The appellee, John Klages, was employed as a night auditor at Conley's Motel. He worked from 11:00P.M.until 7:00A.M.,five days a week. On March 30, 1968, at approximately 1:30A.M.,two individuals entered the motel and announced, "This is a stickup. Open the safe." Klages indicated that he was unable to open the safe because he did not know the combination. One of the individuals then pointed a gun at Klages's head and pulled the trigger. Fortunately for Klages, the gun was a starter pistol and he was not seriously injured.

The next day Klages and a fellow employee, Bob McVay, decided that they needed something to protect themselves against the possibility of future holdups. After reading an article concerning the effects of mace, McVay suggested that they investigate the possibility of using mace for their protection. McVay secured four leaflets describing certain mace weapons from the Markl Supply Company. The leaflets were distributed to retail outlets by General Ordnance Equipment Corporation. The literature indicated that three different types of mace weapons were available. Two of the weapons were too large for Klages's and McVay's purposes, but the third, the MK-II, which resembled a thick pen, was easily concealable and otherwise appeared to meet their requirements. The literature contained, in pertinent part, the following description of the mace's effectiveness:

Rapidly vaporizes on face of assailant effecting Instantaneous incapacitation.... It will Instantly stop and subdue entire groups ... Instantly stops assailants in their tracks ... an attacker is Subduedinstantly, for a period of 15 to 20 minutes.... Time Magazine stated the Chemical Mace is "for police the first, if not the final, answer to a nationwide needa weapon that Disables as effectively as a gun and yet does no permanent injury".... The effectiveness is the result of a unique, Incapacitating formulation (patent pending), projected in a shotgun-like pattern of heavy liquid droplets that, upon contact with the face, cause extreme tearing, and a Stunned, winded condition, often accompanied by dizziness and apathy.

After reading and discussing the literature with their employer, McVay purchased an MK-II mace weapon from Markl Supply Company. In fact, the Markl Supply Company required a letter of authorization from McVay's employer before allowing the purchase, which was paid for by the motel.

At approximately 1:40A.M.,on the morning of September 22, 1968, while Klages was on duty, two unknown individuals entered the motel office and requested a room. After Klages had placed a registration form in front of one of the men and had turned to secure a room key, the individuals announced a stickup. One of the intruders took out a gun and directed Klages to open the safe. Klages, planning to use the mace before the intruder used the gun, moved from the counter to the cash register where the mace was kept. Using the cash register as a shield, Klages squirted the mace, hitting the intruder "right beside the nose." Klages immediately ducked below the register, but the intruder followed him down and shot him in the head. The intruders immediately departed and Klages called the police. The bullet wound caused complete loss of sight in Klages's right eye.¹Links to an external site.

1. Did the manufacturer of the mace pen, General Ordnance Equipment Corporation, make any express warranties?
2. If so, is General Ordnance Equipment Corporation liable for breach of warranty? Does it matter that the mace pen was purchased from a retailer and not the manufacturer itself?
3. Does it matter that Klages himself did not purchase the mace pen?