Plaintiff Daniel P. Guiggey appeals from two orders of the Superior Court (Aroos-took County, Pierson, J.) granting summary judgment in favor of defendants Bombardier and Norsworthy’s Sales and Service, Inc. (Norsworthy’s) in a products liability claim. He contends that genuine issues of material fact remain and we agree in part. We affirm the summary judgment granted in favor of Bombardier but vacate certain claims asserted against Norsworthy’s.
On October 25, 1988, Daniel Guig-gey purchased from Norsworthy’s a used 1987 Ski-Doo Snowmobile manufactured by Bombardier. After receiving personal injuries in an accident that occurred while
The claims against Norsworthy’s, however, present greater difficulties. The facts as developed for purposes of summary judgment may be summarized as follows: Norsworthy’s made some modifications to the snowmobile, including reducing the length of the throttle springs, prior to selling the machine to plaintiff. Plaintiff’s contact with Norsworthy’s before the purchase of the snowmobile was limited to one telephone call and two visits to the shop. The telephone conversation was limited to a discussion of whether the snowmobile was still available for sale. During his first visit, plaintiff testified that “one of the people” at the shop said that “it runs nice.” During his second visit, plaintiff spoke briefly with “the guys out in the shop” who commented that “Randy took real good care of it” and “it will go good.”
Plaintiff was injured on December 24, 1988 while driving the snowmobile. Although there was evidence that he was drinking, he contends that the throttle stuck and he was unable to slow or stop the snowmobile.
The Superior Court granted a summary judgment, finding no genuine issue of material fact. We view the evidence before the court in the light most favorable to the party against whom the judgment was granted to determine if the trial court committed an error of law.
H.E.P. Development Group, Inc. v. Nelson,
Plaintiff advances six separate theories of liability against Norsworthy’s. With regard to claims of strict liability, negligence, and breach of implied warranty, plaintiff argues that the snowmobile was defective and unreasonably dangerous, and unmerchantable, because undisclosed modifications were made by Norsworthy’s, and Norsworthy’s failed to warn of a product hazard.
2
In an action based on strict liability, whether the alleged defect is a failure to warn or defective design, no liability will be imposed unless the product is defective.
Bernier v. Raymark Industries, Inc.,
In order to prevent a summary judgment, plaintiff was required to present evidence that the snowmobile was defective and unreasonably dangerous, and that the defect caused the harm. To determine whether a product is defectively dangerous, we balance the danger presented by the product against its utility.
St. Germain v. Husqvarna Corp.,
The claim of an express warranty is premised on statements made by persons in Norsworthy’s shop that “[the snowmobile] runs nice,” that “Randy took real good care of [the snowmobile],” and that “[the snowmobile] will go good.” An express warranty is created when “any affirmation of fact or promise made by the seller to the buyer which relates to the goods ... becomes part of the basis of the bargain,” 11 M.R.S.A. § 2-313(1)(a) (Supp. 1991), or when any description of the goods “is made part of the basis of the bargain. ... In the case of consumer goods sold by a merchant with respect to such goods, the description affirms that the goods are fit for the ordinary purposes for which such goods are used.” 11 M.R.S.A. § 2-313(1)(b) (Supp.1991). The statute gives “an express, and therefore nondis-claimable, warranty that any consumer goods sold by a merchant are fit for ordinary purposes for which they are used.” John A. Spanogle, Jr., Changes in the Present Maine Law Created by the Maine Consumer Credit Code, 26 Me.L.Rev. 173, 202 (1974). The statements in the present case are too vague to constitute express warranties concerning the throttle, but even if established, such a warranty adds nothing to the implied warranty of merchantability provided by 11 M.R.S.A. § 2-314(2)(c) (1964). The Superior Court did not err in granting a summary judgment on the express warranty claim.
Next plaintiff contends that Nor-sworthy’s violated the Unfair Trade Practices Act (UTPA), 5 M.R.S.A. §§ 205-A-214 (1989), by breaching the implied warranty of merchantability under 11 M.R.S.A. § 2-314 and violating the provisions of 10 M.R.S.A. § 1161, et seq. (Supp.1991) regarding warranties on new motor vehicles. The basis for both claims is Norsworthy’s alleged failure to disclose the modifications to the snowmobile.
“Given the proper circumstances a defendant’s failure to honor the statutory warranties may well be evidence of a violation of the UTPA.”
State Ex Rel. Tierney v. Ford Motor Co.,
The new motor vehicle warranty provisions of Title 10 apply only to vehicles “designed for the conveyance of passengers or property on the public highways ...” 10 M.R.S.A. §1161(3) (Supp.1991) (emphasis added), so snowmobiles are not covered.
Finally, plaintiff argues that judgment was erroneously entered on his claim of fraud and misrepresentation. To sustain a fraud claim, a party must show: (1) that the other party made a false representation (2) of a material fact (3) with knowledge of its falsity or in reckless disregard of whether it is true or false (4) for the purpose of inducing him to act in reliance upon it, and (5) he justifiably relied upon the representation as true and acted upon it to his damage.
Diversified Foods, Inc. v. First National Bank of Boston,
A common, essential element of both claims is the requirement of a false representation. Plaintiff failed to present evidence of a false representation by Nor-sworthy’s. Even if the comments by the “guys” in the shop were false, there is no evidence that the statements were made with knowledge of falsity or reckless disregard of truth or falsity. Further, even if Norsworthy’s intentionally failed to disclose the modifications to the snowmobile, no actionable fraud claim can arise absent an active concealment or a duty arising from a confidential or fiduciary relationship.
See H.E.P. Development Group, Inc. v. Nelson,
The entry is:
Judgment in favor of Bombardier affirmed. Judgment in favor of Norswor-thy’s vacated in part and remanded for further proceedings consistent with the opinion herein on the claims of strict liability, negligence, breach of implied warranty, and violation of the UTPA. In all other respects judgment in favor of Norswor-thy’s affirmed.
All concurring.
Notes
. M.R.Civ.P. 7(d)(2) provides:
The party opposing a motion for summary judgment shall file with the material required to be filed by subdivision (c) of this rule a separate, short and concise statement of the material facts, supported by appropriate record references, as to which it is contended that there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party, if supported by appropriate record references, will be deemed to be admitted unless properly controverted by the statement required to be served by the opposing party.
. Although plaintiff alleged that the machine should have been equipped with a throttle override, the statements of material fact make no reference to this subject and the issue is not preserved.
See
M.R.Civ.P. 56(c) advisory committee’s note to 1990 amend., Me.Rptr., 563-575 A.2d LXXIII;
Gerrity Company, Inc. v. Lake Arrowhead Corp.,
. Both defendants question whether plaintiffs expert is qualified to testify as an expert in this matter. However, whether a witness is qualified to testify as an expert is a question of fact, and if it is disputed, it should not be decided by the court on a motion for summary judgment.
Levesque v. Chan,
. The UTPA states that courts should be guided by interpretations given by the Federal Trade Commission and the federal courts in determining what constitutes an unfair or deceptive practice. 5 M.R.S.A. § 207(1) (1989).