Question: Shalene Kolchek bought a Great Lakes Spa from Val Porter, a dealer who was selling spas at the state fair. Porter told Kolchek that Great Lakes spas are "top of the line" and "the Cadillac of spas" and indicated that the spa she was buying was "fully warranted for three years." Kolchek signed an installment sale contract; then Porter handed her the manufacturer's paperwork and arranged for the spa to be delivered and installed for Kolchek. Three months later, Kolchek noticed that one corner of the spa was leaking onto her new deck and causing damage. She complained to Porter, but he did nothing about the problem. Kolchek's family continued to use the spa. Using the information presented in the chapter, answer the following questions.
1 Did Porter's statement that the spa was "top of the line" and "the Cadillac of spas" create any type of warranty? Why or why not?
2 Did Porter breach the implied warranty of merchantability? Why or why not?
3 One night, Kolchek's six-year-old daughter, Litisha, was in the spa with her mother. Litisha's hair became entangled in the spa's drain, and she was sucked down and held under water for a prolonged period, causing her to suffer brain damage. Under which theory or theories of product liability can Kolchek sue Porter to recover for Litisha's injuries?
4 If Kolchek had negligently left Litisha alone in the spa prior to the incident described in the previous question, what defense to liability might Porter assert?