Adams v. American Cyanamid Co.
| Decision Date | 10 November 1992 |
| Docket Number | No. A-91-944,A-91-944 |
| Citation | 1 Neb.App. 337,498 N.W.2d 577 |
| Parties | , 21 UCC Rep.Serv.2d 962 William Timothy ADAMS and Carol Adams, Appellees, v. AMERICAN CYANAMID COMPANY, a Corporation, Appellant. |
| Court | Nebraska Court of Appeals |
Frederick S. Cassman and Aaron D. Weiner of Abrahams, Kaslow & Cassman, Omaha, and J.L. Zimmerman of Atkins John F. Simmons of Simmons, Olsen, Ediger & Selzer, P.C., Scottsbluff, for appellees.
Ferguson, Zimmerman & Carney, P.C., Scottsbluff, for appellant.
This appeal arises from an action based on theories of strict liability and breach of warranty of merchantability under the Uniform Commercial Code. William Timothy "Tim" Adams and Carol Adams brought suit against American Cyanamid Company, and Panhandle Cooperative Association for damages sustained to a crop of edible beans which was lost after a herbicide manufactured by American Cyanamid was applied to the Adamses' fields. The jury awarded a judgment for the Adamses in the amount of $193,500 against American Cyanamid. American Cyanamid appeals. We affirm in part, and in part reverse and remand for a new trial.
In 1989, Tim Adams planned to grow beans on 860 acres of center-pivot irrigated fields. He sought the services of Glenn Johnson of Servi-Tech crop consultants to inspect his fields, to make recommendations as to fertilizers, herbicides, and seed, and to observe the crop through the growing season. Johnson recommended a combination of the herbicides Eptam and Prowl. Prowl herbicide is manufactured by the defendant, American Cyanamid. Adams purchased these herbicides from Panhandle Co-op, whose employee applied the herbicides at the application rate specified by Johnson. In early June, the fields were planted with great northern and pinto beans.
At first, the bean crop grew well, but after the first of July, Adams noticed that the plants in field No. 8 began to look weakened, and plants in the other fields followed suit. The beans flourished in a strip of field No. 1 where no herbicide had been applied due to a parked center pivot. The beans also flourished in a 10-acre area of field No. 5 where no herbicide was applied because the sod had recently been brought under cultivation.
Prowl, the trade name for the herbicide used, is a dinitroaniline herbicide, which can destroy plants by causing a swollen hypocotyl, i.e., the plant's main root stem, and a reduction of the secondary root system.
Prowl was applied in combination with Eptam, a thiocarbamate herbicide. A thiocarbamate herbicide produces a type of plant injury different from that produced by a dinitroaniline herbicide. A thiocarbamate herbicide causes early leaf effect and lasts in the soil for a few weeks. The Adamses' expert was able to exclude the possibility that Eptam had caused the plant injury.
The jury entered a general verdict for the Adamses for $193,500, the amount of the lost crop. The jury entered special verdicts finding that the defendant was strictly liable in tort and had breached the warranty of merchantability. The defendant moved for judgment notwithstanding the verdict and for a new trial, which motions were overruled.
The defendant's assignments of error may be reduced to the following claims: (1) The court erred in failing to sustain the defendant's motions for a directed verdict and motion for judgment notwithstanding the verdict because there was insufficient evidence for the jury to find that the defendant was strictly liable for the damage to the plaintiffs' crops; (2) the court erred in failing to sustain the defendant's motions for a directed verdict and motion for judgment notwithstanding the verdict because there was insufficient evidence for the jury to find that the herbicide sold to the plaintiffs was not merchantable; (3) the court erred in instructing the jury to determine whether the disclaimer was conspicuous, contrary to Neb.U.C.C. § 1-201(10) (Cum.Supp.1990); (4) the court erred in failing to
sustain the defendant's motions for a directed verdict and motion for judgment notwithstanding the verdict because the herbicide label contained a conspicuous disclaimer of the implied warranty of merchantability as a matter of law; (5) the court erred in failing to sustain the defendant's motions for a directed verdict and motion for judgment notwithstanding the verdict because the plaintiffs' knowledge of the disclaimer on the herbicide label, through their agent, excluded the implied warranty of merchantability as a matter of law; and (6) the court erred in failing to rule on the unconscionability of the limitation of damages clause on the herbicide label, pursuant to Neb.U.C.C. § 2-302 (Reissue [1 Neb.App. 342] 1980), thereby failing to find and instruct the jury that the limitation of damages clause in the herbicide label excluded the plaintiffs' recovery of consequential damages from breach of warranty.
Generally, the defendant claims that the trial court erred by failing to sustain its motions for directed verdict and for judgment notwithstanding the verdict because there was insufficient evidence to support the jury's verdict finding the defendant liable on theories of strict liability and breach of warranty of merchantability. These assignments will be considered together because they must be reviewed under the same standards.
A trial court should direct a verdict as a matter of law only when the facts are conceded, undisputed, or such that reasonable minds can draw but one conclusion therefrom. The party against whom the motion is made is entitled to have every controverted fact resolved in his or her favor and to have the benefit of every inference which can reasonably be drawn from the evidence. If there is any evidence which will sustain a finding for the party against whom the motion is made, the case may not be decided as a matter of law. Baker v. St. Paul Fire & Marine Ins. Co., 240 Neb. 14, 480 N.W.2d 192 (1992).
On a motion for judgment notwithstanding the verdict, the moving party is deemed to have admitted as true all the material and relevant evidence admitted which is favorable to the party against whom the motion is directed, and, further, the party against whom the motion is directed is entitled to the benefit of all proper inferences which can be deduced therefrom. Pugh v. Great Plains Ins. Co., 239 Neb. 171, 474 N.W.2d 677 (1991).
The defendant claims the trial court erred in overruling its motions for a directed verdict and for judgment notwithstanding the verdict because there was insufficient evidence for a jury to find the defendant liable on a theory of strict liability. The Adamses' suit was based on Restatement (Second) of Torts § 402A at 347-48 (1965), which in relevant part provides: "(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property." The elements in a prima facie case in strict liability depend on the type of defect that is asserted. The Supreme Court has said:
In products liability litigation the notion of a defective product embraces two separate concepts. The first, commonly labeled a manufacturing defect, is one in which the product differs from the specifications and plan of the manufacturer....
The second concept of a defective product is one in which the product meets the specifications of the manufacturer but the product nonetheless poses an unreasonable risk of danger. This condition is generally characterized as a design defect....
While a particular design may pose such an unreasonable risk of danger, liability for this danger differs, depending upon the theory of recovery presented by the plaintiff....
In a strict liability cause of action it is generally proposed that the focus of the court's inquiry should be on the product itself and not the manufacturer. Thus, a finding that the product poses an unreasonable risk of danger is sufficient. Nerud v. Haybuster Mfg., 215 Neb. 604, 610-11, 340 N.W.2d 369, 373-74 (1983).
The Adamses did not claim that American Cyanamid's product was subject to a manufacturing defect, or stated differently, they concede that Prowl did conform to the chemical description on the label. Therefore, the question is whether the evidence is sufficient to support the jury's finding on strict liability for a design defect. According to Rahmig v. Mosley Machinery Co., 226 Neb. 423, 441, 412 N.W.2d 56, 69 (1987), to recover on a claim of strict liability in tort for a defectively designed product, a plaintiff must prove the following by a preponderance of the evidence:
(1) The defendant placed the product on the market for use and knew, or in the exercise of reasonable care should have known, that the product would be used without inspection for defects; (2) the product was in a defective condition when it was placed on the market and left the defendant's possession; (3) the defect was the proximate or a proximately contributing cause of plaintiff's injury sustained while the product was being used in the way and for the general purpose for which it was designed and intended; (4) the defect, if existent, rendered the product unreasonably dangerous and unsafe for its intended use ... and (6) plaintiff's damages were a direct and proximate result of the alleged defect.
In the instant case, there is no question that it was foreseeable to American Cyanamid that its product would be used by a farmer without inspection. Moreover, if the product was defective, it was defective when it was placed on the market and left American Cyanamid's possession. Nevertheless, no evidence was adduced to show that Prowl was unreasonably dangerous. The...
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