Ogle v. Caterpillar Tractor Co.

• Citation: 716 P.2d 334
• Decision Date: 19 March 1986
• Docket Number: No. 85-154,85-154
• Parties: 42 UCC Rep.Serv. 1668, Prod.Liab.Rep. (CCH) P 10,923 Timothy OGLE, Appellant (Plaintiff), v. CATERPILLAR TRACTOR CO., and Wyoming Machinery Co., Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 334

716 P.2d 334

42 UCC Rep.Serv. 1668, Prod.Liab.Rep. (CCH) P 10,923

Timothy OGLE, Appellant (Plaintiff), v. CATERPILLAR TRACTOR CO., and Wyoming Machinery Co., Appellees (Defendants).

No. 85-154.

Supreme Court of Wyoming.

March 19, 1986.

William D. Norman, Casper, for appellant.

Paul Kapp (argued) of Godfrey & Sundahl, Cheyenne, for Caterpillar Tractor Co.

Patrick J. Murphy (argued), and Stuart R. Day of Williams, Porter, Day & Neville, Casper, for Wyoming Machinery Co.

Before THOMAS, C.J., BROWN, CARDINE and URBIGKIT, JJ., and GUTHRIE, J. Ret.

CARDINE, Justice.

In this products liability action, the district court granted summary judgment in favor of appellee Caterpillar Tractor Company, the manufacturer, and appellee Wyoming Machinery Company, the dealer. The court held that the applicable statutes of limitation barred the claims of appellant, Timothy Ogle, for negligence and breach of warranty, and that the suit could not be sustained because the caterpillar scraper which allegedly caused the accident had been altered after it left the hands of the manufacturer and dealer.

The questions presented for our determination are:

(a) Whether appellant's causes of action in negligence and breach of warranty were filed within the limitation periods provided in §§ 1-3-105(a)(iv)(C) and 34-21-299.5, W.S.1977, respectively;

(b) Whether appellant's strict liability claim is recognized in Wyoming; and, if so, whether it was properly and timely filed; and

(c) Whether appellees' material alteration argument justified summary judgment against appellant on any of his claims for relief.

We affirm in part and reverse in part.

On January 9, 1980, appellant was injured when he fell from the hood of a caterpillar scraper he was operating at a uranium mine in Carbon County. Appellant's employer, Utah International, had purchased the scraper in 1976 from appellee Wyoming Machinery Company. It had been manufactured by appellee Caterpillar Tractor Company.

On January 9, 1984, exactly four years after his accident, appellant brought suit in the district court against Wyoming Machinery and Caterpillar Tractor stating three claims for relief. The first claim sounded in negligence and the second in breach of warranty. The third, although it did not use the words "strict liability," was intended by appellant to allege strict liability in tort. In it, appellant states that appellees put the scraper on the market representing that "it could be safely operated while doing the job for which it was intended," even though it was "unsafe for its intended use." He also alleged that he "was injured as a direct result of the defects herein alleged."

In their answers, appellees raised the tort and warranty statutes of limitation as affirmative defenses. Sections 1-3-105 and 34-21-299.5, W.S.1977. After discovery had begun, they moved for summary In support of their summary judgment motions, appellees filed affidavits, exhibits and depositions which established the date that the scraper was sold to Utah International, that appellant knew the scraper was dangerous before the accident occurred, and that some of its safety features--including a handhold, metal step, and non-slip tape--had been removed or worn down. Appellant did not file affidavits or contradicting exhibits but did submit a brief to the district court on the day the motion was argued.

judgment on the same grounds. Caterpillar Tractor also added a third ground for summary judgment, arguing that the accident was caused by material alterations to the scraper made by Utah International after purchase.

The court granted summary judgment holding that the statute of limitations on the warranty count ( § 34-21-299.5, W.S.1977) had expired, that appellant had failed to produce affidavits showing that the negligence statute of limitations had not expired, and that the scraper had been altered after it was sold to appellant's employer. The court's order does not indicate why the court dismissed appellant's strict liability claim. The court might have dismissed the claim based on the statute of limitations or because of alterations in the scraper. It is also possible that because strict liability in tort has not yet clearly been adopted in Wyoming, the court read appellant's third claim as simply a redundant count alleging breach of warranty.

We will discuss the propriety of summary judgment from the perspective of each of the three causes of action: negligence, warranty, and strict liability in tort. We will then analyze the manufacturer's material alteration argument to determine whether it supports the district court's decision. ¹

NEGLIGENCE

An injured person's negligence claim is forever barred if he does not bring an action within four years after the cause of action accrues. Section 1-3-105(a)(iv)(C), W.S.1977. A cause of action in negligence accrues when "the injured party knows or reasonably ought to know that some damage has resulted from the wrongful act." Anderson v. Bauer, Wyo., 681 P.2d 1316, 1321 (1984). Appellant was injured on January 9, 1980 and knew of his injury immediately. He was required to file his complaint within four years of that date--i.e., on or before January 9, 1984. He filed his complaint on that day, and it was timely.

The appellees did not produce affidavits or other materials showing that appellant suffered injuries more than four years before filing his complaint. Their claim that the statute had run was based upon an apparent misreading of our clear rule of law established in Anderson v. Bauer, supra. Thus, appellees argued that a negligence action can accrue before the damage element has occurred. They were wrong as a matter of law, and the district court was required to deny the motion even though appellant failed to supply any affidavits or exhibits of his own. A motion for summary judgment should not be granted simply because the nonmoving party fails to resist it. Metzger v. Kalke, Wyo., 709 P.2d 414 (1985). "A movant must first submit evidence which establishes a prima facie case * * * and show that it is 'entitled to a judgment as a matter of law.' " (Citations omitted.) Shanor v. A-PAC, Ltd., Wyo., 711 P.2d 420 (1986), citing Rule 56(c), W.R.C.P. We reverse the court's summary judgment as to the negligence cause of action and remand for further proceedings on that claim.

BREACH OF WARRANTY

Wyoming has adopted the Uniform Commercial Code's statute of limitations for breach of contract in sales cases. ² Section 34-21-299.5, W.S.1977 ( § 2-725, Uniform Commercial Code (U.C.C.)) states in pertinent part:

"(a) An action for breach of any contract for sale must be commenced within four (4) years after the cause of action has accrued.

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"(b) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered."

On its face, this statute appears to bar appellant's warranty claim because appellant filed his complaint in 1984, more than four years after the scraper was tendered to his employer in 1976. ³ Indeed, most jurisdictions apply the statute literally and hold that a breach of warranty action for personal injuries is barred when brought more than four years after tender. ⁴

A substantial minority of state courts divide warranty claims into those involving commercial damages and those involving personal injury. They apply a tort limitations period, accruing at the time the plaintiff discovers his injury, to the warranty claims for personal injury. It is important to note, however, that sixteen of these courts base their holdings on unique statutory schemes which differ from U.C.C. § 2-725 or contain an altered version of the statute itself. Williams v. West Penn Power Company, 502 Pa. 557, 467 A.2d 811, 817, n. 18 (1983). For example, the Alabama legislature has adopted its own version of U.C.C. § 2-725 which provides that if consumer goods are involved, a cause of action for breach of warranty accrues upon the date of personal injury rather than the date of tender. Simmons v. Clemco Industries, Ala., 368 So.2d 509, 512 (1979); see also, e.g., Ouellette v. Sturm, Ruger & Company, Inc., Me., 466 A.2d 478 (1983); Franzen v. Deere and Company, Iowa, 334 N.W.2d 730 (1983). These legislatures have apparently modified U.C.C. § 2-725 because otherwise the clear language of the statute of limitations is a bar to all breach of warranty actions, including those for personal injury, if Eliminating states which have adopted special statutory schemes, just two courts remain which have construed the official version of U.C.C. § 2-725 to provide a different statute of limitation for tort claims as opposed to commercial damage cases. See Annot., 20 A.L.R.4th 915, 929-930, supra; Parish v. B.F. Goodrich Company, 395 Mich. 271, 235 N.W.2d 570 (1975). We would have to follow this small minority of courts in order to hold that the Wyoming version of U.C.C. § 2-725 ( § 34-21-299.5, W.S.1977) does not bar appellant's claim.

brought more than four years after tender of delivery of the product.

The Wyoming legislature has adopted the official version of U.C.C. § 2-725 and has not amended the basic tort statute of limitations, § 1-3-105(a)(iv)(C), W.S.1977, to expressly supersede § 34-21-299.5 (U.C.C. § 2-725) in breach of warranty cases. ⁵

We agree with the construction of § 34-21-299.5, W.S.1977 (U.C.C. § 2-725, official version) that has been adopted by the majority of states and hold that a plaintiff bringing a breach of warranty action for personal injury must file his suit within four years of the date on which the warranted goods are tendered. This holding rests on more than just the plain...