*2 JOHNSON, HESTER, JJ. Bеfore CIRILLO JOHNSON, Judge: is whether question before this court liability1 in strict for recov- recognize
courts should a claim (Second) Torts 402A 1. Restatement only in the losses,2 injury where ery of economic itself, is not the result of deterioration damag thereby untoward occurrence causing defect some ing product. pur- Inc. System, Rent A Car September
In 1971 Avis from International Har- chased certain number trucks corporations,- appellant In 1971 the vester Co. October Diaper Inc. and Ser- Rental Stork Industrial Uniform use in Avis -for their vice, Inc., leased the trucks from appellant corporations Then business. October from Avis. these same trucks purchased had allegedly of these trucks In December 1972 two frames, which were and failures in developed cracks Then, after the 1974 purchase Avis. repaired by trucks, developed allegedly more trucks cracks twelve repaired by These cracks were failures in the frames. *3 appellant corporations. corporations appellant
In of 1978 the June commenced Harvester, in International trespass against this suit trucks, design, man- negligent alleging manufacturer of the trucks, requesting damages for sale of the ufacture and answér, In under to the its repairs the cost of the trucks. the bar of the Matter, raised New International Harvester limitations, denied in their appellants statute of which damage” claim it reply, being “property that this alleging for trespass of limitation actions. was within the statute until A was undertaken discovery certain amount Harvester filed motion for March when International appellants’ claim was arguing that summary judgment, losses, allegations the com for that the solely economic harm has been defined as "an 2. An to recover for "economic” action value, damages inаdequate brought costs of action to recover consequent product, repair replacement the defective loss of injury any personal profits—without to other claim Note, Liability Jurisprudence, property." Loss in Products Economic Liability: Appel, Strict See also 66 Colum.L.Rev. (1976) Loss, (stating L.Rev. Recovery 13 Idaho "Economic" damages often to as direct itself is referred to the loss, bargain, replace- by cost of the loss on economic ment, measured repair). or cost of plaint defective, trucks were poorly designed and not adequate use, for their contemplated sounded in breach warranty, and that therefore the action was barred section 2-275 of the Uniform (UCC).3 Commercial Code
In answer to the motion for summary judgment, appellants argued inter alia that their claim for damages included not only repairs to the trucks but also a “diminu- tion in use expectancy,” and that their claim was indeed a tort In action. their memorandum of law in support of their answer the appellants raised for the first time the question of section 402A of the (Second) Restatement Torts, asserting that Pennsylvania law supported their ac- tion “under 402A and in negligence against the manufactur- er of trucks where defects cause damages sustained.”
The trial opinion its stated that the uncontradict- ed evidence plaintiffs established that were seeking damages for defects of quality evidenced internal deteri- oration or breakdown which constituted economic loss not recoverable a claim under strict liability, granted motion for summary judgment. appeal
On to this appellant court the purchasers of the trucks assert thаt (unspecified) defects in the trucks brought about the cracking and caused damages to the trucks, thus creating a cause of action for “property dam- age” under section 402A of the (Second) Restatement Torts. ’ believe,
We on the contrary, that the claim in this case is *4 precisely the of type envisaged claim by the UGC. See 13 § 2714, Pa.C.S.A. provides: which § Damages buyer 2714. of for regard breach in to accepted goods Code, Pennsylvania 6, 1953,
3. The Uniform Commercial April Act of 3, 1, re-enacted, P.L. seq., revised, No. § 1-101 et as amended and 12A 1, 1979, P.S. seq., repealed § 1-101 et was the Act of November P.L. 255, 86, No. It enacted § and transferred to Title 13 of the Pennsylvania change Consolidated Statutes without in substance 1, 1979, 86, the same act. See Act of November P.L. No. 7. 13 § (Purdon Pa.C.S.A. Pamp.1982). §§ 1101-9507 of tender.—Where (a) nonconformity Damages for (section notification given and buyer accepted goods hаs for nonconformi- 2607(c)) damages any as may he recover of ordinary in the course resulting of tender the loss ty in any determined of the seller from the breach events as. manner which is reasonable. warranty.—The
(b) for breach damages Measure of is the differ- damages for breach measure acceptance between place the time and ence at they would and the value goods accepted value warranted, cir- special unless if had they have been a different damages of proximate cumstances show amount. proper
(c) consequential damages.—In Incidental and consequential damages under case incidental and any consequential dam- (relating to incidental section 2715 also be recovered. ages buyer) may facts of this case agree appellants We do not with 402A of the Restatement application call for the of Section Torts,4 (Second) provides: which Liability Product for Special of Seller of 402A. Physical or Consumer Harm to User in a defective condition (1) sells any One who the user or consumer or his dangerous unreasonably harm physical thereby subject consumer, proper- his the ultimate user or or to caused to if ty, selling in such
(a) the seller is the business engaged product, the user or consum- (b) expected it is to and does reach in the condition which it change er without substantial is sold. (1)
(2)
applies although
The rule stated in Subsection
(a)
possible
exercised all
care
the seller has
product,
and sale of his
preparation
adopted by
Supreme
402A was
Court of
4. Section
Zern,
Pa.
(b) the user or bought consumer has not the from or entered into any contrаctual relation with the seller.
There are two
presented
lines of cases on the
by
issue
this appeal.
view,
There
the majority
led
the land-
mark
Supreme
decision
Court of California in Seely v.
9,
Motor
White
In plaintiff purchased a truck for Seely heavy-duty hauling. the beginning purchasers From experienced a “galloping” truck, problem attempted with the which they repair. Then one day failed, brakes the truck overturned, personal causing injuries resulting no but over five thousand dollars’ of damage worth to the truck. court, supreme California with disagreeing the New Jersey court, ruled system recovery UCC superseded not by the doctrine of which applied to actions for personal injury property damage only, alone, for not actions economic loss there could no be recovery injury for the to the truck under strict liability. part reasoning As of its the California court considered the purpose the two distinct remedies: *6 tort drawn between the law has that
The distinction for recovery warranty and injuries recovery physical for rest on does not and arbitrary is not loss economic causing in an accident having plaintiff of one “luck” rather, an rests, on The distinction injury. physical a manu- responsibility nature of the of the understanding He his distributing products. in undertake must facturer injuries physical for be held liable appropriately can to match goods his requiring by defects by caused conditions in terms of safety defined standard held He cannot be of harm. risks unreasonable create in the con- products of his performance for the level product that the agrees unless he business sumer’s A consumer demands. meet the consumer’s designed to the manufacturer the will of charged at not be should buys he when physical injury the risk of bearing with however, fairly be can, market. He on the product match his not will product the risk that the charged with agrees manufacturer unless the expectations economic a manufac- negligence, for in actions that it will. Even injuries physical for damages limited to liability is turer’s The alone.... economic loss recovery no for and there is liability limits strict similarly of Torts Restatement property. person harm to physical 151, at 403 P.2d at 63 Cal.2d Motor Seely White omitted). (citations at 23 Cal.Rptr. 45 developed primarily liability was products doctrine of The for compensated consumers could be by means which as a caused injury personal Note, Liability in Commercial Products See products. (1976). generally, 1061 See Transactions, Minn.L.Rev. Jurispru- Liability Products Note, Loss in Economic (1966). theory, dence, 66 Colum.L.Rev. Code, however, the Uniform Commercial governed by now inju- other bargains on for losses for provides meet the failure of the resulting from ries has breached the seller buyer where expectations Ribstein, buyer. to the See warranties express implied Cases, Product Deciding Guidelines Economic Loss (1978).5 Mercer L.Rev. 493
It would seem that the Seely Santor lines cases line Seely differ focuses on the type harm product, caused the defective whereas the Santor line seems view a defective an essentially unmer- UCC, chantable under see 13 Pa.C.S.A. § 2314(b). Note, See Products Liability in Commercial Transactions, 60 Minn.L.Rev. 1068-69
We believe
of harm”
validity
“type
approach,
particularly on the facts of the case before us which involve
buyer
a commercial
of trucks for use
its business claim-
*7
ing
expenses
its
because the
it
trucks
leased and later
purchased were
An
allegеdly defective.
analysis
the
law in Pennsylvania
case
and elsewhere supports this view.
Protection,
In
Inc.,
Lobianco v. Property
Pa.Super.
292
(1981),
A
law is
applying Pennsylvania
Pennsylvania
recent case
Caterpillar Tractor
Corporation
Glass Sand
(3d Cir.1981).
Corpora-
F.2d
Glass Sand
Caterpillar
against
brought
diversity
tion
action
[PGS]
manufacturer,
damages it incurred
Tractor, the
to recover
purchased from
of a fire in a front-end loader
result
out,
Caterpillar.
pur-
The fire
four
after
years
broke
chase,
hydraulic
lines.
in the front of
loader near
loader, although no
spread, severely damaging
The fire
*8
in
complaint
resulted. The basis of PGS’
personal injuries
(§ 402A)
a
negligence and
was the absence of
(In
fire
a footnote the
suppression
system.
or extinction
court
the
statute of limita-
explained
four-year
that
UCC
claim.)
court, predicting
The
tions had
barred the
possibly
address the
Supreme
how the
of
would
Court
prod-
the
of whether accidental
defective
question
injury
regarded
itself
as an
loss recovera-
uct
should be
economic
action,
the belief
only
warranty
expressed
ble
a contract
a distinc-
Pennsylvania supreme
that
court would draw
the
tion
the
of
to defective
that
type
injury
between
loss,
mere
and
that
type
injury
constitutes
economic
the
of
traditionally compen-
to the
of
harm
physical
amounts
sort
74
The court its earlier in Posttape PGS discussed deсision (3d Associates v. Eastman Kodak F.2d Cir. 1976). In sought film maker in- Posttape to recover profits resulting creased costs and lost from defective film supplied by Posttape Kodak. The court decided that sec- tion 402A was of in a utility setting doubtful commercial when damages the were consequential and arose from a non-dangerous impairment quality product, and provisions the were better such UCC tailored to a situation. PGS noted that “implicit Posttape [the ]
opinion ais recognition the difference for between claims economic loss and the physical damage to addition, 652 F.2d at “In product.” [Posttape the ] opinion alluded the policy distinctions that make the proper U.C.C. the vehicle for redressing losses occasioned by impairment of quality, make 402A the superior for-rectifying consequences device thе de- dangerously fective products. PGS, at [Posttape, 755.” F.2d] F.2d at 1174. reviewing
Finally, the circumstances of the al- damage PGS, that, leged by the court decided as the nature of the defect the it type poses factors, risk are the guiding fire, and that as the the was result of a hazard, safety defect constituted a complaint brought by to fall appeared PGS within the policy of tort law that the manufacturer should bear risk of hazard- products. Furthermore, ous at court, Id. 1174-75. said complaint did not appear implicate policies law, because there were no allegations that the loader of poor was quality perform otherwise unfit to its Id. at 1175. The job. court concluded that Pennsylvania courts would regard injury stemming from the allegedly defect in the hazardous loader as the sort of physical injury compensable under tort It law. hazardous condi- tion that removed the situation from the embrace *9 UCC. Circuit, Third Appeals Court of for the
The United States case, Court of Supreme in another how the predicting, economic losses question Illinois7 decide the whether would ruled that liability, under tort theories of are recoverable not under strict of a roof could recover purchaser the to perform.8 of the roof liability or for failure negligence explained: the court As personal injury strict rationale behind eco- alleging only to claims
situations is not well-suited the results from the failure of nomic loss. Economic loss expected the by buyer the level perform measured the frequently by loss is most the seller. Such in the by difference infirmity cost of repairing it as it exists and the value would value Thus, expected. if it as economic performed have had n always incurred the owner of loss almost it into persons merely use or come product, not who a purchaser, particularly it. The original contact with protect & can large Laughlin, such as Jones company performance by risk against unsatisfactory itself may it choose to bargaining warranty. Alternately, for a purchase a lower forego warranty protection favor of do product. Subsequent purchasers may for the price product. In bargaining price likewise in over event, owner of the persons because other than the any resulting incur not economic losses from product will performance, costs associated with product’s poor price in the likely economic loss will be reflected would to be no need to product. accordingly There seem mechanism through non-price internalize these costs liability. such explained Appeals court had concluded
7. The Court of district state would Illinois law under its look to analysis/significant contacts” choice of law test. See 626 "interest at F.2d square finishing roof to cover a 1.3 million foot steel 8. The was built region subject high speed plant in a and extreme fluctuation winds blistered, Shortly completion temperature. after its the roof wrin- in kled, later, cracked; result, parts it blew As a water off. causing damage. plant serious entered the *10 Jones Laughlin & Steel Corp. Johns-Manville Sales Cir.1980) Corp., (3d (footnote omitted). 626 F.2d 288-89 The court further explained:
Finally, liability extension strict here proposed Laughlin appear Jones & to would conflict with the decision the Illinois Legislature enact the sale provisions (UCC)____ of the Uniform Commercial Code Section 2-313 the Code recognizes the existence of § warranties, express 2-314 implied enacts an war- ranty merchantability and fitness. Section 2-314 pro- vides that ..., excluded modified a warranty “[u]nless the goods shall be implied in a merchantable contract for their merchantable, sale .... To be alia, goods, inter ordinary must be “fit for the purposes such are goods which used.” ... Code also however, provides, that the parties a sales contract agree may buyer possesses warranty protec- no all, tion may at limit any any warranties reasonable § manner. Id. 2-316. The parties may agree even the implied exclude fit- warranty merchantability and ness if they writing, do so may modify implied § warranty by clear and 2- conspicuous language. Id. 316(2).
The extension of strict liability to cover economic losses in effect would amake manufacturer the guarantor that products all of its would continue to perform satisfactori- ly throughout their productive life. Inasmuch reasonably doctrine of liability not permit does a manu- facturer to limit its through the use of waiver or a limited warranty, importation of strict liability into the economic loss area supersede would effectively Yet, 2-316 of the nothing UCC. there is in prior opinions of the Supreme Illinois to suggest Court that it would an undertake such encroachment on legislative prerogative. Supreme As the Court Idaho remarked recently dealing very question: with this legislatures Union, of nearly every state in the [T]he adopted have which carefully painstaking- UCC parties in a sales rights sets forth the between ly Court, loss. regard to This transaction with economic this the tort law of in the common law evolution of in this state, must action recognize legislature’s when of commercial law аnd should accommodate area principles tort law with the possible evolution laid down in v. International Harvester UCC. [Clark 326, 335, (1978)]. Co., 99 P.2d Idaho *11 Supreme not that the Illinois Consequently, we do believe in the liability of tort would extend its common law Court suggested by Laughlin. manner Jones & reasons, the Illinois foregoing predict For the we hold are not Court would that economic losses Supreme tort law. principles under claims based on of recoverable omitted). (footnote at 289 Id. rationale, of appears to coalesce with the view
This which issue, to this to be on this seems court jurisdictions most one, Pennsylvania the one courts correct which adopt. should in in support jurisdic- find further recent cases other
We
following
majority
view.
tions
pur-
has held that the
Supreme
The
Court Nebraska
loss-
a
recover economic
chаser of defective
cannot
harm
negligence
liability
physical
under
absent
es
In
product.
caused
the defective
persons
by
Co.,
v.
Tube
213 Neb.
Corp.
National Crane
Ohio Steel
782,
(1983),
a
plaintiff
In argued Northern the buyer Power further that the oil mechanism, pressure being shutoff having defective and damaged engine, was a resulting plaintiff’s (i.e. to the property, generator caus- ing “property damage”). argument This the same presented to this court appellant corporations now before us. The Alaska court to the responded argument thus:
While proposition we think this may validity have some *12 where the components provided are sold separately are by different suppliers, justification we find no or support for such rule a where both are components provided by one supplier as of part complete integrated pack- a and age. Since all very simplest but the machines of have component parts, such broad a holding require a would finding of “property damage” in virtually every case where a product damages a holding itself. Such would eliminate the distinction between and strict products liability.
Northern Power & Engineering Corp. Caterpillar v. Trac- tor, (footnote 623 omitted). P.2d at 330 The Alaska su- preme court ruled that a product when defective a creates in, alia, processor complaint In Moorman food filed a inter strict liability negligence and for the resulting economic losses from an alleged grain storage in Supreme crack tank. The Illinois Court concluded type proteсted by that this was a commercial loss the the warranty. law
79 property, or other persons hazardous to potentially situation liability danger, result of that loss occurs as a and though even the theory recovery is an appropriate tort at 329.10 itself. P.2d product is confined to the damage there was no evidence generator the case But because danger system presented any that the defective shut down engine simply but caused property, or other persons only. economic loss this was up stop operating, to seize dispose likewise this rationale and We borrow from shall not clas- damage We appellants’ property argument. leading manufacture to deteriora- sify allegedly defective in the section 402A property damage tion sense. similarly preferred of Minnesota has Supreme Court arising and held that economic losses rationale Seely transactions, involving excepting of commercial those
out recov- to other are not personal injury damage property, liability. or strict negligence under tort theories erable Minn., 311 Corp., Superwood Siempelkamp Corp. (1981)(where plate press of a hot buyer N.W.2d action for cylinder brought failed an which press profits). for lost Texas, Tex., Shivers, In Inc. v. Nobility Homes of Texas (1977), held Supreme S.W.2d Court could an action bring of a defective mobile home buyer manufacturer, loss, negli- to recover economic against and in not in strict gence warranty, but because unreasonably dangerous was not did not cause buyer property. harm to the or to his physical authority Extrapolating from above-mentioned In an following formulate the rule: аction between we design, manufac enterprises, commercial where alleged, nothing ture and sale of a where there is *13 is record indicate that the defect a condition the a 10. The Alaska also ruled that in order recover on such court (1) proximate theory plaintiff was a of show that the loss result must defect, (2) dangerous and that the loss occurred under the kind of liability. Id. a basis for strict circumstances that made dangerous to potentially persons or to property, and where defect purported results in progressive deterioration of itself, the buyer’s cause action for its eco- against losses nomic the seller is in breach under UCC.
Furthermore, complaint case, in the instant cap in trespass tioned and alleging “negligence and carelessness in designing, ... manufacturing, selling trucks,” (1) nevertheless is totally insuffiсient state a cause of action in strict liability, which claim only was asserted at the time of the (2) motion for summary judgment its very language that the adequate trucks were “not for their contemplated use” clearly possible states cause action in breach of is warranty,11 and therefore barred because it brought was more than years four after tender delivery trucks. 2725. Pa.C.S.A. The order trial granting summary judgment is affirmed.
HESTER, J., files dissenting opinion.
HESTER, Judge, dissenting:
I dissent. The issue for review is whether a cause of
action
from
arising
a defective
causing damage
only to the product itself
properly grounded
tort under
§ 402A of the
(2d). Although
Restatement
Torts
this
issue has not been
adjudicated
finally
appellate
our
courts, the United States Court of Appeals for the Third
Circuit, in Pennsylvania
Corp.
Glass Sand
v. Caterpillar
(3d Cir.1981),
Tractor
Section 402A of (2d) Restatement Torts adopted by the Pennsylvania Supreme Court in v.Webb See, 2313, 2314, e.g., 11. 13 Pa.C.S.A. §§
81
424,
(1966).
Zern,
Liability
422 Pa.
220
853
under
A.2d.
1)
402A is restricted as follows:
the defendant must be
product alleged
in the
to be
engaged
selling
business
defective; 2)
prod
must render the
defective condition
3)
must be unrea
unreasonably dangerous;
product
uct
4) the
dangerous
property;
to the consumer or his
sonably
to the ultimate user or
physical
must cause
harm
product
consumer,
and, 5)
expected
“the
is
or his property;
does reach the user or consumer without substantial
and
1
it
change
the condition which was sold.”
damage
It is not in
that
here was to the
dispute
themselves,
trucks.
products
namely,
delivery
damage
prod-
to the defective
Appellants
physical
aver
§ 40.2A;
purview
conversely, appellee
uct lies within the
an economic loss for
solely
maintains that such
is
sought
which' retribution is
in commercial law.
traditionally
for
Ascertaining
liability
physical
the correct theories of
person,
to the consumer’s or ultimate user’s
or to the
injury
or user is not an
non-defective
of the consumer
upheld
402A has been
fre
assignment.
abstruse
Section
for these
quently
consistently
as the mode of recourse
injuries.
Corp.,
462
Brantly Helicopter
See Berkebile
83,
(1975);
Pa.
337 A.2d
&
Speyer,
893
Inc. v. Humble Oil
(W.D.Pa.1967),affirmed 403
F.Supp.
Refining
(3d Cir.1968),
F.2d 766
certiorari denied 394 U.S.
abounds,
Ambiguity
S.Ct. Physical Special Liability of Sellers of Products for Harm to User Consumer. (1) any product unreasonably who sells in a defective condition One dangerous property, subject or consumer or tо his to user thereby physical caused the ultimate user or harm consumer, property, or to his if (a) selling engaged product, the seller is in the business of such a (b) expected it is and does reach the user or consumer without change in which it is sold. substantial in the condition (2) (1) applies although subsection rule stated in (a) possible preparation all care in the seller has exercised product, and sale of his (b) bought the user or consumer has not from or any entered into contractual relation with the seller.
ever, where effects of the reach defect no further than the defective itself.
Damage
incurred
product only
the defective
is often
solely
considered
plaintiff
economic loss where the
suffers
pocket expenses,
out of
loss of
bargain,
replace
cost
*15
or repair.
Co.,
ment
Seеly
v.
White Motor
Cal.2d
Cal.Rptr. 17,
This rule by projected Seely, supra, and Mid Continent, has in supra, qualified been .diverse fashion. § The applicability 402A and has warranty law been by considered some to weigh heavily upon courts the nature of the defect and the in manner which the devel- oped. example, For in Pennsylvania Glass Sand Corp. (PGS) v. Caterpillar supra, Tractor the court distin- guished both theories on that basis. PGS filed its diversity § action in negligence 402A; and strict under it did allege not of warranty. breach cause of action arose from a design defective in a that front-end loader PGS purchased from defendant/manufacturer. Following years PGS, four front by portion operation caught loader fire. Due to the defendant’s omission of a fire extinguishing system design, from spread the fire $170,000 exрended undeterred. repairs, PGS in rental of a of fire suppressant installation replacement temporary summary motion for defendant’s Similarly, equipment. court on that grounds the trial granted judgment loss not recoverable economic purely suffered a PGS had tort. our premise espoused by
Although impressed 432 Pa. Soya, v. Central Supreme Court Kassab § 402A and are i.e., implied warranty that (1968), A.2d 848 application, Glass Pennsylvania coextensive (cid:127)nearly appli- equally the theories were not opined Sand It held that disputes. product-oriented in all cable qualita- redress from are more suitable for action causes of ad- defects, appropriately 402A is more whereas tive damage. causing defects calamitous to hazardous dressed Sand, words, according to Glass In other resulting itself damage to supra, *16 еco- deterioration or breakdown from internal gradually § to the defective loss; physical injury 402A nomic of violent accidents. arise as the result must Sand, was supra, Glass Pennsylvania The defect extinguishing a fire equipped a loader with design failure to particu- result, conflagration the risk As system. haz- especially of the loader operation and the larly acute concluded, court Glass Sand Pennsylvania ardous. The properly brought therefore, the cause of action was that in. under 402A. tort Sand, supra, Glass acknowledge
I dam- of the twelve here. The apply inspections not does front brack- spring for disclosed broken welds aged trucks cross-members, rails, ets, spring frame fractured broken straps, tank support mounting plates gasoline fractured support posts. and twisted mounts shock absorber broken three two оr by appellants detected damages were These and initial agreement lease of the following execution years therefore, trucks; gainsaid it cannot be operation that damages here were incurred more gradually than abruptly.2
Certain
have
jurisdictions
expanded the exception to the
pure
theory beyond
economic loss
sudden,
calamitous
infliction of harm to the defective product itself. Where the
defect causes the defective
alone to incur damages
manner,
in a
gradual
yet
deterioration is not commensu-
rate
ordinary
expected
with
wear and tear to the
product, the common law tort theory of negligence is a
permissible recourse. Spence v. Three Rivers Builders
Inc.,
and Masonry Supply,
120,
353 Mich.
The “consumer expectation” test adopted by Spence,
supra, and
Sons,
Oliver B.
Inc.,
Cannon &
supra, was
applied to a strict liability cause of action
5th Circuit
Court of Appeals in Two Rivers Co. v. Curtiss Breeding
Service,
(5th Cir.1980),
85 Instead, first led it was dispositive. loss be type and strict sales distinction between categorical simple Texas, v. Shiv- Inc. Homes proposed Nobility liability i.e., governs law (Tex.1977), that sales ers, S.W.2d 77 557 consumers sellers and relationship between the economic nature the distinct addresses liability whereas strict goods, distinction, according to Two This physical injuries. car- responsibility the extent Rivers, supra, determines For marketing product. his manufaсturer ried aby products those only for instance, he liable strictly will be become dangerous” thereby “unreasonably that are “un- is use. Whether for their intended unsafe therefore, the manu- and, subjects reasonably dangerous” expectations on the depends liability, facturer to strict are afflicted as most cattle breeds Insofar the consumer. defects, the Two Rivers genetic type with some expecting chargeable with was plaintiff concluded containing defective of the bull semen accepting the risk or an unavaila- liability strict spermatozoa; consequently, of action. ble cause damages little care whether jurisdictions other
Still
itself, whether
upon the defective
imposed only
are
or whether the
gradually,
or
damages
violently
accrued
For
the consumer.
expected by
damages were
particular
shall be
damages
injuries
example,
products
places
who
the manufacturer
borne
commerce;
injuries
such
the cost of
the mainstream of
powerless
the consumer who
shall not rest with
damages
Co., 26
himself,
Davidson Motor
Harley
v.
protect
Cova
(1970);
A & M
602,
800
Santor v.
182 N.W.2d
Mich.App.
52,
(1965); where
Some
policy
cite
grounds for determining the
§ 402A,
applicability of
In Jones & Laughlin Steel Corp.
v. Johns-Manville
(3d
Sale
Corp.,
Cir.1980),
F.2d 280
original
purchaser of a smooth-surface asbestos roof
sustained damage to its roof and water damage to steel
products
mill,
inside its
and experienced electrical outages.
It was not essential that the defective design of the roof
caused damage beyond
itself or whether the
damage was expected
inflicted;
or abruptly
the сonsumer’s
ability to protect itself was the controlling interest. The
plaintiff’s injury was considered an economic loss because it
capable
protecting
itself through bargaining for a
foregoing warranties in lieu of
pur-
a lower
chase price. Furthermore,
the Jones & Laughlin court
opined, the extension of strict
cover economic
losses would effectively circumvent
2-316 of the Uniform
Code;
Commercial
it would preclude the manufacturer from
limiting his liability through disclaimers or limited warran-
ties.
Finally,
recognition of Clark v. International
Harvester
(1978),
99 Idaho
Obviously, foregoing intimates, as the discussion whether § 402A is applicable to injuries sustained the defective mercurial, issue. I unsettling legal is a view alone *19 proper- other damages sustained to the distinctions between itself, product to the defective damages and sustained ty sudden, and damage violent along with distinctions between perfunctory having rules damage, gradually-developing policies and correlation to the definitions little incredulous that the It is indeed law. and strict § frame defects on whether the depends 402A application to damage further physical to incur appellants here caused persons proper- or the property their other persons, their reason, Moreover, it is devoid of equally parties. of third ty § the cracks and fractures only 402A here where employ to and in calamitous fashion. suddenly frames occurred to the Commer- language of the Uniform peruse I to prefer § (2d) Torts to the Restatement of 402A of cial Code commercial statutory provision of the issue. No dispose extent, of products any application supplants, law little effort demanded it would have liability. Additionally, restrict specifically the Restatement to of the authors of before imposed must be property kinds of to which § Instead, only is made reference 402A is actuated. term such a why I no reason perceive “property” itself, regardless exclude the defective should is inflicted. how harm this Common- adopted by drafted and 402A was
Section injury the risk purpose placing for the wealth minimize loss. It most able expense upon party is a commercial party the injured not whether matters person is injured consumer or whether individual not it should Similarly, the manufacturer. with privity prod- is the damaged property matter whethеr product. the defective contacting uct itself or other on the statu- solely depend should applies 402A Whether is unrea- the defective whether limitations of tory in the engaged the seller is whether sonably dangerous, whether selling product, such business without reach the consumer fact to and does expected proximate is the the defect change and whether substantial cause of injury. applicability Its should not depend on the traditional distinctions tort and between contract law or the categorical rules discussed above.
I believe that cause of action appellants’ was properly law; therefore, products liability filed under I would hold summarily that it was error to dismiss their complaint due timely filing applicable to its within the six year limitations period. I
Accordingly, would reverse.
Submitted 1983. July Filed