Investment Properties, Inc. v Lyttle

Investment Properties, Inc. v. Lyttle (98-050); 169 Vt. 487; 739 A.2d 1222

[Filed 27-Aug-1999]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as  formal revision before publication in the Vermont
  Reports.  Readers are requested to notify  the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont  05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to  press.


                                 No. 98-050


Investment Properties, Inc.,	                      Supreme Court
James B. Foster, and Pizzagalli
Construction Company
	                                              On Appeal from
     v.		                                      Chittenden Superior Court

Jonathan Lyttle, Dennis Keefe,	                      November Term, 1998
Lyttle & Keefe Architects, Inc., 
and Keefe Associates, Inc.



Shireen Avis Fisher, J.


       John Davis Buckley and Jeffrey W. White of Theriault & Joslin, P.C.,
  Montpelier,  for Plaintiffs-Appellants Investment Properties, Inc. and
  Foster.

       Allan R. Keyes of Ryan Smith & Carbine, Ltd., Rutland, for
  Plaintiff-Appellant Pizzagalli Construction Co. 

       Michael B. Clapp, Burlington, for Defendants-Appellees.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       JOHNSON, J.   Plaintiffs appeal an order of the superior court
  granting summary  judgment for defendants on the majority of plaintiffs'
  claims. (FN1)  Plaintiffs are Investment  Properties Incorporated (IPI)
  (the project owner of the Overlake Condominium project), James

 

  Foster (IPI's agent), and Pizzagalli (the general contractor for the
  project).  Plaintiffs sued  defendant architects in a variety of capacities
  under theories of negligence, intentional  misrepresentation, negligent
  misrepresentation, and breach of implied and express warranties  arising
  from a failed attempt to correct a problem with deteriorating subfloors in
  the  condominium project.  We affirm in part and reverse and remand in
  part.

       "[S]ummary judgment is appropriate only when the record clearly shows
  that there is no  genuine issue of material fact and that the movant is
  entitled to judgment as a matter of law."   Bacon v. Lascelles, 165 Vt.
  214, 218, 678 A.2d 902, 905 (1996).  The following material facts  are
  undisputed.  IPI was the project owner of the Overlake Condominium project,
  James Foster  was IPI's agent, and Pizzagalli contracted with IPI to be its
  general contractor.  IPI contracted  with architects to provide
  architectural services.  There was no contract between architects and 
  either Foster or Pizzagalli.  In the Spring of 1982, plaintiffs noticed
  that the concrete sub-floors  in the condominium units were deteriorating. 
  The parties, in consultation with one another,  settled on application of a
  material called Ardex K-15 over the surface of the concrete to remedy  the
  situation.  Architects made no affirmative representation concerning the
  suitability of the  Ardex K-15 remedy.  Architects agreed to pay $15,000 -
  the cost of the Ardex K-15 remedy - in  return for a release of all claims
  against them arising out of the "design, installation and  maintenance of a
  lightweight concrete underlayment for carpeting in the Overlake Condominium 
  project."

       The Ardex K-15 remedy was applied, but it also failed in May of 1988. 
  In November of  1988, the Overlake Condominium Homeowners Association
  (OCHA) sued IPI, Foster and  Pizzagalli for damages incurred as a result of
  the defective flooring.  IPI, Foster and Pizzagalli 

 

  filed a third-party complaint against the architects, which was dismissed
  without prejudice.  The  parties to the original litigation settled for
  $150,000.  Architects made no contribution to the  settlement.  As part of
  the settlement, IPI, Foster and Pizzagalli were assigned all the rights of 
  OCHA against the architects.  Plaintiffs now pursue the assigned claims and
  also pursue  architects to recover the settlement sum.

       The current litigation was filed in May 1993.  Plaintiffs alleged on
  behalf of  IPI/Foster  and Pizzagalli (1) a breach of the duty of
  professional care, (2) a breach of express and implied  warranties that the
  materials selected to remedy a problem caused by other faulty materials
  were  suitable for that purpose, (3) fraudulent misrepresentation, (4) and
  negligent misrepresentation.   The warranty claims were based directly on
  the relationship between architects and plaintiffs  while the other claims
  were based on a theory that architects should indemnify plaintiffs for the 
  $150,000 settlement sum paid out to OCHA.  Plaintiffs further alleged on
  behalf of OCHA (1) a  breach of the duty of professional care and (2)
  breach of an implied warranty.

       In their motion for summary judgment, architects argued that there no
  contract existed  between architects and Foster, between architects and
  Pizzagalli, or between architects and  OCHA on which a breach of warranty
  claim could be based.  They additionally argued that they  did not make any
  representations to anyone about the suitability of the Ardex K-15 remedy
  and  that any claims based on the use of lightweight concrete flooring
  material were barred by the   release.  Architects also asserted that the
  three-year statute of limitations applied to plaintiffs'  claims because
  they were claims for personal property, and that this statute of
  limitations had  expired.  See 12 V.S.A. § 512(5).

       The superior court granted summary judgment with respect to the
  majority of plaintiffs' 

 

  claims, concluding that plaintiffs' contractual claims on behalf of
  Pizzagalli failed because there  was no contract, and that those on behalf
  of IPI/Foster failed because of the release.  The court  furthermore held
  that plaintiffs' claims based on indemnification also failed because of the
  release  and because they were claims for personal property and were thus
  subject to the three-year  statute of limitations, which began running when
  OCHA filed the original suit in November of  1988.

       The court held that the rights assigned to plaintiffs to sue on behalf
  of OCHA for failure  of the Ardex K-15 remedy were subject to the six-year
  statute of limitations because the claim  involved interference with use
  and enjoyment of property.  See 12 V.S.A. § 511; Alpstetten  Ass'n, Inc. v.
  Kelly, 137 Vt. 508, 512, 408 A.2d 644, 646 (1979) (six-year statute of
  limitations  applies to action alleging interference with use and enjoyment
  of property because it is not  "injury to the person").  Nonetheless, the
  court concluded that the undisputed facts did not  indicate there was any
  misrepresentation by architects to OCHA, any express warranty, or any 
  basis for finding an implied warranty, because implied warranties are
  applicable only to the  business of selling and not to the business of
  manufacture.  See Bolkum v. Staab, 133 Vt. 467,  470, 346 A.2d 210, 211
  (1975) (implied warranties arise from business of selling, not business  of
  manufacture).  There was no direct contractual basis for finding a breach
  of warranty because  it was undisputed that there was no contractual
  relationship between architects and OCHA.  The  court did not, however,
  grant summary judgment on the claim based on professional negligence 
  asserted on behalf of OCHA because liability under this theory turned on a
  question of fact.

       On appeal, plaintiffs confine their argument to three issues.  Did the
  superior court err  in: (1) applying the three-year statute of limitations
  to plaintiffs' indemnification claims; (2) 

 

  ruling that no warranties could be implied with respect to OCHA because of
  the lack of  contractual privity; and (3) ruling that the release barred
  any claims based on failure of the  Ardex K-15 remedy?


                       I.  The Statute of Limitations

       We first address plaintiffs' contention that the trial court erred in
  applying the three-year  statute of limitations, found in 12 V.S.A. §
  512(5), to bar their indemnification claims.  The trial  court reasoned
  that, because plaintiffs were seeking to recover a sum of money, their
  claim was  one for personal property governed by the three-year statute of
  limitations.  The trial court  reached this conclusion by applying Foucher
  v. First Vt. Bank & Trust Co., 821 F. Supp. 916,  924 (D. Vt. 1993), in
  which the federal district court, applying Vermont law, held that damages 
  for breach of duty as a bailee and the conversion of money assets were
  damages for personal  property governed by the three-year statute of
  limitations.

       The question on appeal then is whether the trial court properly
  determined that an  indemnity action is for damage to personal property. An
  indemnity action is based on "a right  accruing to a party who, without
  active fault, has been compelled by some legal obligation . . .  to pay
  damages occasioned by the negligence of another."  Chapman v. Sparta, ___
  Vt. ___,  ___, 702 A.2d 132, 134 (1997) (quoting Morris v. American Motors
  Corp., 142 Vt. 566, 576,  459 A.2d 968, 974 (1982)).  The right to
  indemnification "exists where one party has expressly  agreed or undertaken
  to indemnify another, or where the circumstances are such that the law 
  implies such an undertaking."  Id.  See also  State v. Stewart's Ice Cream
  Co., 473 N.E.2d 1184, 1186 (N.Y. App. Div. 1984) (in cases where unjust
  enrichment would result from third  party assuming debt or obligation of
  another, contract to reimburse or indemnify is implied by 
       
 

  law).

       There is no statute of limitations specific to indemnity actions. 
  Civil actions in general  are subject to a six-year statute of limitations. 
  See 12 V.S.A. § 511.  Actions for assault and  battery, false imprisonment,
  slander and libel, injury to the person, or damage to personal  property,
  however, are subject to a special three-year statute of limitations.  See
  12 V.S.A. §  512.  Plaintiffs argue that this Court should look to the
  underlying harm - the damage to the  condominiums - in determining the
  applicable statute of limitations.  Under plaintiffs' theory, the 
  indemnification action would be categorized as an action for damage to real
  property as opposed  to personal property and would be subject to the
  general six-year statute of limitations as a result.

       We agree with plaintiffs' theory.  Based on our decision in Union Sch.
  Dist. v. Lench,  134 Vt. 424, 425, 365 A.2d 508, 509 (1976), it is clear
  that the homeowners' association had six  years from the accrual of their
  cause of action to bring that suit.  The facts indicate that their  claim
  accrued in 1988 when the Ardex K-15 "fix" failed.  Applying the same
  limitation period  and date of accrual to the indemnity action as we would
  apply to the underlying action, we  conclude that both the homeowners'
  association suit and this indemnity action were brought  within the
  six-year limitation period from the accrual of the underlying claim.

       The rationale for applying the same statute of limitations to the
  indemnity action as to the  underlying action follows from the legislative
  intent behind our statutes of limitation.  The  United States Supreme Court
  has explained the purpose of statutes of limitation:

     Statutes of limitations . . . represent a pervasive legislative 
     judgment that it is unjust to fail to put the adversary on notice to 
     defend within a specified period of time and that "the right to be 
     free of stale claims in time comes to prevail over the right to 

 

     prosecute them."  Railroad Telegraphers v. Railway Express 
     Agency, 321 U.S. 342, 349 (1944).  These enactments are statutes 
     of repose; and although affording plaintiffs what the legislature 
     deems a reasonable time to present their claims, they protect 
     defendants and the courts from having to deal with cases in which 
     the search for truth may be seriously impaired by the loss of 
     evidence, whether by death or disappearance of witnesses, fading 
     memories, disappearance of documents, or otherwise.

  United States v. Kubrick, 444 U.S. 111, 118 (1979).  The primary concern is
  fairness to the  defendants, who "ought to be secure in [their] reasonable
  expectation that the slate has been  wiped clean of ancient obligations"
  and should not be deprived of the ability to defend because  evidence is no
  longer available.  Developments in the Law - Statutes of Limitation, 63
  Harv. L.  Rev. 1177, 1185 (1950).  The time limits represent a balance,
  affording the opportunity to  plaintiffs to develop and present a claim
  while protecting the legitimate interests of defendants in  timely
  assertion of that claim. 

       In applying these policies to the problem before us, a number of
  points are striking.   First, the Legislature has enacted two
  broadly-applicable limitation periods.  For actions  involving "injuries to
  the person" or "[d]amage to personal property," in either case "by the act 
  or default of another," the Legislature has established a three-year
  statute of limitation.  12  V.S.A. § 512(4), (5).  For most other civil
  actions, the limitation period is six years.  See id. §  511.  As we have
  emphasized in a number of opinions, the three year limitation period is
  based  "upon the nature of the harm for which recovery is sought and not
  upon the nature of the action  brought."  Kinney v. Goodyear Tire & Rubber
  Co., 134 Vt. 571, 575, 367 A.2d 677, 680  (1976).  This characteristic
  distinguishes the § 512(4) and (5) exceptions to the general civil time 
  limit from the many other narrower exceptions the Legislature has created. 
  See, e.g., 12 V.S.A.  § 521 (two-year limitations for medical malpractice).  

 

       Second, without an express indemnity contract, plaintiffs' action is
  based on a  reallocation of the homeowners' loss from the persons whom the
  homeowners sued - that is, the  builders and developers - to the architects
  who specified the building materials.  We allow such  loss shifting as a
  matter of fairness so that the party "without active fault" does not end up 
  shouldering the loss, while the actively-negligent party escapes liability. 
  Peters v. Mindell, 159  Vt. 424, 428, 620 A.2d 1268, 1270 (1992) (quoting
  Morris v. American Motors Corp., 142 Vt.  566, 576, 459 A.2d 968, 974
  (1983)).  Thus, the indemnity claim is not a new cause of action.   Indeed,
  we created indemnity actions as an exception to our policy precluding
  contribution  among or between joint tortfeasors.  See Bardwell Motor Inn,
  Inc. v. Accavallo, 135 Vt. 571,  572-73, 381 A.2d 1061, 1062 (1977).  The
  reallocation of the losses brought about by the  indemnity claim is
  actually the continuation of the homeowners' cause of action by a different 
  plaintiff.  The damages claimed in this case are simply the homeowners'
  damages, as paid by one  group of tortfeasors and asserted against another
  group of alleged tortfeasors.

       Third, the factual issues to be resolved in the trial of this action,
  if a trial is necessary,  relate solely to events that occurred in 1991 and
  1992.  The parties contest whether defendants  were negligent in 1991, and
  again in 1992, in specifying the subfloor materials, whether their 
  relationship at the time was such that indemnity is appropriate and whether
  a release signed by  plaintiffs in 1992 bars the indemnity action.  The
  effect of allowing a long limitation period to  file derivative indemnity
  claims is that accurate fact-finding will be impaired by the passage of 
  time.

       Finally, this rule imposes no unfairness on the plaintiff in an
  indemnity action.  Plaintiffs  in this case were aware from the beginning
  that they might be able to shift the loss to defendants 

 

  and, as a result, joined defendants in the homeowners' association action. 
  They chose, however,  to dismiss defendants from the action only to
  reassert the claim years later.

       Although our statute appears to be unique, some other courts in
  comparable  circumstances have applied similar statutes to reach the same
  result.  See, e.g., United States v.  Burton, 580 F. Supp. 660, 661-62
  (E.D. Mich. 1984) (limitation statute governing claims arising  out of
  defective or unsafe condition of improvement to real estate, and not
  general civil action  limitation statute, applies to indemnification action
  against architect of improvement);  Washington Courte Condominium Ass'n v.
  Washington-Golf Corp., 643 N.E.2d 199, 225-26  (Ill. Ct. App. 1994)
  (limitation statute governing claims against persons for design or 
  construction of improvements to real property applies to indemnification
  action against  contractors based on their design and construction of
  condominium); Roberson v. Belleville  Anethesia Assocs., Ltd., 571 N.E.2d 1131, 1133 (Ill. Ct. App. 1991) (medical malpractice  statute of limitation
  applicable to "action for damages for injury or death" also covers implied 
  indemnity claim).  

       For these reasons, we determine that the six-year statute of
  limitations of 12 V.S.A. §  511 applies.  Whether we look to the date the
  original complaint was filed, see Riblet Tramway  Co., Inc. v. Marathon
  Elec., 159 Vt. 503, 506, 621 A.2d 1274, 1275 (1993), to the date that 
  plaintiffs paid out the settlement sum, see Cyr v. Michaud, 454 A.2d 1376, 1385 (Me. 1983), or  the date of the underlying injury, see Smith-Moore
  Body Co. v. Heil Co., 603 F. Supp. 354, 360 (E.D. Va. 1985); New Meadows
  Holding Co. v. Washington Water Power Co., 659 P.2d 1113, 1116 (Wash. Ct.
  App. 1983), plaintiffs filed suit within the six-year statutory time
  period.  Granting summary judgment for architects on this issue, therefore,
  was error.

 

                       II.  Breach of Implied Warranty

       Plaintiff Pizzagalli argues that the superior court erred in ruling
  that no warranties could  be implied with respect to OCHA.  Count VIII of
  plaintiffs' complaint alleged that architects  impliedly warranted to OCHA
  that the materials would be suitable for the purpose intended.   Architects
  countered that, because there was no contract between OCHA and architects,
  no  implied warranty could have attached and therefore no breach could have
  occurred.  The  superior court held that there could be no implied
  warranties between architects and OCHA  because implied warranties "arise[]
  from the business of selling rather than the business of  manufacture.'" 
  See Bolkum, 133 Vt. at 470, 346 A.2d  at 211;  Board of Trustees of Union 
  College v. Kennerly, Slomanson & Smith, 400 A.2d 850, 853 (N.J. Super.
  1979) (implied  warranties do not apply to architects because they provide
  services rather than goods).

       Pizzagalli raises a different issue on appeal from that which was
  raised below.  In their  memorandum opposing summary judgment, plaintiffs
  argued that the legal foundation for their  claim was the implied warranty
  of fitness for a particular purpose contained in 9A V.S.A. § 2-315.  (FN2)
  Plaintiffs also cited 9A V.S.A. § 2-318 ,(FN3) which extends a seller's
  warranty to  any person 

 

  who may reasonably be expected to consume or be affected by the good.  By
  contrast, in their  appellate brief, Pizzagalli refers to a warranty of
  fitness implied-in-law that is separate from the  provisions of the Uniform
  Commercial Code.  Pizzagalli cites one other jurisdiction that has held 
  that architects may be held liable for a breach of an implied warranty even
  where no privity of  contract exists.  See Beachwalk Villas Condominium
  Ass'n v. Martin, 406 S.E.2d 372, 374  (1991).  Pizzagalli further argues
  that the superior court erred in ruling as a matter of law that no 
  warranties are implied in a contract for architectural services because
  whether defendant  architects here performed according to their implied
  agreement is a question of fact.  See  Reporter's Notes, 9A V.S.A. § 2-315
  (whether warranty arises in particular situation is question  of fact
  determined by circumstances of contracting).

       An issue generally cannot be raised for the first time on appeal.  See
  Morais v. Yee, 162  Vt. 366, 372, 648 A.2d 405, 410 (1994).  Despite
  developments elsewhere in the common law  cited in Pizzagalli's appellate
  brief, plaintiffs relied on the UCC statutory provisions in their 
  memorandum opposing summary judgment.  These provisions are limited in
  their application to  the sale of goods by contract, and thus the trial
  court correctly ruled that these statutory sections  would not apply to the
  provision of architectural design services.


                         III.  Effect of the Release

       Finally, Plaintiffs IPI/Foster argue that the trial court erred in
  concluding as a matter of  law that the release barred any claims by
  IPI/Foster based on the failure of the Ardex K-15 

 

  remedy.  The construction of the release affects the fate of IPI/Foster's
  contract-based (warranty)  claims and their indemnity claim.  The release
  provided in relevant part:

          For and in consideration of the payment to Investment 
     Properties, Inc., of $5,000 by Lyttle and Keefe Architects, Inc. 
     and $10,000 by General Accident Insurance Company, Inc., 
     Investment Properties, Inc. hereby releases and forever discharges 
     Lyttle and Keefe Architects, Inc. and General Accident Insurance 
     Company, Inc. of and from any and all claims, demands, damages, 
     actions or causes of action related to the design, installation and 
     maintenance of a lightweight concrete underlayment for carpeting 
     in the Overlake Condominium project in Burlington, Vermont.  

          It is understood and agreed that this is a full and final 
     release of all claims of every nature and kind whatsoever, and 
     releases claims that are known and unknown, suspected and 
     unsuspected regarding the deterioration of said lightweight 
     concrete as an underlayment for carpeting.  

       Plaintiffs IPI and Foster emphasize that the effect of the release is
  limited to "design,  installation and maintenance" and that the Ardex K-15
  remedy does not fall within this limited  scope.  They also argue that the
  provision of a suitable remedy for the problem was part of the 
  consideration for the release and, because the remedy failed, consideration
  for the release failed  as well.  Finally, IPI/Foster also allege that they
  were induced to sign the release by architects'  representations that Ardex
  K-15 would provide a suitable remedy.  Architects, by contrast, focus  on
  the fact that the release bars "any and all claims . . . related to" the
  lightweight concrete  problem, and characterize the failure of the Ardex
  K-15 remedy as "related to" the lightweight  concrete problem.

       The trial court agreed with architects, concluding that the Ardex K-15
  remedy was  "maintenance" within the meaning of the release and that the
  consideration paid for the release  was adequate.  It reasoned that IPI and
  Foster as IPI's agent were therefore barred from bringing 
     
 

  any claims against architects based on the failure of the original
  lightweight concrete subfloor or  the material installed over it.

       "A release is a contract."  Economou v. Economou, 136 Vt. 611, 619,
  399 A.2d 496,  ___ (1979); see also Leo v. Hillman, 164 Vt. 94, 104, 665 A.2d 572, 579 (1995) (release treated  as contract and interpreted
  according to parties' intent).  

     The scope of a release is determined by the intention of the parties 
     as expressed in the terms of a particular instrument in the light of 
     all facts and circumstances.  In interpreting a release to determine 
     whether a particular claim has been discharged, the primary rule of 
     construction is that this intention is to be determined by a 
     consideration of what was within the contemplation of the parties 
     when the release was executed, which in turn is to be resolved in 
     light of the surrounding facts and circumstances under which the 
     parties acted.

  Economou, 136 Vt. at 619, 399 A.2d  at 500 (internal citation omitted).

       In this case, the language of the document alone does not reveal the
  precise scope of the  release.  On one hand, the effect of the release is
  confined to "design, installation and  maintenance."  A release is required
  to be specific in order to be valid.  See Dalury v. S-K-I.  Ltd., 164 Vt.
  329, 331, 670 A.2d 795, 797 (1995) (validity of release turns upon whether 
  language is sufficiently clear to reflect intent of parties).  The language
  of a release, therefore,  should be narrowly interpreted, and if the
  parties did not include certain terms this should be  interpreted as
  intentional exclusion of those terms.  Failure of the remedy is a distinct
  concept  which the parties could have included, but declined to do so.

       On the other hand, the parties chose to include broad language to bar
  any claim "related  to" deficiencies in the lightweight concrete subfloor. 
  Claims that arise from efforts to correct  problems with the subfloor are
  arguably "related to" the subfloor (if not to its maintenance, then 

 

  possibly to its original faulty design and/or installation). The parties
  also disagree about the  significance of the $15,000 in consideration paid
  by architects to IPI/Foster.  Plaintiffs argue that  this amount would be
  insufficient as consideration for a release pertaining to both the original 
  subfloor and the remedy.  It is difficult, however, to understand what
  architects would gain by  paying for a release that applied only to
  material that was essentially going to be entirely  replaced or covered.

       Because the scope of the release cannot be determined from the
  language alone, it must  be "resolved in light of the surrounding facts and
  circumstances under which the parties acted."   Economou, 136 Vt. at 619,
  399 A.2d  at 500.  We therefore disagree with the trial court that the 
  scope of the release can be resolved as a matter of law.   While the
  construction of a release or  contract is normally a question of law, when
  the language of the document is ambiguous and  must be clarified by
  reference to external evidence, construction becomes a question of fact. 
  See  Housing Vt. v. Goldsmith & Morris, 165 Vt. 428, 430, 685 A.2d 1086,
  1088 (1996).  Therefore  summary judgment on this issue was error.

                                     IV.


       As a result of our disposition in this case, plaintiffs IPI and Foster
  continue to have  contract-based (warranty) claims and an indemnity claim
  remaining against architects.  Plaintiff  Pizzagalli has only an indemnity
  claim remaining against architects.  We express no opinion on  the
  viability of plaintiffs' indemnity claims, in particular, whether the
  economic loss rule could  bar the claims, as this issue is not before us on
  appeal and has in any case not been briefed by the  parties.

 


       Affirmed with respect to claims on behalf of OCHA based on implied
  warranties.   Reversed and remanded with respect to plaintiff IPI/Foster's
  contract-based claim and with  respect to plaintiffs' indemnity claims.


	                               FOR THE COURT:



	                               _______________________________________
	                               Associate Justice



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                                  Footnotes


FN1.  The only claim that survived summary judgment - a negligence claim
  asserted on behalf of the Overlake Condominium  Homeowners Association
  (OCHA) - was voluntarily dismissed by plaintiffs pursuant to V.R.C.P.
  41(a).

FN2.  Section 2-315 states:

     Where the seller at the time of contracting has reason to know any 
     particular purpose for which the goods are required and that the 
     buyer is relying on the seller's skill or judgment to select or 
     furnish suitable goods, there is unless excluded or modified under 
     the next section an implied warranty that the goods shall be fit for 
     such purpose.
     
FN3.  Section 2-318 states:

     A seller's warranty whether express or implied extends to any 
     natural person if it is reasonable to expect that such person may 
     use, consume or be affected by the goods and who is injured in 
     person by breach of the warranty. A seller may not exclude or 
     limit the operation of this section.