no claim of recovery under a theory of strict liability where complaint failed to allege manner in which product was unreasonably dangerous
How later courts described this case
- no claim of recovery under a theory of strict liability where complaint failed to allege manner in which product was unreasonably dangerous
Written by the judges who cited it.
The opinion
DENECKE, J.,
specially concurring.
Confusión was created in this field of law because commercial contract concepts covering ■ claims of economic loss were shaped to impose liability for *482 personal injuries. Other contract concepts had to he ignored or overcome to impose liability. Eventually, the tort of strict liability was recognized as the basis for liability for personal injuries and the contract garb was discarded. See concurring opinion in Redfield v. Mead, Johnson Company, 266 Or 273, 285 , 512 P2d 776 (1973). This court and others are now striving logically to fill in the interstices of this new creation of strict liability.
In the present case the plaintiff is now attempting to reverse the field and use the new tort of strict liability to impose liability with facts which have been governed by commercial contract principles. For example, see Kassab v. Central Soya, 432 Pa 217, 246 A2d 848 (1968), in which plaintiff contended that defective feed lowered the value of his cows. I am of the opinion that the remedy for breach of warranty that a buyer has under the Uniform Commercial Code (UCC) is adequate and should be a buyer’s sole remedy. It is unnecessary and unwise to bring the confusion of the tort of strict liability to commercial transactions.
I categorize this as a case that should be governed solely by the UCC because of two characteristics: (1) the loss claimed is purely economic, loss of profits; and (2) the loss was not an “accidental” one such as the loss in Wulff v. Sprouse-Reitz Co., Inc., 262 Or 293, 498 P2d 766 (1972).
The UCC requirement of notice of breach of warranty, OES 72.6070, or the possibility of the seller putting in a disclaimer, ORS 72.3160, are not unfair or foreign under these circumstances.
In my opinion there is a need for certainty in this field that outweighs my inability to state more *483 logically why recovery for personal injuries or for the kind of property damages involved in Wulff v. Sprouse-Reitz Co., Inc., supra ( 262 Or 293 ), can be based npon the tort of strict liability and the economic loss claimed by plaintiff in this case can only be based upon the remedies provided for in the UCC.