         Federal 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)).


         A. Glowzone's Motion for Summary Judgment

         Glowzone 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


         1. Breach of contract and breach of express warranty

         Glowzone's 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).

         Here, 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.

         a. Breach of contract

         "To 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.