*1
purpose,
they
however
their
or
if
indirectly,
intimated
will
have
obeyed.
recognized
be
should
will
arbitrary
superficially
construction
Mere rhetoric or
agreement
not
should
blind
in
a statute
words
agreement and
of the real
an examination
courts
purpose
said
his
Holmes
it. As Justice
behind
the sum costs $500 Supp., 44-359, R. S. 1972.
Affirmed. J., Boslaugh, dissents. corporation, Company,
Hawkins Construction appellee, Company, Inc., v. Matthews appellants.
corporation, et al., 209 N. W. 2d July 27, 1973. Filed No. 38627. *2 Douglas & Norris John R.
Crossman, Barton appellants*. Tierney, Henatsch, for Adams & Cassem, appellee. & Beam, Endacott for Berkheimer, Knudsen, Heard before J., White, Boslaugh, Smith, McCown, C. Judge. District JJ., Hastings, Clinton, Newton, J.C. White, property damage sustained an action
This is *3 Company plaintiff of a result Construction as Hawkins by collapse the defendant scaffold manufactured the of a Shoring Company and leased and Scaffold Waco Company, plaintiff by Inc. defendant Matthews The plaintiff against jury and both verdict for returned a affirm the $32,635.48. in the amount of We defendants judgment the District Court. of complex a careful case, nature of of
Because necessary. May In of the facts review Company plaintiff entered into a Construction Hawkins Chicago Company under and Swift contract with canning plaintiff to construct a ham was of which terms J Ne- facility Omaha, and at 94th Streets for Swift scaffolding equipment amount A substantial braska. plaintiff job, an in- and made needed for availability, vestigation cost, similar and factors. companies frequent like need which Because plaintiff scaffolding equipment, manufacturers have advertising periodically suppliers send it brochures, complete set of the plaintiff had a latest brochures in by pamphlets published its Among office. was one
the defendant received Waco, had which the from Mr. William Matthews the defendant Matthews Company, rubber-stamped Inc. The with back cover was Company’s one of names, trade “Scaffold Matthews phone together Rental & Co.,” Sales address and with its number. pamphlet types
The Waco described the various components company, scaffold manufactured provided pictorial representations suggested applica- equipment. pamphlet tions of the In con- addition, following tained the statement: “Waco HI-LOAD shor- ing equipment designed safely working carry loads up pounds per panel. to 20,000 the load This twice capacity scaffolding.” pamphlet of conventional steel later following reiterated the claim manner: “HI- panels safely LOAD carry will individual concentric up pounds per leg loads to 10,000 as illustrated. These following procedures loads were established test recom- Scaffolding Shoring mended the Steel Institute.” Accompanying drawing this text was a of a scaffold panel with “10,000” number above its each two legs. Lang, plaintiff’s job sponsor proj-
Thomas on the Swift ect, testified he relied on made in the statements entering arrangement brochure in the lease for Waco equipment Company. defendant Fred Matthews president majority plain- Hawkins, stockholder of the tiff, testified trial that he also relied on the brochure helping scaffolding, to make the decision use to Waco deposition prior but the trial he had testified particular thing” there “no he read or saw thinking, price that influenced his and an im- *4 portant factor as well. any case,
In the decision made use scaf- was to Waco folding, to it from the lease defendant Matthews Lang, Company. job the to William Mat- sponsor,^went project purposes thews, described the and the for which provided him with equipment to used, the blueprints was received job. the time, In the drawings prepared by- series of from Matthews a back configura- scaffolding showing the recommended Waco project on plant’s and work construction, tion for the began. collapse scaffolding purpose involved pour. The support cement the roof deck
was plaintiff’s compact made tests first consulted soil men by laboratory effort to determine whether local in an upon be erected foundation scaffold would Flynn, supervision Under Thomas was firm. plaintiff’s carpenter then foreman, “mud sills” were placed support ground These on structure. laid flat x inch boards sills consisted ground, sinkage by prevent purpose their distributing weight more its load of the scaffold and plates, per- evenly jack base over base soil. Screw mitting panels, adjustment then were vertical each nailed to the mud and levels taken at sills, were stage assembly of this insure that the scaffold base perfectly frame structure horizontal. The tubular panels forming of the structure were bottom section plates. then fitted into the base scaffolding required The roof deck construction height and, reach to 20 feet each scaffold since high, panel job required panels 6 feet thus top to be of each other until stacked desired height accomplish In order this, reached. plaintiff had ordered tubular connectors, manufactured by the defendant from the Waco, defendant Matthews Company. merely These connectors are hollow tubes larger slightly diameter than the an interior tubular- panel. feet scaffold Connectors are fitted over supports panel, upper and the tubular of the bottom panel top fitting is then stacked on its feet into the connectors.
Originally, these connectors were manufactured
551 simply welding reinforcing ring outside washer recently, length pipe. center of solid however, More hydraulically press- the ing connectors have formed been lengths pipe together two smaller an amount pressure greater yield than the value, their so that pieces two deform at the center form an exterior ridge they join. accomplished as All is without heating components, procedure the connector the correspondingly process.” known as a “cold form It was type Company the latter of connector Matthews which provided plaintiff’s job, on the the use Swift stability process the effect of the cold form on the actively disputed. these connectors panels Once the the have been stacked reach desired height they topped U-shaped are heads,” off with “shore designed supportive holders bracing to cradle some of the lumber underly plywood pour
which will the base. More specifically, “ledgers,” the short heads the cradle which consist of a minimum of three and sometimes 2 x four together 12’s nailed front fitted into the back and edge. on shore heads That if 2 x 12’s are is, used, three ledger when installed 6 inches would be wide in the shore head and would 12 inches above it. The stand ledgers, support lengths “joists.” turn, are Joists placed edge ledgers top of lumber on on and at right angles joists provide to them. direct support plywood pour structural to base above, and, they placed apart case, in this were 16 inches center. joists plaintiff In the construction of these de- parted supplied plans from The in- it. variances joists type volved the size of lumber used for bracing supporting undisputed of structural them. It is plans joists the Waco called for to be made plaintiff 2 x from 10’s x used 2 12’s in- joists supporting pour plywood stead; thus the base ledgers inches off stood mended rather than recom- plaintiff’s job sponsor inches. The admitted they x 12’s that one of reasons 2 were used joists either as reused, could be versatile, and are more ledgers, jobs. other sup- joists plans to be called for the also Waco ported cross-bracing, horizontal used and the placement Cross-bracing bracing. involves specified intervals shaped “X” set of cross beams bracing joists; of run- consists between horizontal edges ning along lengths of 1 x bottom 4’s *6 securing joists specified to the them intervals and edges eightpenny joist The náils. head with double plywood pour joists the then secured to themselves are sevenpenny ends of nails. The base block above with against ledgers joists the both the are rested the and stability plant outer the order add wall structure expensive system. Cross-bracing to the more form is stronger consuming employ, and time but is somewhat bracing, particularly force than horizontal lateral where bracing commonly is used involved. Horizontal industry, the used however, construction and had been by plaintiff many prior projects. supportive on The the larger joists, the horizontal effectiveness buttressed disputed. cross-bracing, actively rather than also plaintiff’s On October en- 1968, the workmen were portion gaged pour the deck. a cement on a roof “pour the under- Pechar, Edward stationed watcher,” was legs not neath deck to did make sure the tower being placed ply- cement on the settle as a result of the pour tying red base. he did indicator wood This premarked points ribbons at the scaffold and then on sighting throughout on them level construction with pour. nothing Flynn, He observed unusual. Thomas carpenter routinely foreman, had the con- checked footings pour, headings before the nectors, shore nothing he, Jack too, Moore, had unusual. found superintendent, Siedlik, the concrete the labor Stan up pour just foreman, deck, were both and had dumped empty off bucket had a load which waved plywood onto the base. of wet cement portion warning any the roof kind a Without suddenly gave working deck on way. the men were collapse ground Siedlik went down with top him, came but and cement and debris down injuries. escaped miraculously only minor he pour tempo- away had Pechar, who turned from rarily, to see the roof heard a loud noise turned collapsing away. standing feet Moore was less than 10 just beyond collapse, injured. area of agreed prior collapse All three there men any symptom no vibration, noise, other unusual accompanying of trouble, and that noise single report accident was loud the roof fell. collapse, Lang inspected After the the scene and de- damage place square termined that the had taken in a approximately ground area feet on a side. including covered with debris, at least a dozen broken Flynn, carpenter connectors. foreman, testified that all broken connectors he observed after the accident ring were fractured middle, where deformed splintered is located. The area was also strewn with scaffolding lumber, bent sections, and other debris. question At threshhold this case *7 plaintiff collapse causation. The contends the was proximately defectively by caused the failure of manu- factured connectors. The defendant Waco contends that collapse the bridging applied was caused insufficient joists, permitting joists to unstable the to roll over and give way. point, thus As to this the trial involved a expert testimony. conflict of professor James engineering Hossack, of civil at the University employed Omaha, of Nebraska at was the on December investigate 26, 1968, to the collapse. studying plans, After the interviewing per- sons who the accident, witnessed and consulting rele- proceeded Hossack literature, vant experi- to conduct University mental tests the summer and fall determining toward with view the cause of the super- collapse. conducted under These tests were Flynn, carpenter foreman, Folker, Jack vision of job sponsor, superintendent, Lang, job and Thomas scaffolding constructing for all of whom assisted the tests. parts. The first into
The tests divided two were testing experiments of various involved outdoor series of configuration. portions The first two of the scaffold on the wood force examined of lateral tests the effect shoring system, involving horizontal brac- the first test ing involving cross- the recommended and second bracing. of the struc- In ultimate failure both cases the — bracing of the horizontal ture was slow the case joists before the significant held the load for 15 minutes — the failure relaxation in both cases collapse. clearly the hori- audible before the was When bracing example, system held zontal tested, was point up the simulated load joist where 5 inches reached, deflection deformation was nailing the 2-inch could be heard de- wood after point Hossack testified that flection was reached. “(w)ood systems literally groán you them can hear quite loud under load.” is the result when This joist system testi- rolls. -It contrasted with collapse mony that the witnesses who said was prior sudden and inaudible to the failure.
A outdoor test conducted if third to determine system joist interact wood would steel scaffolding system produce failure, result - collapse produced, joists and no rolled, partially completely but either 10 connectors were fractured at the center. tests on the
Indoor were conducted connectors de- they termine contained a defective whether weakness. tests were conducted a Tinus Olson Axial Load capability apply simulator, has either compression given component forces to a tension sub- bending ject. involved tests Two connectors- *8 breakage the con- until failure, and both resulted in along nector third A test seam line at center. “straight tension,” involved what Hossack called i.e., pulling apart connector con- whether the determine spot. tained test, a weak com- In fourth which pression applied, ap- force a connector withstood proximately pounds point pressure, at 15,000 which pin couplings attaching failed. to the simulator along
In addition, Hossack cut two connectors longitudinal axis order examine their interior structure. One of these connectors was found incompletely joined at center, Hossack attrib- pressure manufacturing uted to pro- insufficient cess. objection, permitted
Over Hossack was to offer his opinion collapse, cause of the based his photographs examination of scene, taken at the his test- ing scaffolding system components, and its testimony prior of the witnesses who heard no noise collapse. opinion to the sudden In his the accident was by not shoring system, caused a failure of the wood scaffolding, but a defect in the steel to wit: A plane imperfection in the center of the connectors. expert
The defendants’ Fred C. Kosmach, engineer designer senior for Waco and the of the scaf- folding plans job. for the Swift He and Waco Com- pany collapse had been notified of the Hawkins, he flew to from Omaha the home office in Illinois the day. Upon arriving same an began the site, Kosmach inspection remaining debris and the structure. He observed deviations which the made plans, from his- and he also observed that some plywood 'appear which had fallen did to have been joists. nailed to the He testified that an Instantaneous collapse joists could occur if one or two which were'not Suddenly testified, nailed down rolled. He further based experience testing his scaffolding over 100 Waco configurations system failure, Swift failed
556 plans and a the Waco from because of the deviations computed resulting joist supports. He rollover job pounds, “leg that and testified 7,100 load” on this equipment 22,500 load of could a the Waco withstand collapse properly per leg constructed. pounds if before a connector has never Furthermore, he testified in one of his failed tests. argues insufficient that there was
The defendant Waco jury proxi issue evidence submit argument, collapse. in effect, mate cause of the Its proximate of the col cause that as matter a law lapse comply the failure of was Hawkins specifications constructing the As in scaffold. Waco expert light testi seen, in of the nature we have dispute mony, into this resolved as whether itself collapse in if or vertical and nature, was lateral wrong jury clearly was vertical in nature, whether collapse finding defect in the that the caused was this conflict favor of the resolved “connectors.” required plaintiff, of the court since instructions scaffolding system the steel it to find not a defect in plaintiff by Waco, that such but defect and delivered to proximate From the evi cause of the accident. here it obvious reviewed there dence we have ample evidence to a direct conflict and there was support finding defective, the connectors were actually breaking the defect did result and that support, causing collapse the vertical a lack and jury scaffolding A structure. verdict on such issues clearly wrong may set aside it is not be unless any competent presented evidence if there is is sufficient jury upon it could find for the successful lay, expert evidence, party all conflicts credibility jury the witnesses is v. Parks, Hancock Neb. N. not the court. Hardesty, 173 69; Trailmobile, 2d Inc. v. Neb. 46, W. 2dW. 535. 112 N. upon competency attack made
A strenuous
plaintiff.
testimony
Hossack’s
The defendant
for the
argues
improperly,
Waco
that his
conducted
tests were
opinion
assumptions
specula-
that his
based
hypothetical question
tion, and that the
which elicited
opinion
proven
fairly
did not
reflect the
facts. This
repeatedly
court has
trial court
held that a
has wide
experimental
latitude in the admission of
tests. We
attending
have said that the difficulties
an offer of evi-
experiments requires
dence of
that in
illustrative
such
upon
cases a
wide latitude
discretion
conferred
trial court and that unless there is a clear abuse of dis-
judgment
cretion a
will not be
on account
reversed
*10
rejection
testimony.
the admission or
of such
Crecelius
Gamble-Skogmo,
v.
Inc.,
394,
627;
Neb.
N. W. 2d
Ripp v. Riesland,
205,
180 Neb.
The defendant Waco that Hossack’s contends opinion speculation. From we based mere what exhaustively have said it clear that Hossack outlined scope tests, nature his their results. appears clearly explained carefully that he point reasons for out that de- his conclusions. We expert fendants’ constructed a model and conducted also experiment, an into all which was admitted evidence. accepted jury But the not Hossack’s and the defendants’. argument collapsed pre- that the scaffold had viously merits, directed toward is insufficient upon admissibility to sustain attack of Hossack’s expert opinion. argument overlapping
In an the defendants assail the hypothetical question particularly form be *11 testimony Pechar, it cause omitted the who observed collapse. question hypothetical fairly re A should proven flect the facts. Great latitude is allowed the ruling judge admissibility question. on trial in such improper simply hypothetical question is not because A part testified to. Landis includes of the facts 121 N. 980. An ex Watts, 671, 84 Neb. W. & Schick v. opinion right giving pert has a to' confine an in witness which to he recites to those are believed the facts that are believed to be material true, or which question are relevant to issue. The what facts
559 (cid:127) upon determination is one of the basic ex- ones any given perts may Again in field differ. the disre- garding bending lack of evidence on the Pechar’s argument 'directly jury an on the merits in upon credibility testimony, attack Hossack’s admissibility. does not affect its
We have other examined the made contentions Company defendant Matthews in this area the same reasons find them to be without merit. question presented
We turn now to the basic in the liability. case issues of substantive trial theory liability court submitted the of strict tort liability under the Uniform Commercial Code in one requiring jury combined set of instructions and plaintiff return one verdict either in favor combining defendants. error No of these two theories and of action causes set of one instructions require is asserted and does not our attention. Since permitted jury the trial court submitted and theory return a verdict for the property damage all defendants were liable for occur- ring as a result re- defective are connectors, we quired comprehensively to examine these instructions proper range liability determine of strict tort jurisdiction. We had last occasion to examine in controversy surrounding detail the tort Co., Kohler Ford Motor v. 428, N. W. Neb. adoption (1971). 2d Our li extension of strict ability in that case was restricted. We laid down strictly “a broad rule that manufacturer is in tort liable placed knowing when he market, an article inspection proves it is to be used without for defects, injury to have a be defect which causes an to a human using ing rightfully product.” Id. at 191 N. supplied.) (Emphasis W. 2d 606. We are faced sauarely proposition the extension of a doc injuries permit beyond personal recovery for trine property damage. all
560 plaintiff logically argues, extension
As the this seems problem The arises maxi- be irresistible. because the logical mum extension strict runs head- of tort long provisions of Uniform Com- into the restrictive the setting up liability for mercial Code standards for warranty, breach of the trial also which court submitted. rely appears; plaintiff It a clear sooner would recovery Com- strict tort for his than Uniform warranty require rules, Code latter mercial since the more him and For less the seller or manufacturer. plaintiff example, required, 2-607 section under (3) (a), give U.C.C., the defendant notice of breach. either manufacturer and consumer Furthermore, any may agree may or the manufacturer disclaim war- providing U.C.C., ranties the dis- 2-316, under section meaning of claimer not unconscionable within poses 2-719(3), sections 2-302 U.C.C. This conflict development tort li- historic debate in ability. Upon Prosser, Assault Citadel The See, (Strict Liability Consumer), 69 Yale J. 1099' L. (1960); § 402A, Comment m 2d, Restatement, Torts (1965). p. 356 Space permit does not an exhaustive this discussion this; question. damage case,, The total to1 recovered, $32,635.48. Included for petition it replacing prayer were the costs replacing damaged cost well as structure, as scaffolding alleged to be defective. Conse which was quently, appears case, as in several it has merely governing that to situation, the authorities injury property distinguish personal dam between analyze incompletely. problem age is to losses light Code, clear, the Uniform Commercial oí may damage property further the class situations categories: Situations where subdivided into two damage product to itself situations causes defective product damage other causes where the defective plaintiff argues; rule of property. for the lode star Karagheusian, A M v. & case of controversial Santor Beyond (1965). personal Inc., 44 N. J. 2d A. *13 injury, recovery a strict on that case allowed in injuries theory, cost of in “to insure tort order property, goods damage, or resulting sold or to other either to the products, makers from borne defective is products put trade, in the channels who them damaged persons injured or rather who than dinarily powerless protect This re are themselves.” pure logic, but mentioned, inevitable, seems sult, liability application comprehensive strict tort provisions clearly applicable would emasculate the warranty and war the Uniform ranty liability Code as Commercial designed apply where the which were damage product from no results is where defective but persons property. defect, or other either to Code the Uniform Commercial between collision expanding application doctrine of strict of the controversy liability, present law of tort is pertinent importance. utmost We have reviewed including ambi authorities, guity claimed the discussion compromise Restatement, section 402A of Karagheusian, Inc., M 2d. v. A & Torts Santor See, supra; Baum 502; 405 P. Gatlin, 241 Ore. 2d Price v. 315, Murray, 801; LaHue v. Coca 890, 2d 162 P. v. 23 Wash. Seely Bottling, 421; 314 2d 2d Inc., 645, Cola 50 Wash. P. Rptr. 17, 403 Co., Cal. 2d Cal. 9, v. White Motor Liability 'Collide: Franklin, Worlds 145; 2d When P. Cases, in Defective-Product Disclaimers Theories and Theory Shanker, 974; Strict Tort L. Rev. 18 Stan. Liability Code: the Uniform Commercial Products A Jurisprudential Eclipses, Pigeonholes Comentary Barriers, Titus, 5; L. Res. Rev. 17W. and Communications Torts, (Second) Section 402A Restatement 713. Code, 22 L. Rev. S'tan. Uniform Commercial giving maxi- authorities From review liability, tort doctrine of to the basic mum imoort liability was not strict tort the doctrine we feel conceived as a substitute for cases warranty liability where the has purchaser lost of his the benefit bar- gain. It seems to us quite apparent designed it was to make the risk of defect-caused injuries enterprise an liability, so that the burden of en- injury placed tirely “the victim” unfortunate often ill- who equipped to bear it. See v. Greenman Yuba Power Inc., 59 Products, Cal. 27 Cal. 2d 377 P. Rptr. 697, 2d 897 If (1963). the loss economic, Uni- merely form Commercial Code has given the purchaser ample recourse under the particular provisions and require- ments of the code. Placed is the broadly, law sales, and not torts, the law of protects buyer’s interest the benefit of his bargain.
We examine briefly the jurisprudential considerations underlying conflict. We reason perceive sound for extending the doctrine of strict tort *14 point where it emasculates the law sales and of Uniform Code, Commercial extended to situations in which the loss involves injury to the defective prod- uct itself. The Uniform Commercial adopted by Code, our Legislature, was designed to up set standards cover- ing the very situation present in this case concerning the defective scaffold. It balances the inter- competing ests of the manufacturer and seller public policy objective of preserving the freedom of contract and the consequent acceleration of business and the productivity necessary experimentation of development new products. In transaction, a commercial the seller should free 'be limit to his for liability defects by clearly telling the purchaser what he is buying; and this the code per- mits him to do. The can collision be avoided and the sit- uation reconciled seeing clearly public policy only demands an additional remedy be given buyer which eliminates situations beyond range Uniform Commercial Code and the applicable of law sales. Paraphrasing Justice Cardozo, we do not think it was the intent of the Legislature proper public policy flay by punishing the manufacturer him for as; contractually limiting de- risks involved product properly fective itself. In Kohler held we purchaser personal every right protected has a from injury regardless these of the terms the sale. But jurisprudential public policy considerations ar- guments persuasive purely are not com- when losses are parties mercial, and the are free to contract betweeen themselves en- Uniform Code as Commercial Legislature protects pro- acted interest and remedy vides the in case of breach. point required,
At this therefore, we are to hold that submitting the District error issue Court was in damage liability jury of strict tort sus- jury being general, tained. The verdict has this court way knowing jury no totally upon the case but that resolved liability.
the issue of We are strict tort proposition faced with the determination of wheth- damages er this erroneous submission the issue of prejudicial. from strict tort hold that We see, not. As we shall soon discussion warranty plaintiff action, the breach of cause of prevail pre- entitled to as a matter of law the issues: recovery warranty, except sented breach product issues and whether of whether the defective proximate damage injury. cause of the it was being recovery, These issues identical to both theories jury’s necessarily verdict would have for the been theory recovery, under either and conse- prejudicial quently there is: error. briefly examine the defendants’
We contention as *15 warranty error the submission of li breach of Company, ability. First, Matthews claims defendant, coverage as mere not be tort should lessor strict against permitted that reason. This has contention Leasing Rental Hertz Truck & no merit. Clintrone v. 212 769; 45 A. Martinez v. Nichols
Service, 434, N. 2d J. 564
Conveyor Engineering App. & 243 Inc., 795, Co., Cal. 2d Rptr. 52 842. Cal.
Liability pro- Waco from and Matthews flows provides part: visions of section 2-313,U.C.C., which “(a) Any promise or affirmation fact made goods buyer the seller to which relates to part bargain becomes of the basis an ex- creates press warranty goods shall conform af- that the promise. firmation or “ (b) Any description goods part of the which made isi bargain express warranty of the basis of the an creates * * * goods description. that the shall conform to the “ (2) necessary express It is not an creation of warranty seller use formal such as ‘war- words ‘guarantee’ specific rant’ or or that he have intention warranty, merely to make a but an affirmation goods purporting merely value to be statement opinion goods seller’s the not create a or commendation of the does
warranty.” stamped The Waco brochure was with the Matthews Company express and constituted warranties tradename, provisions:. orig under the above The warranties were inally adopted by Waco and made Matthews. Ex press may advertising be made an warranties bro ,165 chure. Brown v. Globe Laboratories, 138, Inc., Neb. may 84 N. W. 2d 151. A or seller held manufacturer advertising though warranty liable under such even privity purchaser. Syl ishe not in of contract with the (2d Swasey Inc., vestri v. Co., Warner & 398 598 F. 2d 1968); Henningsen Cir., Motors, v. Bloomfield 32 Inc., 358, Randy 69; N. J. 161A. Knitwear, 2d Inc. v. American Cyanamid Co., 363, N. Y. 2d 226 Y. 2d N. N. S. (1962); cf., E. 2d 399 v. Co., Sherwin Williams Burr (1954). Cal. 2d P. 682, 268 2d 1041 pamphlet advertising brochure assured the carry equipment designed safely “is user that working per panel” up pounds and that loads to 20.000 following figure procedures “established test
565 by Scaffolding Shoring recommended the Steel In- and regarding specific per- stitute.” are statements These capabilities, they formance and we hold that constitute express as a matter of law. See Greenman warranties supra. Inc., Products, v. Yuba Power claiming The Waco answers that the defendant war- qualified, expressly impliedly, by ranties were either or plaintiff comply the that the condition the brochure specifications engineering plans with to the of the as plaintiff required design, lumber and that the to was compliance precedent as a demonstrate such condition to recovery. language But in the other brochure Waco placed design responsibility the timber the final placement user, Hawkins. with the This not impose of a an statement manufacturer who seeks exacting precedent concerning condition absolute design certainly gave It lumber on the user. the user change leeway 12'si, 2 x x from 10's to unless such collapse change proximate cause of and the was the against damage, resolved the defend- issue was undisputed by jury. Under the contents of ants warranty, the defend- and the nature brochure, compliance ants, law, as matter absolute waived the sug- design implied conditions timber plaintiff gested plans, thus left free in their compliance that prove substantial there that was proximate compliance cause of lack not damage. Motor 188 Neb. Boesch Melcher v. Co., 57. 2d N. W. Company argues there Matthews defendant
The warranty by adoption The proof it. distinguish- by patently Matthews are cited authorities adoption of the evidence shows feel that able. We by a matter of Mat- as law. warranty Matthews Waco’s plaintiff was; dealt. one with whom the thews advertising in- brochure an effort supplied the scaffolding it. plaintiff from Waco to lease the duce The plain- presented warranty adopted gain tiff an effort to a customer, as Company, hold Matthews we law, a matter of thus its own admission bound it. presented arguments next issue de- part that these warranties
fendants is did become a bargain,” meaning “basis: of sec- within the 2-313(1), U.C.C. It clear tion these warranties *17 bargain as a matter of law, became basis under the facts we have recited above. Comment 3 to section 2-313(1), U.C.C., states' with to reference the basis of bargain particular that, “no reliance on such state- to ments need fabric shown order weave them into the agreement. any Rather, of the fact which is to agreement take made, such once affirmations, out of the requires proof.” clear affirmative already pointed
As we have out, issue that product defective, that was the defect existed at the product time the left the manufacturer’s that the control, product substantially unchanged, reached the consumer proximate damage, and was the of the is- cause were against jury sues all resolved: defendants are, we disturb These will them. issues in substance, necessary prove identical issues that are to under theory. jury, by strict tort verdict, its found that pressing process the cold form used to manufacture plane connectors critical resulted: in 'structural along centerline, their de- weakness fective in the either because of design pressure or because of used insufficient manufacturing particu- in this connectors testimony indicating lar case. There that some is already they were connectors at the time were broken that' sorted delivered and these broken connectors were project began. discarded out and before construction repeat ample no evidence further. There evi- We support jury’s record to conclusions in dence in'the n aspects the case. fundamental of' these (cid:127) argument is made Considerable discussion the submission of the issue of com. the' defendants'as to negligence. tributory It is “con- clear traditional tributory negligence” in the sense a failure to dis- guard against cover it, defect not a defense warranty. tort, a suit in breach of As- sumption product of risk and misuse of the are. Restate- p. § ment, 2d, 402A, n, Torts Comment 356. Whatever submitting error there was broader con- issue of tributory negligence obviously prejudicial could not be plaintiff. defendants but There no merit to contention. this applied thus case, as becomes clear, recovery theories
two married and that the became accordingly. trial court instructed As to the crucial product proximate issues of a defect cause, jury required findings to make identical matter theory recovery permitted. As to all other prevail issues the entitled a matter Consequently prejudicial of law. there was no error damages in the over-broad submission of on strict tort liability.
Complaint concerning is also made certain other in- rulings evidentiary structions trial court. We *18 they have examined these contentions and are without merit. judgment
The is the District Court correct and is affirmed. Affirmed.
n only. concurs in result J., Boslaugh, Smith, J., concurring in result. jury liability to
Submission both theories respect the evidence was not reversible error. it would be In that healthy instinct to for us rest our reasons relating Important policy there. information in- to adequate. Page - Keeton, W. “Products Liabihtv In- adequacy Information,” L. Rev. Tex. 398 at 402' (1970). theory liability conceivably largely The judicial policy. matter of (cid:127) McCown, J., in part and concurring dissenting part. the result the discussion concur in
I much opinion. majority I dissent from that reached in purports opinion hold portion that the to which liability tort on seller de- doctrine of strict property damage products to does not fective extend involved. here N. 428, Neb. 191 W. Motor Co., Ford
In Kohler v. liability adopted doctrine of court 2d 601, personal products of defective the seller where in tort on injuries majority opinion to now refuses resulted. The damage physical property to to extend that doctrine The for that or consumer. basis of the ultimate user misinterprets the doc- misconceives and determination product liability in tort. of strict trine p. provides Restatement, 2d, Torts 402A of Section “(1) product any part: One in a who sells de- dangerous unreasonably condition user fective subject property liability to or consumer or his thereby physical harm caused the ultimate user for * * property, if or to consumer, his will noted the critical difference rests on be “physical any not on the term harm” and distinction property. Every person other section of between dealing liability Restatement with areas of strict refers person, liability for harm to chattels of land, logical upon There is or reasonable another. basis prod- of strict the doctrine defective applied physical per- can harm caused to a ucts physical time be son, and at same denied for harm property. to his caused majority opinion attempts distinction which the
The damages being treats the here “com- to make caused bargain. opin- mercial” or an economic loss concludes that therefore is more suitable for ion provisions handling warranty under Uniform opinion attempts Code. The also Commercial bolster the fact fractional that conclusion share of *19 replacement damages for claimed was scaf- damage entire Nevertheless, fold itself. property plaintiff. physical
form of harm to the condi- defective There is clear between a a distinction physical harm tion causes direct tortious damage person property user, of a form of commercial a defective condition which causes grounded in resting warranty and or economic on loss the U.C.C. Rptr. Seely Cal. 9, 2d
In Motor 63 Cal. Co., v. White refusing Traynor, 145, 2d Chief Justice P. liability apply economic to cover doctrine strict has drawn out law loss, set the distinctions which injuries recovery physical and war- between tort ranty recovery for dis- “The economic He said: for loss. understanding of the nature tinction rests, rather, responsibility undertake in of distributing must a manufacturer products. appropriately be held He can
his physical injuries by defects re- liable for caused safety quiring goods defined his to match a standard risks in terms of that create unreasonable conditions performance cannot for the level of harm. He be held products unless he of his in the consumer’s business agrees designed product to meet the con- charged not be sumer’s demands. A consumer should bearing at the of manufacturer with risk of will product physical injury buys he market. when charged fairly the risk can, however, He product expectations will not match economic his agrees unless manufacturer will. Even in negligence, actions for lim- liability manufacturer’s damages physical injuries ited to and there * * * recovery for economic alone. The Restate- loss similarly physical ment of Torts limits person property.” harm to
Following a discussion of Uniform Commercial application Code its cases of commercial loss, Traynor Chief Justice said: “Plaintiff contends that, though warranty governs even law the economic *20 parties, lia- of strict
relations doctrine between physical bility govern in tort should extended to be injury. personal injury plaintiff’s property, as well prop- agree injury Physical We with this contention. erty personal injury no reason that there is so akin to is distinguish apply the doctrine He refused them.” proof in that case trial because there damage physical court that the defect caused truck involved. damage
In the case the result of before us “physical plaintiff’s property, harm” to the which was property product. other than the defective The scaffold by plaintiff. itself was leased it also suffered While physical ought that fact not alter the harm, situation impel nor the court into treatment a restrictive liability. Particularly strict doctrine of is that true here ought clearly when the theory, to recover under either gratuitous justification and there is no for the Physical injury persona] restriction. not limited to injury physical merely harm is not economic loss. permit recovery liability To in tort on the basis of strict personal injuries when the user or consumer suffers product from an accident caused a defective but deny recovery physical injury property for to his suf- fered same occurrence distinction is a inconsistent body whole of the law of torts. p. Section 402A of Restatement, 2d, Torts is a comprehensive and accurate statement of the law of liability products. strict tort seller of defective adopted should this court. Clinton, J., concurring. opinion
I concur of White, J., C. but feel that declining the rationale for time to extend this liability beyond allowing doctrine of strict covery tort re- personal injury should be elaborated. Three related reasons, I indicate believe, the wisdom extending property damage the doctrine to cases. extension, believe,
First: Such I comes into conflict provisions with the Where Commercial Code. Uniform applicable tort doctrine of superfluous remedies under are U.C.C. U.C.C. provisions pertaining to exclusion modification damages, warranties, limitation on modification and repealed limitation of is, remedies eliminated, are by judicial §§ fiat. U.C.C. On 2-316, 2-718, 2-719, general problem (Second) see Titus, Restatement Torts, Code, Section 402A and Commercial the Uniform 22 Stan. L. Rev. 713.
Property damage types damage con- one of the 2-715(2) cerning (b), §§ which the rules. U.C.C. makes *21 2-719(3), injuries resulting U.C.C. from breach Personal regulation warranty by subject are also the matter of the U.C.C. that then do make determination How we damages compensable type of the one should be under damage liability, the doctrine of strict the other type compensable is not under that doctrine but (1) per- under the In U.C.C.? Two reasons exist: injury liability sonal cases strict ante- has a foundation independent provisions cedent to and sales justifies the U.C.C. such treatment. The This different upon special warranty foundation rests food cases. Bottling Asher v. Coca Cola 112 Co., 855, 172 Neb. N. (1961). Op Maj. W. 2d 252 Cit., Titus, See 772. In Kohler v. Ford Motor 2d Co., 428, 187 Neb. N. W. 601, that we indicated we relied on Asher and felt although warranty that case was couched terms, what really doing only changing we were in Kohler provides: displaced label. The U.C.C. “Unless particular provisions principles act, of law equity supplement provisions.” § . . . shall its 1-103, may argued grounds U.C.C. on these displace existing per- U.C.C. did not remedies so far as injury sonal is concerned. This is effect of our holding OpMaj. seq. in Kohler. Titus, Cit., 758, See et
(2) provisions jus- itself U.C.C. contains which tify 2-719(3), such different treatment. Section U.C.C., damages
provides: consequential in- for “Limitation of goods jury person in the case of consumer prima damages facie but limitation unconscionable where loss is commercial not.” consequential Property damage included the term damage 2-715(2), § U.C.C. defined U.C.C. appear provisions It does not to me that the U.C.C. justify make be- distinction that the cases some of property consequential damage tween commercial damage recovery the doctrine of which under allow liability deny strict the latter. for it for the former but Seely See 9, v. White Motor 2d 45 Cal. Co., 63 Cal. Rptr. 2-715(2) reading 17, 403 P. 2d A sections 145. 2-719(3), together me to believe U.C.C., leads clearly warranty U.C.C. so limitations authorizes property damage far as is concerned. — although justification primary Second: A often — (as Kohler) unstated the doctrine of was in spreading cost of is that risk injured loss from the who turn manufacturer passes through higher that cost on or in either insurance charges products. for his the rationale in This was Greenman v. Yuba 59 Cal. Inc., Power 2d Products, Rptr. placed 57, 27 Cal. 697, 2d 897, 377 P. we primary reliance in Kohler. See, also, Franklin, When Liability Worlds Collide: Theories and Disclaimers in Defective-Product Cases, L. Rev. 1009. Stan. *22 Damages type ordinarily of here involved al- are ready collapse covered insurance, the contractor’s policy, risk builder’s surer he if the own in- contractor is his already spreading among the risk cost of utility all his customers. there it, As I see is no social transferring the risk of loss from insurer to an- one probably products liability other, in this case carriers the scaffold manufacturer and lessor of scaffolding. Transferring risk between insurers simply gives subrogation rise to claims additional be- utility tween insurers social I of this fail to see. can No doubt a be made argument reasonable for the fact that increases cost because now probably both insurers and conse- must consider same risks quently compensated in higher premiums.
The great value as a society place upon which we life and health doctrine so justifies liability far as is concerned. First personal injury party per- sonal insurance injury match the remotely does are damages which recoverable from tortfeasor, while insurance of the ordinarily we have earlier men- type tioned covers the completely loss and risks. spreads I
Third: agree Smith, in- J., important formation relating policy this area is inadequate. This, I believe added reason for not expanding the legal manufacturer hold- our beyond ing Kohler.
Lyell appellee Magruder, Mitchell cross- Patsy appellant v. L. appellant, Magruder,
cross-appellee.
209 N. 2d 585 W. July 27,
Filed 1973. No. 38852.