holding that, while the limitation was not unconscionable, there were disputes of fact as to whether the buyer was aware of the limitation at the time of the sale, such that the limitation became part of the agreement, thus precluding summary judgment
How later courts described this case
- holding that, while the limitation was not unconscionable, there were disputes of fact as to whether the buyer was aware of the limitation at the time of the sale, such that the limitation became part of the agreement, thus precluding summary judgment
- denying summary judgment after finding that a limitation of liability was not unconscionable because there was still a genuine issue of fact as to whether the buyer was aware of the limitation at the time of the sale, which would mean there was no mutual assent
- stating that it is sufficient that the “usage is one of which the parties are or should be aware”
- determining the existence of an express warranty under Indiana’s commercial code as a matter of law
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Hyundai Motor America, Inc. v. Goodin, 2005 Ind. LEXIS 142 (2005)
621 N.E.2d 1078, 1086 (Ind. 1993), abrogated on other grounds by Hyundai Motor Am., Inc. v. Goodin, 822 N.E.2d 947
The opinion
DICKSON, Justice,
concurring and dissenting.
I dissent to the majority opinion's determination that the plaintiff's damage was not sudden but gradually-evolving, thus precluding recourse under the Indiana Strict Products Liability Act. The issue is one of fact and should be left for determination at trial.
In contrast to the majority's emphasis on the slow development of fruit blotch infection of the watermelon crop generally, I prefer the view of the Court of Appeals:
The determination of whether damage is "sudden" will necessarily depend on the unique facts of each controversy, and will ordinarily be resolved by the trier of «fact. We also agree that in making this determination, factors such as the nature of the defect, the type of the risk, and the manner in which the injuries arose should be considered. The facts here are not so one-sided as for us to be able to say, as a matter of law, that Hall Farms's damage was or was not sudden. Resolution of this issue is properly left for the fact finder.
Martin Rispens & Son v. Hall Farms, Inc., (1992), Ind.App., 601 N.E.2d 429, 439 (citations omitted).
For purposes of the summary judgment proceeding, it is understood that Hall Farms claims destruction of its 1989 watermelon crop from fruit blotch caused by bacteria carried on or in hybrid watermelon seed produced by Petoseed Company, Inc. and purchased through Martin Rispens & Son, Inc. The seeds were planted in greenhouses, and the resulting seedlings were transplanted to fields approximately one month later. At harvest time, the disease first appeared on a watermelon as a pea sized dot which grew quickly, ultimately manifesting itself as a large purple blotch on the growing melon. Soon after some watermelons were first seen with the blotch, the condition was observed throughout the entire field.
Unclear, however, are substantial questions of fact. Were all of the Prince Charles variety seeds affected by the bacteria at the time of purchase, or were just some of the seeds infected whereby the disease was transmitted to otherwise healthy seeds or plants in the fields? Was the damaged watermelon crop exclusively the fruit of the Petoseed hybrid seed, or did the damaged crop include watermelon grown from other seed? Also unresolved is whether the acquisition of the bacteria by an otherwise healthy seed or plant nee-essarily produces an unhealthy plant and results in damaged watermelon. The answers to these unresolved questions could demonstrate that a "sudden" event oc-
*1092 curred with the transmittal of bacteria to healthy seeds or plants, rather than through the process of germination, growth, and development of blighted fruit. The factfinder could find such transmittal to be "losses resulting from sudden, major damage," thus constituting damages available under the definition of "physical harm" in the Indiana Strict Products Liability Act.
I further dissent to the conclusion that Hall Farms' claim is based on damage to the product itself. The majority opinion observes that strict liability in tort is inapplicable to claims of damage to the product itself, citing Sanco, Inc. v. Ford Motor Co. (ith Cir.1985), 771 F.2d 1081, 1086 , and Moorman Mfg. Co. v. National Tank Co. (1982), 91 IlL.2d 69, 61 IIl. Dec. 746, 758, 485 N.E.2d 443, 450 . However, unlike the manufactured products in these cases, the damages claimed by Hall Farms is the harm to an agricultural crop produced not only from the initial seed product but also from the growing process and involving the care and nutrients provided in the Hall Farms greenhouse and fields. Indiana Code § 83-1-1.5-8 imposes strict liability in tort upon persons who sell certain defective products. The defendants sold seeds, not watermelons; the product was the initial watermelon seed, not the ensuing watermelon crop. Because it is the damage to the crop which is sought, recovery of such damage should not be precluded on grounds that it is damage to the product itself.
In all other respects, I concur with the majority.