This appeal arises out of a product liability action involving a defective combine. The trial court granted summary judgment in favor of defendant Deere & Company on the ground that plaintiff had not presented evidence sufficient to create a jury question as to whether the combine was unreasonably dangerous to persons or property.
See
ORS 30.920. In reviewing plaintiffs challenge to that ruling on appeal, we view the facts in the light most favorable to plaintiff, along with all reasonable inferеnces flowing from those facts, and uphold the judgment if there is no genuine issue of material fact and defendant is entitled to judgment as a matter of law. ORCP 47 C;
Jones v. General Motors Corp.,
Although the parties disagree as to their significance, the facts in this case are not in dispute. Plaintiff purchased a combine and platform header with pickup reel (“combine”), manufactured by defendant, from a local dealer for use in his custom farming business. During the 1997 harvest season, plaintiff used the combine to harvest grain for 10 farmers. Near the end of that season, plaintiff learned from one of those farmers, who noticed a “terrible streak of green” in his field, that the combine had left a substantial amount of grain on the ground after cutting it from the stalks. Plaintiff then discovered that the same thing had happenеd to the crops of all 10 farmers for whom he had harvested that summer. Plaintiff paid all 10 farmers for the losses they allegedly sustained as a result of the combine’s malfunction, which totaled $106,255.93. Plaintiff then filed a “complaint for indemnity” based on a product liability theory, alleging that the combine “experienced a manufacturing defect in that it failed to properly separate, collect and store seed from the stalks of the rye, wheat, barley and oat grain straw.”
Defendant moved for summary judgment assеrting, among other things, that the alleged defect did not make the combine “unreasonably dangerous,” as is required for recovery under ORS 30.920. The trial court agreed with defendant that “the damage alleged in plaintiffs complaint does not *81 establish that the prоduct was unreasonably dangerous to persons or to property” and granted defendant’s motion. 1
On appeal, the parties renew the arguments that they made to the trial court. Specifically, plaintiff argues that the defect in the combine rendered it unreasonably dangerous because it “destroyed a significant amount of the very product it is designed to harvest.” In addition, plaintiff asserts that the determination of whether a defect makes a product unreasonably dangerous is for the jury аnd should not have been decided by the court in the context of a motion for summary judgment. In response, defendant does not dispute that the combine was defective or that it sold (through the dealer) the combine to plaintiff. Instead, defendant contends only that the loss that plaintiff sustained was purely economic in nature and that, as a matter of law, a jury could not find on the basis of such “damage” that the defect in the combine rendered it unreasonably dangerous. 2 As we explain below, we agree with defendant.
Product liability actions in Oregon arе governed by ORS 30.900 to 30.920. ORS 30.920 sets out the elements for recovery in a product liability action. As relevant to this case, it provides:
“(1) One who sells or leases any product in a defective condition unreasonably dangerous to the user or consumer *82 or to the property of the user or consumer is subject to liability for physical harm or damage to prоperty caused by that condition[.]
"*****
“(3) It is the intent of the Legislative Assembly that the rule stated in subsection! ] (1) * * * of this section shall be construed in accordance with the Restatement (Second) of Torts sec. 402A, Comments a to m (1965).”
(Emphasis added.)
Under that statute, to recover on a product liability theory, a plaintiff must establish not only that the product was defective but also that the defect was of a type that rendered the product unreasonably dangerous to persons or property. Not every defect that causes a product to be in a condition not reasonably contemplated by a user is an “unreasonably dangerous” one.
Brown v. Western Farmers Assoc.,
Ordinarily, the determination of whether a product is unreasonably dangerous is a jury question.
McCathern,
Neither ORS 30.920 nor the applicable comments to section 402A of the
Restatement
set out what is required to demonstrate that a product is unreasonably dangerous. The Oregon Supreme Court’s decision in
Brown,
however, provides significant guidance relevant to the particular facts of this case. In
Brown,
the plaintiffs were egg farmers who bought defective chicken feed from the defendant that, when fed to the plaintiffs’ chickens, caused their eggs to taste bad and rendered the chickens valueless. The plaintiffs sued the defendants on a product liability theory to recover the value of the unpalatable eggs and the economically worthless chickens, as well аs lost profits and the cost of the defective feed.
*84 “We believe * * * that the term ‘unreasonably dangerous,’ as used in [Restatement] Section 402A as the basis for the imposition of strict liability, without proof of negligence, was not intended to be so ‘watered down’ as to extend to any defect which in any way may decrease the value of property [.]”
Id. at 480.
Our more recent decision in
Gladhart
likewise involved property damage. We concluded that the complaint, which alleged damage in the form of the physical destruction of the plaintiffs’ property, was adequate to state a product liability claim. In
Gladhart,
the defendants sold the plaintiffs grape plants for their vineyard that were guaranteed to be free of a microscopic aphid known to kill grape vines. The plaintiffs later discovered that their vineyard had become infested with aphids that allegedly had been introduced by the defendants’ plants.
In combination, Brown and Gladhart establish that mere economic loss unaccompanied by physical injury to property will not suffice for a product liability claim but physical destruction of, or perhaps other significant physical injury to, the property will. 7 Here, plaintiff alleged and presented evidence only of economic loss. The defect in the combine kept it from performing the function for which plaintiff *85 had purсhased it: harvesting grain. Plaintiff alleged that the combine failed to “properly separate, collect and store” the grain after cutting it from the stalks, thus reducing the amount of grain harvested by leaving a substantial amount of the crop lying in the field. The summary judgment record establishes that plaintiff learned of the defect in the combine when one of his farmer clients reported seeing a “terrible streak of green” in his field. In other words, the client saw that the grain had germinated, suggesting that it remained intact and viablе. In short, the defect in the combine may have made it commercially impractical for plaintiff to collect the grain off the ground. But that fact at most reduced the economic value of the grain crop, which is a type of “damage” that, as a matter of law, does not equate with unreasonable dangerousness. See Brown at 480. Viewed in the light most favorable to plaintiff, the summary judgment record establishes only economic losses identical in nature to those suffered by the egg farmers in Brown — that is, ecоnomic losses unaccompanied by physical injury to plaintiffs property.
Consequently, because plaintiff did not produce evidence that the defective combine physically injured or destroyed other property, a jury could not find the defect to be unreasonably dangerous. The trial court therefore did not err in granting summary judgment to defendant.
Affirmed.
Notes
Plaintiff later moved for reconsideration. The court granted that motion but adhered to its previous decision. Plaintiff contends that, based on the lеtter opinion adhering to the original ruling, the trial court also reasoned that the grain did not qualify as “property.” We do not understand that to be the trial court’s position. Even if plaintiff is correct in that regard, however, we affirm the trial court based on its rationale in its original letter opinion granting summary judgment that the plaintiff presented insufficient evidence that the combine was “unreasonably dangerous to persons or to property.”
Defendant makes two additional arguments. First, it argues that plaintiff’s clаim should fail because plaintiff does not own the property that was allegedly damaged by the combine. Defendant did not raise this argument below, and we decline to consider it for the first time on appeal.
Second, defendant contends that thе combine purchase agreement, which contained a limited warranty and provisions limiting defendant’s liability, precludes plaintiff’s product liability claim. Given our resolution of the adequacy of plaintiff’s evidence to create a jury question on аll elements of plaintiff’s product liability claim, we need not reach that argument.
Although the legislature had not adopted section 402A of the
Restatement
at the time that the court decided
Brown,
the Oregon Supreme Court previously had adopted section 402A as a matter of common law.
See Heaton v. Ford Motor Co.,
ORS 30.910 provides:
“It is a disputable presumption in a products liability civil action that a product as manufactured and sold or leased is not unreasonably dangerous for its intended use.”
In
Brown,
the court left open the question whether a defect that threatened only рroperty and not persons could be “unreasonably dangerous.”
Brown,
Applying ORS 30.920, a federal district court reached a similar conclusion in
Carpenter v. Land O’ Lakes, Inc.,
Because the summary judgment record in this case establishes no physical injury whatsoever, we need not and do not decide in this case the extent of physical *85 injury, short of destruction, that is necessary to create a jury question on the issue of unreasonable dangerousness.