After returning from a skiing vacation in Vermont, Leslie Adel came down with Legionnaire’s Disease. He claimed it was from the water drunk at the ski resort and provided by Greensprings of Vermont Inc. The novel questions presented are (1) is water a good under the UCC Article 2 or a service of “providing water”
and (2) if it is a good and falls under UCC Article 2, does this situation fall under the application of the implied warranty of merchantability?
The court first succinctly laid out the pertinent and compelling facts:
Together with their two children and eight friends, Leslie and Joanne Adel went on a ski vacation in southern Vermont from February 3 through February 7, 1999. The vacationers stayed in Unit 24 at Greenspring. Greenspring is a townhouse condominium owned by Thomas and Charlene Fallarco. The townhouse condominium is part of a larger complex developed by defendant Greensprings. Greensprings owns and maintains the water supply for the Greenspring condominiums. Greensprings also owns and maintains common areas of the complex such as a swimming pool and spa at the Greenspring recreation center. While he was in Vermont, Leslie Adel (Adel) used the swimming pool and spa at the Greenspring recreation center as well as the bathrooms, showers and a bathtub jacuzzi in Unit 24.
On February 9, 1999, two days after he returned from his ski vacation, Adel began to experience flu-like symptoms. Unfortunately, his condition steadily worsened and he was transferred to the Hospital of the University of Pennsylvania on February 16.
On February 17, a physician took a sputum specimen from Adel’s lungs. The hospital laboratory cultured Legionnella pneumonphila from that specimen on February 23. As a result, Adel was diagnosed as suffering from Legionnaire’s disease. Adel was hospitalized at the Hospital of the University of Pennsylvania for six weeks. His bout with Legionnaire’s disease was serious and included 45 days in a coma. Adel claims to have suffered permanent injuries as a result of contracting Legionnaire’s disease.
On February 23, 1999, Nancy Thayer of the epidemiology division of the Vermont Department of Health (DOH) received a report that Adel had Legionnaire’s disease. Ms. Thayer began an investigation into the possible sources of Adel’s illness.
The primary means of transmission of Legionnaire’s disease is the inhalation of aerosolized water droplets containing the Legionnella pneumonphila bacteria. The incubation period for Legionnaire’s disease is usually between 2 and 14 days. Thus, Adel’s Vermont vacation fell within the potential incubation period.
In addressing the first question, the court opined and held that water is indeed a good under UCC Article 2:
The Vermont Supreme Court has not decided whether a water supplier is a “seller” of a “good” under Vermont’s version of the UCC. This Court must therefore predict how the Vermont Supreme Court would rule if it were faced with this question … This is a difficult task as decisions from other state courts are divided. Nevertheless, the Court is persuaded by the reasoning of those decisions finding that water suppliers are sellers of goods under Article 2 of the UCC.
As to the second issue of the applicability of the implied warranty of merchantability, the court ruled The situation is less clear when we turn to the question of whether water suppliers can be held liable for a breach of the warranty of merchantability. The issue is complicated by the fact that two courts have held that, even though the furnishing of water is covered by the UCC, the warranty of merchantability does not apply … This Court rejects [this] approach … If the furnishing of water is covered by Vermont’s version of the UCC then the warranty of merchantability should apply. The statute clearly states that “unless excluded or modified (§ 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.” Thus, if a seller of water is a merchant with respect to water, there is an implied warranty. The statute provides no basis to grant a special exemption for sellers of water.
CRITICAL THINKING:
Let’s apply the court’s rationale to the COVID-19 vaccinations. Your local clinic administers the vaccine to you. It turns out that the batch was a bad one and instead of vaccinating you, you are infected. Using the Adel case above, what factors would convince you that the clinic is liable? Is it a “merchantability”
situation? Would a vaccine be considered a “good” under the UCC?
ETHICAL DECISION MAKING:
It seems that the court in the Adel case might have been treating the application of the implied warranty similarly to a strict liability in tort case. Should some kind of fault or wrong-doing have to be proven to hold Greensprings liable? Is it ethical to conclude that since someone has been injured, then someone has to pay, regardless of fault?