Redfield v. Mead, Johnson & Co.

Citation512 P.2d 776,266 Or. 273
Parties, 13 UCC Rep.Serv. 10 Icfean REDFIELD, Appellant, v. MEAD, JOHNSON & COMPANY, a Delaware corporation, Respondent.
Decision Date19 July 1973
CourtSupreme Court of Oregon

William B. Murray, Portland, filed a brief for appellant.

Paul R. Duden, Portland, argued the cause for respondent. With him on the brief were Tooze, Kerr & Peterson, Portland.


McALLISTER, Justice.

Plaintiff brought this action under the Uniform Commercial Code against the manufacturer of a contraceptive drug to recover damages for personal injuries resulting from the alleged breach of an implied warranty that the drug was fit for the purpose for which it was sold to her. The trial court sustained a demurrer to plaintiff's second amended complaint on the ground that the action was barred by the two-year tort statute of limitations. Plaintiff appeals from the resulting judgment contending that the trial court applied the wrong statute of limitations. We agree with plaintiff and reverse. We hold that the four-year statute of limitations specifically prescribed by the Uniform Commercial Code is applicable to this action.

This action was commenced on August 26, 1971. The second amended complaint alleged that between May, 1966, and the end of January, 1968, defendant manufactured and sold a contraceptive drug, and that plaintiff purchased and used that drug during the same period. Plaintiff alleged that, as a result of her use of the drug, she suffered personal injuries in February, 1968. The complaint further alleged that defendant impliedly warranted that the drug was safe for use as a contraceptive, and that plaintiff relied on the defendant's skill and judgment, and upon its implied warranty of fitness, but that the drug was not safe and was not reasonably fit for plaintiff's use as a contraceptive, and that defendant failed to furnish proper directions or warnings about the dangers of using the drug.

Actions for breach of implied warranties are governed by our Commercial Code. See ORS 72.3140, 72.3150, 72.7140. The Code specifically provides as one of the buyer's remedies for a breach of a contract of sale the recovery of damages for personal injuries caused by a breach of warranty. ORS 72.7150 provides as follows:

'72.7150 Buyer's incidental and consequential damages. * * *

'(2) Consequential damages resulting from the seller's breach include:

* * *

* * *

'(b) Injury to person or property proximately resulting from any breach of warranty.'

See, also, ORS 72.3180.

The Uniform Commercial Code's special four-year statute of limitations is contained in ORS 72.7250, which reads in pertinent part as follows:

'(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. * * *

'(2) 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.'

Our general statute on limitations of actions is ORS 12.010:

'Actions at law shall only be commenced within the periods prescribed in this chapter, after the cause of action shall have accrued, Except where a different limitation is prescribed by statute. * * *' (Emphasis added.)

When the above statutory provisions are read together, the legislative intent is clear. The legislature has provided a cause of action for personal injuries for breach of warranty, and has adopted a limitation period made specifically applicable to such actions. The action for breach of warranty is clearly one for which 'a different limitation is prescribed by statute' (ORS 12.010) and thus is not governed by the provisions of Chapter 12.

In spite of the clarity of these provisions, defendant argues that the two-year tort statute should apply because this court has characterized product liability actions as sounding in tort. This argument misses the mark. The seller's implied warranties have their genesis in the contract of sale. Where the legislature has provided for a right of action for breach of the warranties implied in such a contract, it does not matter whether that action would be characterized at common law as lying in tort or in contract. It is a statutory action for which a specific limitation period has been provided. We do not need to look outside the provisions of the Code for more precise definitions.

In some of our cases applying the principles of strict liability in tort, the pleadings were framed in traditional warranty terms. In Wights v. Staff Jennings, 241 Or. 301, 405 P.2d 624 (1965) the action was filed before the effective date of the Uniform Commercial Code. We held there that a non-privity purchaser may have a cause of action, based entirely upon tort principles, for injuries caused by a defective product. It was pointed out that the tort liability which was recognized in that case 'is distinct from that imposed under the Uniform Sales Act * * * or the Uniform Commercial Code * * *.' 241 Or. at 310, note 14, 405 P.2d 624 at 629. Because of the evolving nature of the tort of strict liability, we have not always held plaintiffs to the strict terms of their pleadings. This has been recently discussed in Markle v. Mulholland's, Inc., Or., 509 P.2d 529, 531 (1973) and McGrath v. White Motor Corp., 258 Or. 583, 593--594, 484 P.2d 838 (1971). Those cases indicate a temporary leniency toward plaintiffs who had drawn their pleadings in traditional warranty terms but whose cases had been tried on the theory of strict tort liability. We did not indicate, and did not intend, that plaintiffs who wished to base their actions on the Uniform Commercial Code would be denied that right.

It has also been argued that application of the Code's four-year limitation period would be undesirable in consumers' actions for personal injury because the buyer's cause of action under ORS 72.7250 will ordinarily accrue when the seller tenders delivery of the goods. It may be that the Code's limitation statute could, in some cases, result in barring a plaintiff's cause of action before any injury has occurred. This was the result in Mendel v. Pittsburgh Plate Glass Co., 25 N.Y.2d 340, 305 N.Y.S.2d 490, 253 N.E.2d 207 (1969), a case which has been extensively discussed and criticized. 1 The real significance of the Mendel case, however, is that it apparently forecloses recovery on a theory of strict liability in tort, leaving injured purchasers and users of defective products to their remedies for negligence and breach of warranty. 2 This court, however, has very recently reaffirmed its recognition of the theory of strict liability in tort as formulated in Restatement of Torts 2d, § 402A. Markle v. Mulholland's, Inc., supra. With this theory available, a plaintiff who is injured more than four years after the sale of the defective product, although barred from recovery for breach of warranty in an action pursuant to the Code, will nevertheless have two years to bring an action based on strict liability in tort provided he can show that the defective product was unreasonably dangerous as required under § 402A.

It is argued that the legislature could not have intended plaintiffs in product liability cases to have a choice between two different limitation periods, and that we should apply the tort statute of limitations as best fitted to the essential nature of an action for personal injuries for breach of warranty. We have not, however, found any evidence of the legislature's intention to limit plaintiffs to a single theory of recovery.

There are cases in which this court has denied plaintiffs the right to obtain the benefit of a favorable statute of limitations by restricting them to a single theory of recovery. In Dowell v. Mossberg, 226 Or. 173, 355 P.2d 624, 359 P.2d 541 (1961), a medical malpractice case, we held that the real basis of the action is the physician's failure to use due care, and that the 'unspoken contractual relationship' between a physician and patient will not support an action for breach of contract. We left open the question whether a plaintiff could, within the contract limitation period, bring an action based on an express contract to effect a cure or to accomplish a particular result. 226 Or. at 181, 355 P.2d 624. We extended Dowell to another malpractice setting in Bales for Food v. Poole, 246 Or. 253, 424 P.2d 892 (1967), an action against an engineer who had contracted to perform professional services as an architect. The plaintiff alleged that the defendant had failed to use due care and skill in carrying out his contractual duties. We said that it was the failure to exercise care, and not the breach of the contract, which was the substance of the action. 246 Or. at 256, 424 P.2d 892. See, also, Goodman v. Fernald, 154 Or. 654, 61 P.2d 1253 (1936), an action for breach of a covenant to repair leased premises, in which the court said the 'gravamen of the complaint' was in tort, and that the action was barred by the tort statute of limitation. 154 Or. at 662, 61 P.2d 1253.

Another line of cases, however, permits plaintiffs who have available two theories of recovery for a single wrong to choose that which results in the more beneficial limitation period. In Martin v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790 (1959) we applied the trespass limitation statute although an action for nuisance, governed by a shorter limitation period, would also have been available to the plaintiff. Wells v. Oldsmobile Co., 147 Or. 687, 35 P.2d 232 (1934), was an action for breach of express warranty in the sale of a new car. The court held that the...

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