applying strict liability when only damages to the defective product “would clearly emasculate the applicable provisions of the Uniform Commercial Code as to warranty and warranty liability which were designed to apply where the product is defective but where no damage results from the defect, either to persons or other property”
How later courts described this case
- applying strict liability when only damages to the defective product “would clearly emasculate the applicable provisions of the Uniform Commercial Code as to warranty and warranty liability which were designed to apply where the product is defective but where no damage results from the defect, either to persons or other property”
- representations of load capacity in manufacturer’s pamphlet constituted express warranty binding both manufacturer and lessor of scaffolding
- interpreting § 2-313 of the U.C.C.
- sale of scaffolding; express warranty created even if buyer did not rely on statements in seller’s brochure
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by National Crane Corp. v. Ohio Steel Tube Co., 213 Neb. 782 (1983)
190 Neb. 546, 209 N.W.2d 643, 654-655 (1973)(same), disapproved on other grounds, Nat’l Crane Corp. v. Ohio Steel Tube Co., 213 Neb. 782, 332 N.W.2d 39 (1983).
The opinion
Clinton, J.,
concurring.
I concur in the opinion of White, C. J., but feel that the rationale for declining at this time to extend the doctrine of strict liability in tort beyond allowing recovery for personal injury should be elaborated. Three related reasons, I believe, indicate the wisdom of not extending the doctrine to property damage cases.
First: Such extension, I believe, comes into conflict *571 with the provisions of the Uniform Commercial Code. Where the doctrine of strict liability in tort is applicable remedies under the U.C.C. are superfluous and the U.C.C. provisions pertaining to exclusion and modification of warranties, limitation on damages, and modification and limitation of remedies are eliminated, that is, repealed by judicial fiat. §§ 2-316, 2-718, 2-719, U.C.C. On this general problem see Titus, Restatement (Second) of Torts, Section 402A and the Uniform Commercial Code, 22 Stan. L. Rev. 713 .
Property damage is one of the types of damage concerning which the U.C.C. makes rules. §§ 2-715(2) (b), 2-719(3), U.C.C. Personal injuries resulting from breach of warranty are also the subject matter of regulation by the U.C.C. How then do we make a determination that damages of the one type should be compensable under the doctrine of strict liability, and damage of the other type is not compensable under that doctrine but only under the U.C.C.? Two reasons exist: (1) In personal injury cases strict liability has a foundation antecedent to and independent of the sales provisions of the U.C.C. This justifies such different treatment. The foundation rests upon the special food warranty cases. Asher v. Coca Cola Bottling Co., 172 Neb. 855 , 112 N. W. 2d 252 (1961). See Titus, Maj. Op Cit., 772. In Kohler v. Ford Motor Co., 187 Neb. 428 , 191 N. W. 2d 601 , we indicated that we relied on Asher and felt that although that case was couched in warranty terms, what we were really doing in Kohler was only changing the label. The U.C.C. provides: “Unless displaced by the particular provisions of this act, the principles of law and equity . . . shall supplement its provisions.” § 1-103, U.C.C. It may be argued on these grounds that the U.C.C. did not displace existing remedies so far as personal injury is concerned. This is the effect of our holding in Kohler. See Titus, Maj. Op Cit., 758, et seq.
(2) The U.C.C. itself contains provisions which justify such different treatment. Section 2-719(3), U.C.C., *572 provides: “Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.”
Property damage is included in the term consequential damage as defined by the U.C.C. § 2-715(2), U.C.C. It does not appear to me that the U.C.C. provisions justify the distinction that some of the cases make between property damage and consequential commercial damage and which allow recovery under the doctrine of strict liability for the former but deny it for the latter. See Seely v. White Motor Co., 63 Cal. 2d 9 , 45 Cal. Rptr. 17 , 403 P. 2d 145 . A reading of sections 2-715(2) and 2-719(3), U.C.C., together leads me to believe that the U.C.C. clearly authorizes warranty limitations so far as property damage is concerned.
Second: A primary justification — although often unstated (as it was in Kohler) — for the doctrine of strict liability is that of spreading the cost of risk loss from the injured to the manufacturer who in turn passes that cost on either through insurance or in higher charges for his products. This was the rationale in Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57 , 27 Cal. Rptr. 697 , 377 P. 2d 897 , on which we placed primary reliance in Kohler. See, also, Franklin, When Worlds Collide: Liability Theories and Disclaimers in Defective-Product Cases, 18 Stan. L. Rev. 974 , 1009. Damages of the type here involved are ordinarily already covered by insurance, the contractor’s collapse or builder’s risk policy, or if the contractor is his own insurer he is already spreading the cost of the risk among all his customers. As I see it, there is no social utility in transferring the risk of loss from one insurer to another, in this case probably to the products liability carriers of the scaffold manufacturer and the lessor of the scaffolding. Transferring risk between insurers simply gives rise to additional subrogation claims between insurers and the social utility of this I fail to *573 see. No doubt a reasonable argument can be made for the fact that it probably increases cost because now both insurers must consider the same risks and consequently be compensated in higher premiums.
The great value which we as a society place upon life and health justifies the strict liability doctrine so far as personal injury is concerned. First party personal injury insurance does not remotely match the damages which are recoverable from a tortfeasor, while ordinarily insurance of the type we have earlier mentioned completely covers the loss and spreads the risks.
Third: I agree with Smith, J., that important information relating to policy in this area is inadequate. This, I believe is an added reason for not expanding the legal liability of the manufacturer beyond our holding in Kohler.