Romano v. Westinghouse Elec. Co.

• Decision Date: 03 April 1975
• Docket Number: No. 73-179-A,73-179-A
• Citation: 114 R.I. 451,336 A.2d 555
• Parties: , 17 UCC Rep.Serv. 128 Albert ROMANO et ux. v. WESTINGHOUSE ELECTRIC CO. et al. ppeal.
• Court: Rhode Island Supreme Court

Page 555

336 A.2d 555

114 R.I. 451, 17 UCC Rep.Serv. 128

Albert ROMANO et ux. v. WESTINGHOUSE ELECTRIC CO. et al.

No. 73-179-Appeal.

Supreme Court of Rhode Island.

April 3, 1975.

[114 R.I. 466] McOsker, Isserlis & Davignon, David J. McOsker, Providence, for plaintiffs.

Keenan, Rice, Dolan, Reardon & Kiernan, Leonard A. Kiernan, Jr., Dennis S. Baluch, Providence, for defendant Westinghouse Electric Co.

Budlong, Clough, Lewis & Ryan, Ralph T. Lewis, Jr., Warwick, for defendant Greenwood Electrical Supply Co., Inc.

OPINION

DORIS, Justice.

This is a civil action for damages to property brought in the Superior Court by Albert Romano and Marie Romano, husband and wife, against Westinghouse Electric Corporation (hereinafter called Westinghouse), a large national corporation engaged in the manufacturer of electrical products, and against Greenwood Electric Supply Co., Inc. (hereinafter called Greenwood), a Rhode Island corporation engaged in the sale of electrical supplies and equipment. The complaint alleges that in February 1964, Albert Romano, one of the plaintiffs, purchased from the defendant Greenwood a color television set designed and manufactured by the defendant Westinghouse. The complaint further alleges that on March 3 1970, the television set exploded, setting to the plaintiffs' house and causing extensive property damage. Four counts of liability are set forth: breach of warranty, negligence, res ipsa loquitur, and strict liability in tort. Pursuant to Super.R.Civ.P. 13(g), the defendant Greenwood filed a cross-claim against the defendant Westinghouse which stated in effect that if the plaintiffs were successful in any of their counts against Greenwood, Greewood as the retailer should in turn recover against Westinghouse the manufacturer.

The defendant Westinghouse moved to dismiss both plaintiffs' complaint and defendant Greenwood's cross-claim on the ground that the statute of limitations had run as to all four counts set forth in the complaint. The Superior Court justice joined Greenwood in this motion to dimiss, which he then granted, both as to plaintiffs' complaint and Greenwood's cross-claim. From this judgment plaintiffs and defendant Greenwood have each made a timely appeal.

The defendants argue that G.L.1956 (1969 Reenactment) § 6A-2-725 ¹ in an insuperable bar to plaintiffs' claim in warranty. As plaintiffs have neither briefed nor argued this count, we will treat it as waived under Rule 16(a) of the Supreme Court Rules.

All three parties either assume or expressly state that § 9-1-13 is the section properly applicable to all counts of the instant action except the breach of warranty count. This section reads as follows:

'9-1-13. Limitation of actions generally.-Except as otherwise specifically provided, all civil actions shall be commenced within six (6) years next after the cause of action shall accrue, and not after.'

The assumption that § 9-1-13 is the proper statute of limitations for the noncontractual counts of a suit for damages resulting from a defective product is in accord with our decisions in Kelly v. Ford Motor Co., 110 R.I. 83, 290 A.2d 607 (1972), and International Union of Operating Eng'rs, Local 57 v. Chrysler Motors Corp., 106 R.I. 248, 258 A.2d 271 (1969). There we held that § 6A-2-725 was applicable only to those situations involving a buyer-seller relationship and that it therefore did not govern a warranty action against a manufacturer.

The only question properly presented by this appeal is at what point a cause of action accrues under § 9-1-13 in a products liability case. That the answer to this question is not clear on the face of the statute is indicated by the differing results reached by courts of other jurisdictions when construing very similar statutes. Nor is this problem better left to legislative determination, despite the underlying policy issues. In Wilkinson v. Harrington, 104 R.I. 224 at 229-30, 243 A.2d 745 at 749 (1968), an action for medical malpractice in which we were called upon to determine when a cause of action accrued under § 9-1-14, we said:

'The realities of the legislative process persuade us that courts should not defer questions to the enacting branch of state government merely because the questions may in some form or another relate to public policy. * * * When presented with issues inextricably entwined with abstruse legalistic concepts and complex principles of law affecting the rights and duties of the public, there can be no doubt that the courts are the most suitable and logical forums for their determination.'

The defendants first address themselves to plaintiffs' count in strict liability. Noting that both strict liability and warranty may rise out of a sales situation and both involve imposition of liability without proof of negligence, defendants argue that strict liability sounds in warranty, and that while § 6A-2-725 is not actually applicable, the accrual of an action governed by § 9-1-13 should be interpreted in conformance with the legislative intent expressed in § 6A-2-725(2).

We are not impressed with this discovery of legislative intent. The comment accompanying § 6A-2-725 indicates that the section was actually intended to provide a uniform period of limitations for 'sales contracts,' thereby eliminating the jurisdictional variations which have troubled companies doing business on a nationwide scale, and not to dictate a period of limitations to tort actions carried on against both manufacturer and retailer. In furtherance of this intent, various jurisdictions have held that § 2-725 of the Uniform Commercial Code explicitly relates to actions 'for breach of any contract for sale' and does not apply to tort actions between consumers and suppliers who may never have been in a commercial relationship. Matlack, Inc. v. Butler Mfg. Co., 253 F.Supp. 972 at 976 (E.D.Pa.1966); Abate v. Barkers of Wallingford, Inc., 27 Conn.Supp. 46 at 51-52, 229 A.2d 366 at 369 (1967); Rosenau v. City of New Brunswick, 51 N.J. 130 at 143, 238 A.2d 169 at 175-76 (1968); Kirkland v. General Motors Corp., 521 P.2d 1353 at 1361-62 (1974 Okl.); Rapson, Products Liability Under Parallel Doctrines: Contrasts Between the Uniform Commercial Code and Strict Liability in Tort, 19 Rutgers L.Rev. 692 at 706 (1965). Our decision in Kelly v. Ford Motor Co., supra, follows this line of authority by confining the action of § 6A-2-725 to situations involving an actual buyer-seller relationship. We do not, therefore, feel constrained by a legislative directive to construe § 9-1-13 in accord with the accrual time set out in § 6A-2-725(2).

Regarding defendants' argument that strict liability should sound in warranty regardless of the impact of § 6A-2-725, in Ritter v. Narragansett Elec. Co., 109 R.I. 176, 283 A.2d 255 (1971), this court adopted the doctrine of strict liability in tort as set forth in Restatement (Second) Torts § 402A (1965). In so doing we quoted with approval from Miller v. Preitz, 422 Pa. 383 at 421, 221 A.2d 320 at 339 (1966), where that court said:

'Thus, whether the defendant should be strictly liable for injuries caused by a defective product is a question which cannot be determined by resort to doctrines of contract law, such as privity of contract, which developed in response to considerations for the most part not here relevant. The matter is solely one of policy and should be approached without the encumbrance that reference to contract law needlessly imposes.'

Ritter placed major reliance on the commentaries accompanying § 402A to explicate the meaning and application of the newly adopted section. Ritter v. Narragansett Elec. Co., supra 109 R.I. at 190, 283 A.2d at 262. Comment m emphasizes that strict liability in tort is a doctrine free of the restrictions surrounding an action based on a contract for the sale of goods, and that it was developed for the reason that the remedies of the consumer were unduly limited by the peculiarities of the law of sales. As we recognized in Ritter, § 402A had its genesis in a California case, Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1963), where that court said,

'* * * the liability is not one governed by the law of contract warranties but by the law of strict liability in tort. Accordingly, rules defining and governing warranties that were developed to meet the needs of commercial transactions cannot properly be invoked to govern the manufacturer's liability to those injured by its defective products unless those rules also serve the purposes for which such liability is imposed.' Id. at 63, 27 Cal.Rptr. at 701, 377 P.2d at 901.

Various jurisdictions have considered the problem of whether aspects of a contract's statute of limitations should be imported into a strict liability action. The majority have rejected this mixing of strains as creating an analytical hybrid, unresponsive to the essential thrust of the strict liability doctrine. Anderson v. Fairchild Hiller Corp., 358 F.Supp. 976 (D.Alaska 1973); Nelson v. Volkswagen of America, Inc., 315 F.Supp. 1120 (D.N.H.1973); Arrow Transp. Co. v. Fruehauf Corp., 289 F.Supp. 170 (D.Or.1968); Wetzel v. Commercial Chair Co., 18 Ariz.App. 54, 500 P.2d 314 (1972); Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d 412 (1973); Kirkland v. General Motors Corp., supra. We agree with this line of decisions. ²

Finally, it should be noted that if strict liability is held to sound in warranty, it could do so only where the suit involves two directly contracting parties or where the plaintiff is a third-party beneficiary of the buyer under § 6A-2-318. This construction would lead to one set of rules for actions against the manufacturer and another for actions against the retailer, a very awkward situation where both are sued in the same action or where the retailer cross-claims against the manufacturer.

Ritter v. Narragansett Elec. Co., supra, involved a suit against both the manufacturer and the...