CLANCY
v.
OAK PARK VILLAGE ATHLETIC CENTER
Docket No. 76030.
Michigan Court of Appeals.
Decided January 23, 1985.Stern, Milmet, Vecchio, Goll & Carnago, P.C. (by James Wynne), for plaintiff.
Morgan & Fuzak, P.C. (by John F. Fuzak), for defendant.
Before: DANHOF, C.J., and GRIBBS and R.M. SHUSTER,[*] JJ.,
GRIBBS, J.
Plaintiff appeals as of right from the trial court's order granting defendants' motion for summary judgment for plaintiff's failure to state a claim for a breach of an implied warranty of fitness. GCR 1963, 117.2(1). We affirm.
Plaintiff paid a fee for the use of defendants' racquetball court for one hour. During the first fifteen minutes of play, the roof began to leak, forming a puddle of water on the floor of the court. Plaintiff slipped while playing, crashed into the wall and injured his foot. He filed suit alleging negligence and breach of an implied warranty of fitness of the racquetball court. After a hearing on defendants' motion for partial summary judgment, the trial court granted summary judgment for defendants on the warranty claim.
*306 An implied warranty of fitness grounded in tort is a warranty implied in fact or in law. Williams v Detroit Edison Co, 63 Mich. App. 559, 565; 234 NW2d 702 (1975), lv den 395 Mich. 800 (1975); see Piercefield v Remington Arms Co, Inc, 375 Mich. 85; 133 NW2d 129 (1965). It is a mainstay of products liability actions and applies to products which have left the manufacturer's control. Manzoni v Detroit Coca-Cola Bottling Co, 363 Mich. 235, 241-242; 109 NW2d 918 (1961). The Uniform Commercial Code has also codified this warranty to cover goods as defined by the code. Cova v Harley Davidson Motor Co, 26 Mich. App. 602, 610; 182 NW2d 800 (1970); MCL 440.2314; MSA 19.2314. Although such a warranty is usually applied in the context of articles which have been sold or purchased,[1] it has been extended to articles which have been leased or bailed. Jones v Keetch, 388 Mich. 164; 200 NW2d 227; 91 ALR3d 471 (1972).
Plaintiff contends that the warranty of fitness is not limited to movable products and goods and should be extended to the racquetball court. He points to the extension of this warranty to services, Williams, supra, as well as realty. Weeks v Slavik Builders, Inc, 24 Mich. App. 621; 180 NW2d 503 (1970), aff'd 384 Mich. 257 (1970). The holdings in those cases, however, are narrow in application. In Williams the Court applied the warranty of fitness to electricity, not all services, because of its inherent dangers. Buckeye Union Fire Ins Co v Detroit Edison Co, 38 Mich. App. 325, 330; 196 NW2d 316 (1972). In Weeks, supra, a warranty of fitness was applied to the sale of new residential homes, but the Court expressly limited its holding to the sale of new residential homes, not to all sold or leased realty. Weeks, pp 627-628.
*307 Plaintiff also relies on Jones, supra, for his argument that an implied warranty of fitness should be extended to the rental of the racquetball court. In Jones, a motel guest was injured when the chair in which he was seated collapsed. The guest sued the motel operators for negligence and breach of implied warranty of fitness, claiming that the chair in his room was defective. The Supreme Court applied the general rule of the common law regarding an implied warranty of fitness of a bailed chattel:
"It is the general rule that, in the absence of an agreement to the contrary, the bailor of a chattel to be used by the bailee for a particular purpose known to the bailor, impliedly warrants the reasonable suitability of the chattel for the bailee's known intended use of it. The rule of implied warranty has been adopted by statute in some jurisdictions. The implied warranty is said to be raised by the delivery of the chattel to the bailee, where the quality or fitness of the article for the use specified is not visible and the defect is not discernible by an ordinary observer. As a warranty against defects it has been said to extend to such faults and defects as would entirely prevent the contemplated use and enjoyment of the bailment, or render it dangerous, but not to those which would merely diminish its convenience and appropriateness for the use designed." Jones, supra, p 168, citing 8 Am Jur 2d, Bailments, § 157 Implied warranty of fitness, pp 889-890.
The Jones Court also relied on Schnitzer v Nixon, 439 F2d 940 (CA 4, 1971), a case with a nearly identical fact pattern, and referred to the language in Schnitzer, p 942, that an implied warranty of fitness is a "fair placement of the innkeeper's responsibility to a guest under his roof".
Plaintiff points out that Jones applied a warranty of fitness to a leased chattel, and that since *308 the term "chattel" includes chattels real,[2]Jones can be extended to cover the rental of a premise. Although the Jones Court did not distinguish between chattels real and chattels personal, we find that the Jones case does not support plaintiff's position. The facts in Jones involved a chattel personal, i.e., the chair. The general rule (cited above) relied upon in Jones described the warranty of fitness in terms of the "quality or fitness of the article", which would further indicate a chattel personal. The ALR annotation cited and relied upon by the Jones Court also dealt with chattels personal. Anno: Warranties in connection with leasing or hiring of chattels, 68 ALR2d 850. Furthermore, although the innkeeper warranty language from Schnitzer, supra, cited above and quoted by Jones could be read to imply a warranty of fitness to leased premises, Schnitzer applied the warranty to a chair in a motel room, not to the general premises. Schnitzer, supra, pp 940-941. Thus, we are not convinced that Jones supports the proposition that leased chattels real or premises carry a general implied warranty of fitness. See Ely v Blevins, 706 F2d 479 (CA 4, 1983), which cited Schnitzer and Jones and found that no implied warranty of fitness for leased premises was imposed on innkeepers in the Fourth Circuit.
The case law in Michigan does not support plaintiff's claim of breach of implied warranty of fitness of the racquetball court. Although we recognize *309 that a consumer's claim for a breach of an implied warranty of fitness is a remedy essentially fashioned and extended by the courts, Cova, supra, p 610, we decline to extend it to the facts presented.[3] Our decision does not relieve defendants of all liability for plaintiff's injury. Plaintiff may pursue his suit on a negligence theory.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] However, the purchaser of the article need not be the one invoking the warranty; no privity is required. Piercefield, supra, p 98.
[2] A chattel is defined as: "An article of personal property; any species of property not amounting to a freehold or fee in land [i.e., a leasehold]. * * * A thing personal and movable. * * * Things which in law are deemed personal property, they are divisible into chattels real and chattels personal." Black's Law Dictionary, p 299 (rev 4th ed, 1968), (citations omitted). Personalty is defined as: "Personal property; movable property; chattels" and quasi personalty is defined as "fictitiously, as chattels-real, leases for years, etc." Black's Law Dictionary, supra, p 1301.
[3] We note that a few jurisdictions have extended an implied warranty of fitness to leased commercial property. See Anno: Modern status of rules as to existence of implied warranty of habitability or fitness for use of leased premises, 40 ALR3d 646; Reste Realty Corp v Cooper, 53 NJ 444; 251 A2d 268 (1969).