Lakeview Country Club, Inc. v. Superior Products

LAKEVIEW COUNTRY CLUB, INC. and Don Parker v.
SUPERIOR PRODUCTS and Innovative Coating
Products

95-170                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered July 1, 1996


1.   Motions -- motion for directed verdict -- factors on review. -
     - In reviewing an order granting a motion for directed
     verdict, the appellate court views the evidence most favorably
     to the party against whom the verdict was directed; if any
     substantial evidence exists that tends to establish an issue
     in favor of that party, it is error for the trial court to
     direct a verdict and take the case from the jury.  

2.   Torts -- strict liability requires proof that product is
     defective -- when such proof not needed. -- Proof that the
     product was defective is an essential element of a cause of
     action based on strict liability; however, proof of a specific
     defect is not required when common experience teaches that the
     accident or damage would not have occurred in the absence of
     a defect.

3.   Torts -- strict-liability argument meritless -- no proof
     presented that product was defective. -- Appellants' arguments
     with respect to strict liability were wholly without merit
     where no evidence was presented that the product was
     defective; here, it could not be said that the coating would
     not have chipped in the absence of a defect because there are
     many reasons why paint peels; given the absence of any proof
     that the product was defective, the trial court did not err in
     directing a verdict for appellee on the strict-liability
     claim. 

4.   Products liability -- breach of warranty of merchantability --
     what is necessary to sustain claim of. -- To sustain a claim
     for breach of warranty of merchantability, a plaintiff must
     prove that he sustained damages, that the product was not fit
     for its ordinary purpose, that the unfitness was the proximate
     cause of his damages, and that he is someone reasonably
     expected to use the product.

5.   Products liability -- factors necessary to sustain claim for
     breach of implied warranty of merchantability not present --
     argument disposed of summarily. -- Appellants' argument
     concerning breach of an implied warranty of merchantability
     was summarily disposed of because there was absolutely no
     proof whatsoever of the ordinary purpose of the product; on
     the record before the supreme court, it was impossible to
     determine whether the purpose of the product was for swimming
     pools or space shuttles; moreover, appellants did not even
     allege what they claimed the ordinary purpose of the product
     to be.

6.   Products liability -- no proof product not fit for purpose
     stated by appellants -- trial court did not err in directing
     verdict for appellee. -- Even assuming, as appellees stated in
     their brief, that the ordinary purpose of the product was to
     coat swimming pools, there was no proof that the product was
     not fit for that purpose; there was only proof that the
     product cracked and peeled from appellants' swimming pool,
     which may have indicated a problem with the product's
     application; thus, the supreme court could not say the trial
     court erred in directing a verdict for the appellee.

7.   Appeal & error -- no duty to warn or instruct found at trial -
     - no citation to applicable law -- issue not reached. --
     Appellants' contention that the product should have been
     accompanied by some warning or instruction not to apply it
     over chlorinated rubber or latex paint was merely an
     allegation without citation to any authority; nor did
     appellants cite authority stating under what facts and
     circumstances the duties arose; the supreme court will not do
     appellants' research for them; the question of what duty is
     owed is always a question of law; the trial court never
     determined that appellees owed appellants a duty to warn or
     instruct, thus, there was no ruling to review even if there
     had been a citation to applicable law.

8.   Judgment -- no substantial evidence tending to establish an
     issue in appellants' favor -- judgment directing verdict for
     appellee affirmed. -- Where there was no substantial evidence
     tending to establish an issue in favor of appellants, the
     court affirmed the judgment directing a verdict for appellee.

9.   Appeal & error -- review on appeal limited to the record as
     abstracted in briefs -- no evidence of record upon which court
     could conclude trial court erred in directing a verdict in
     appellee's favor. -- Appellants' argument that an admission by
     a party in an answer need not be proven by other evidence in
     order to create a fact question was unsuccessful where the
     abstract did not indicate that the third defendant made such
     an admission in his answer; review on appeal is limited to the
     record as abstracted in the briefs, not upon one transcript,
     because there are seven judges involved in the supreme court's
     decision; here, in the record as abstracted, there was no
     evidence of any connection between this defendant and one of
     the appellees; in addition, the record as abstracted did not
     establish that the appellee was the supplier of the product at
     issue; thus, the trial court did not err in directing a
     verdict for that appellee. 

10.  Appeal & error -- appellee's involvement in case unsupported
     by proof -- directed verdict in appellee's favor not error. --
     Given the lack of proof concerning the involvement of appellee
     in the case, the appellate court could not conclude the trial
     court erred in directing a verdict for that appellee. 


     Appeal from Pulaski Circuit Court, Third Division; John Ward,
Judge; affirmed.
     Tona M. DeMers, for appellants.
     James W. Tilley, for appellees.

     Donald L. Corbin, Justice.Associate Justice Donald L.
Corbin, 7-1-96   *ADVREP*SC5*





LAKEVIEW COUNTRY CLUB, INC. and
DON PARKER
                    APPELLANTS,

V.

SUPERIOR PRODUCTS and
INNOVATIVE COATING PRODUCTS,
                    APPELLEES,



95-170



APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT, THIRD DIVISION,
NO. CV 93-6325,
HON. JOHN WARD, JUDGE,



AFFIRMED.





     Appellants, Don Parker and Lakeview Country Club,
Incorporated, appeal a judgment of the Pulaski County Circuit Court
dismissing with prejudice their claims against separate appellees,
Superior Products, Innovative Coating Products, and Don Muse,
arising from the application of a coating product to appellants'
swimming pool.  Appellants raise two points for reversal of the
judgment.  The court of appeals certified this case to us as one
involving a question about the law of torts.  Ark. Sup. Ct. R. 1-
2(a)(16), and (d)(1).  We find no merit to the appeal and affirm.
     The judgment from which appellants appeal states that after
appellants had rested their case as plaintiffs, the trial court
granted motions for directed verdicts to separate appellees,
Superior Products, the alleged manufacturer of the coating product
at issue, and Innovative Coating Products, the alleged supplier of
the coating product.  The judgment also states that appellants'
cause of action against appellee Don Muse was then submitted to the
jury, which returned a verdict for Muse.
     Appellants' entire case at trial consisted of only two
witnesses:  Appellant Don Parker, lessee-owner and manager of
appellant Lakeview Country Club, and Stephen G. Littleton, a member
of Lakeview Country Club who repaired the pump on the swimming
pool.  After the trial court granted the directed verdicts,
appellee Muse did not present any evidence.  Thus, Parker and
Littleton were the only witnesses in this case.  We relate their
testimonies in detail to illustrate the total failure of proof in
this case.
     Appellant Parker testified to the following.  He leased
appellant Lakeview Country Club in July 1991 and later became the
current owner of the club.  His intention to repair the swimming
pool became known to appellee Muse.  Appellee Muse was a country
club member who told Parker that he "had the best product in the
world" to coat the pool with, that the product had been used on
space shuttles, and that the product could be used on the deck
around the pool because it would not get hot from the sun. 
Appellee Muse supplied the coating product to appellants.
Appellants paid appellee Muse $4,603.75 for the product, and
appellee Muse supervised other members of the club who applied the
coating.  
     According to appellant Parker, the following facts occurred
after the coating was applied.  The pool sat empty for two or three
weeks, then the coating began to crack and peel.  Appellee Muse
went to Kansas City to obtain additional product and applied it to
the pool.  After the pool was filled with water, the coating again
cracked and peeled.  Some of the persons who swam in the pool cut
their feet on the broken patches.  Use of the pool by members
declined.  Appellant Parker talked with J.E. Pritchett of Superior
Products in Kansas.  Pritchett sent some people to examine and test
the chips.  Pritchett then told appellant Parker that the reason
the coating chipped was because the pool had previously been coated
with a latex base and his product would not stick to a latex base. 
There was no warning or instruction on the label of the container
concerning the fact that the product would not adhere to a latex
base.  Likewise, there were no instructions provided by appellee
Muse stating not to apply the product over latex paint.  No one
from Superior Products or Innovative Coating Products, including
appellee Muse, informed appellants that the coating should not be
applied over a latex paint, nor did anyone inquire as to what had
been previously applied to the pool.  Appellee Mr. Muse portrayed
himself as an expert and professional in this field.  After the
coating chipped, membership dues decreased by $3,000.00 per month. 
     Mr. Littleton testified that the company he worked for made
repairs totaling $308.59 to the pump.  He stated that the repairs
were needed because pieces of the chipped coating had become lodged
in the pump, which prevented the pump from creating a vacuum to
pull the water through the filter.  Mr. Littleton informed
appellants that the problem with the pump would be on-going as long
as there was foreign material in the water coming through the
filter system.  Mr. Littleton also stated that, as a club member,
he did not want his family swimming in the pool because he was
concerned about them getting cut. 
     At the close of appellants' case, appellee Superior Products
moved for directed verdict on the bases that appellants had not
proven that the product was defective, that the product was
rendered unreasonably unsafe because of a defect, and that any
defect was the proximate cause of their injuries.  The trial court
granted the motion, stating that there was no evidence that
appellee Mr. Muse represented appellee Superior Products, that
appellee Superior Products was the manufacturer of the coating
product, and that the product was defective.  In short, the trial
court stated, "I see just a complete lack of evidence to support
the claim against Superior and I will direct a verdict for
Superior[.]"  As to the other appellees, Muse and Innovative
Coating Products, the trial court stated it would not direct a
verdict for appellee Muse.  However, because the trial court found
that there was no proof of any connection between Muse and
Innovative Coating Products, it directed a verdict for appellee
Innovative Coating Products.  This appeal is from the direction of
these two verdicts, the essence of the appeal being that the entire
case should have been submitted to the jury.
     In reviewing an order granting a motion for directed verdict,
we view the evidence most favorably to the party against whom the
verdict was directed.  Higgins v. General Motors Corp., 287 Ark.
390, 699 S.W.2d 741 (1985).  If any substantial evidence exists
that tends to establish an issue in favor of that party, it is
error for the trial court to direct a verdict and take the case
from the jury.  Id.  
                      I.  SUPERIOR PRODUCTS
     Appellants' first argument for reversal of the judgment is
that the trial court erred in directing a verdict for Superior
Products on the claims of strict liability, breach of the implied
warranty of merchantability, and breach of the duties to instruct
and warn.  We consider each claim separately.
                      A.  STRICT LIABILITY
     Appellants argue their claims for strict liability should have
been submitted to the jury because they proved Superior Products
was the manufacturer by way of a photograph showing a container of
the product bearing a label with the name "Superior Products
International II."  This photograph was admitted during appellant
Parker's testimony, wherein he identified the container as the one
containing the product used on his pool.  The label on the
container states in its entirety:
                        Superior Products
                        International II
                            Product:
                      #ME-0508  Light Blue
                           TOTAL-SEAL
                    Semi-Gloss Epoxy Coating
                              *BASE

                            WARNING!
                        FLAMMABLE LIQUID!
             Contains Ketone, and Aromatic Solvents

           Manufactured for Superior Products Intl. II
                  Salinas, KS     Batch #051492

                     Mix Ratio (by Volume):
                  1 part #913/53 *CURING AGENT
                   4 parts #ME-0508      *BASE

                  Induction Period: 15 minutes
                    Pot Life: 8+ hours @ 75 F

Appellants also rely on that portion of appellant Parker's
testimony relating his conversations with Pritchett concerning
Pritchett's explanation for the reason the coating chipped. 
Finally, appellants rely on appellant Parker's testimony that some
of the persons who swam in the pool cut their feet on the chips and
on Littleton's testimony that the repairs to the pump were required
because pieces of the coating product had lodged in the pump.  
     Appellants' arguments with respect to strict liability are
wholly without merit.  Granted, the evidence relied on by
appellants establishes that the product did not adhere to the pool
because it was applied over a latex base and that it caused injury
to some people's feet.  However, this is not evidence that the
product was defective.  As appellees point out, if this evidence
proves anything, it proves only that the product was misused.  
     Proof that the product was defective is an essential element
of a cause of action based on strict liability.  Ark. Code Ann.
 4-86-102(a)(2) (Repl. 1966); Higgins, 287 Ark. 390, 699 S.W.2d 741. However, proof of a specific defect is not required when
common experience teaches that the accident or damage would not
have occurred in the absence of a defect.  Id.  Here, we cannot say
that the coating would not have chipped in the absence of a defect
because, as the trial court stated, "there [could] be fifty reasons
why paint peels[.]"  A couple of reasons that come to mind are
misuse and improper application.  Thus, proof of a defect was
required in this case.  
     Given the absence of any proof that the product was defective,
we cannot say the trial court erred in directing a verdict for
appellee Superior Products on the strict liability claim.  Further,
given the absence of proof of defect, we need not determine whether
the remaining elements of liability were established.
             B. IMPLIED WARRANTY OF MERCHANTABILITY
     To sustain a claim for breach of warranty of merchantability,
a plaintiff must prove that he sustained damages, that the product
was not fit for its ordinary purpose, that the unfitness was the
proximate cause of his damages, and that he is someone reasonably
expected to use the product.  E.I. DuPont de Nemours and Co. v.
Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983).  We dispose of this
argument summarily because there was absolutely no proof whatsoever
of the ordinary purpose of this product.  On the record before us,
we cannot determine whether the purpose of the product was for
swimming pools or space shuttles.  Moreover, appellants do not even
allege what they claim the ordinary purpose of this product to be. 
Without this proof, we simply cannot determine whether there was
any breach of the warranty of merchantability.  
     Even assuming, as appellees state in their brief, that the
ordinary purpose of this product was to coat swimming pools, there
was no proof that the product was not fit for that purpose.  Again,
there was only proof that the product cracked and peeled from
appellants' swimming pool which may indicate a problem with the
product's application.  Thus, we cannot say the trial court erred
in directing a verdict for Superior Products.
                 C.  DUTIES TO WARN AND INSTRUCT
     Essentially, appellants contend this product should have been
accompanied by some warning or instruction not to apply it over
chlorinated rubber or latex paint.  Appellants merely allege that
the duties to warn or instruct existed in this case.  They do not
cite any authority to support this allegation, nor do they cite
authority stating under what facts and circumstances these duties
arise.  We will not do appellants' research for them.  Forrest v.
Ford, 324 Ark. 27, 918 S.W.2d 162 (1996).  The question of what
duty is owed is always a question of law.  First Commercial Trust
Co. v. Lorcin Eng'g, Inc., 321 Ark. 210, 900 S.W.2d 202 (1995).  In
this case, the trial court never determined that appellees owed
appellants a duty to warn or instruct.  Thus, there is no ruling
for us to review even if we had been cited to applicable law.
     Appellants do cite authority for the proposition that the
adequacy of a warning label is generally a question for the jury,
Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992).
However, according to appellant Parker's testimony, there were no
warnings or instructions that accompanied this product.  Thus,
there were no labels or instructions for the jury to determine the
adequacy of, and appellants' reliance on Bushong is misplaced.  
     We conclude there was no substantial evidence tending to
establish an issue in favor of appellants.  Accordingly, we affirm
the judgment directing a verdict for appellee Superior Products.
                II.  INNOVATIVE COATING PRODUCTS
     Appellants' second argument for reversal is that the trial
court erred in directing a verdict for appellee Innovative Coating
Products on their claims of strict liability, breach of warranty of
fitness for a particular purpose, and breach of warranty of
merchantability.  The trial court directed the verdict for appellee
Innovative Coating Products because appellants did not offer any
evidence that appellee Muse owned appellee Innovative Coating
Products or that Muse's conduct was imputed to Innovative Coating
Products.  In defense of the motion, appellants stated that Muse
admitted ownership of Innovative Coating Products in the answer he
filed on behalf of both himself and Innovative Coating Products. 
The trial court stated that such an admission could not be
considered as evidence.
     While we are sympathetic to the essence of appellants'
argument, which is that an admission by a party in an answer need
not be proven by other evidence in order to create a fact question,
see, e.g., Twin City Corp. v. Riggins, 278 Ark. 411, 646 S.W.2d 10
(1983), we cannot conclude the trial court erred in this respect
because the abstract does not indicate that Muse made such an
admission in his answer.  It is well-established that our review on
appeal is limited to the record as abstracted in the briefs, not
upon one transcript, because there are seven judges involved in our
decision.  Kearney v. Committee on Professional Conduct, 320 Ark.
581, 897 S.W.2d 573 (1995).  On this record as abstracted, there is
no evidence of any connection between Muse and appellee Innovative
Coating Products.  In addition, this record as abstracted does not
establish that Innovative Coating Products was the supplier of the
product at issue.  Thus, we cannot conclude the trial court erred
in directing a verdict for appellee Innovative Coating Products.
     Given the lack of proof concerning the involvement of appellee
Innovative Coating Products in this case, we would only be
speculating if we attempted to review appellants' claims of strict
liability, breach of warranty of merchantability, and breach of
warranty of fitness for a particular purpose.  We will not so
speculate.  Therefore, we cannot conclude the trial court erred in
directing a verdict for appellee Innovative Coating Products.
     In summary, appellants failed to prove their case, and the
trial court did not err in directing verdicts for Superior Products
and Innovative Coating Products.  Appellants do not challenge the
jury's verdict in favor of appellee Muse.  Accordingly, the
judgment is affirmed.
     DUDLEY, J., not participating.