499 N.E.2d 387 | Ohio Ct. App. | 1985
The plaintiff customer appeals from a summary judgment dismissing her claim against the defendant optical supplier as barred by limitations. The optical supplier contends that R.C.
The two years allowed by R.C.
The customer's complaint alleges:
"1. Plaintiff states that she received optometrical services from the defendant, Glenn A. Toth [later voluntarily dismissed pursuant to a settlement], while the defendant was in the course and scope of an employment or agency relationship with the defendant, Pearle Vision Center.
"2. Plaintiff states that defendant, Glenn A. Toth, negligently performed such services, that said defendant breached contractual obligations to perform such services within the standard required by the community of optometry in which said defendant practices, and that said defendant fraudulently and in reckless disregard of the rights of the plaintiff failed to disclose that such services had been performed in a substandard manner.
"3. Plaintiff states that she and her mother purchased contact lenses from the defendant, Pearle Vision Center, on or about January 22, 1979, or February 12, 1979.
"4. Plaintiff states that she was in privity of contract with the defendant, Pearle Vision Center, at the time of such purchase of contact lenses, under Section
"5. Plaintiff states that she suffered bodily injury as a result of using the contact lenses which the defendant Pearle Vision sold to her, which injury includes consequential damages under the Uniform Commercial Code.
"6. Plaintiff states that the defendant, Pearle Vision Center, breached the implied warranty of merchantability, as set forth in the Ohio Revised Code, Section
"7. Plaintiff further states that the defendants breached express or implied warranties in the sale of goods, or in tort, for which they are strictly liable to the plaintiff, including any incidental and consequential damages she has suffered.
"8. As a result, plaintiff incurred optometrical and medical expenses, and wage loss, and that her damages will continue into the foreseeable future."
The plaintiff's deposition stated that she was fifteen years old when she dealt with the optical supplier. She reached majority on May 22, 1981. Thus, the time allowed by R.C.
Unless a more specific limitations statute applies, R.C.
However, R.C.
The commercial code does not apply here unless (a) the parties are in privity, (b) the claim arises from a sales contract, and (c) the transaction concerned the sale of goods rather than the provision of services. R.C.
Damages from a breach of warranty in such a sales contract include the difference between the value of the goods promised and the goods delivered. R.C.
The customer's claim against the optical supplier for the optometrist's conduct apparently constitutes a claim for allegedly improper services. Hence, the commercial code and its limitations provision would have no application to that claim, and R.C.
Therefore, we sustain the customer's single assignment of error. We reverse and remand the case against the optical supplier for further proceedings on any claim for breach of the alleged sales contract.
Judgment reversed and cause remanded.
JACKSON, J., concurs.
PATTON, J., concurs in judgment only.