[711]*711GILLETTE, J.
Plaintiff alleged in her amended complaint1 that defendant manufactured and sold an insecticide to plaintiff’s employer for general use in the employer’s plant and that plaintiff suffered harmful physical effects as a result of the use of that insecticide. She alleged that she first noticed those effects on approximately January 4, 1973, but did not discover the cause [713]*713until July 15, 1974. She commenced this action on December 19, 1975.
Defendant demurred on the grounds that the action was barred by the applicable statute of limitations and that the complaint did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer on both grounds. Plaintiff refused to plead over and she appeals from the resulting judgment. We reverse and remand.
The trial court apparently regarded the "strict liability” theory defined in Restatement of Torts 2d, § 402A, as the gravamen of the complaint, and the court accordingly determined that the two-year limitation period of ORS 12.110(1) was applicable.2
We conclude that the complaint does state sufficient facts to constitute a cause of action on the theory of strict liability. Paragraph II adequately alleges that defendant is engaged in the business of manufacturing and selling products of the kind in question. Paragraphs III and IV allege that defendant sold plaintiff’s [714]*714employer the product which occasioned the alleged injuries. The complaint sufficiently alleges facts from which it can be inferred that the product was expected to and did reach the purchaser without substantial change in the condition in which it was sold. Paragraph VII alleges that the product "was of an inherently poisonous nature to the plaintiff.” While not optimally phrased, paragraph VII succeeds in stating that the product was "unreasonably dangerous to the user or consumer.” See Brown v. Western Farmers Assoc., 268 Or 470, 477, 521 P2d 537 (1974). The demurrer should not have been sustained on the ground that the complaint failed to state a cause of action.
We also conclude that the complaint pleads facts from which it can be found that plaintiff’s cause of action is not barred by the two-year statute of limitations. Paragraph X alleges:
"That plaintiff did not discover the cause of her physical problems and injuries until July 15, 1974, and that this action is commenced within two years from the date of said discovery.”
In Schiele v. Hobart Corporation, 284 Or 483, 587 P2d 1010 (1978), the Supreme Court enunciated the principle that, under circumstances of the kind allegedly present here, the limitation period commences running
"when a reasonably prudent person associates his symptoms with a serious or permanent condition and at the same time perceives the role which the defendant has played in inducing that condition. * * *” 284 Or at 490.
The allegation in paragraph X is sufficient to survive demurrer under the Schiele test.
We next consider whether the complaint states a cause of action for breach of warranty, as well as strict liability.
The defendant does not appear to question that plaintiff has adequately pleaded facts constituting a [715]*715cause of action under the warranty provisions of the Uniform Commercial Code. The question is whether, legally, she can have a cause of action under those provisions. Defendant argues that she cannot, first, because her action is, in substance, one for strict liability, and cannot be otherwise characterized by plaintiff consistently with Dowell v. Mossberg, 226 Or 173, 355 P2d 624, 359 P2d 541 (1961), and later cases holding that the dominant characteristic of an action rather than the plaintiff’s designation is determinative of the action’s nature; and, second, because plaintiff lacks the requisite privity with defendant to bring an action for breach of warranty.
The Supreme Court manifestly held in Redfield v. Mead, Johnson & Co., 266 Or 273, 512 P2d 776 (1973), that plaintiffs may elect to proceed under the UCC or § 402 A when injured by products which are both unreasonably dangerous and not as warranted; that by proceeding under the UCC they may avail themselves of the UCC’s four-year statute of limitations (ORS 72.7250), rather than the two-year tort statute, and that the rule of Dowell v. Mossberg, supra, is inappo-site in light of the express statutory right of action and express limitation period provided by the UCC. Defendant argues that the Supreme Court recanted from Redfield in Lindemeier v. Walker, 272 Or 682, 684-85, 538 P2d 1266 (1975). We understand the language of Lindemeier upon which defendant relies as saying no more than that Redfield does not modify Dowell or make Dowell inapplicable to various situations of kinds other than the kind involved in Redfield and involved here. We reject defendant’s first argument.
Defendant’s second argument, that there is no privity of contract between the parties to this action and that privity is a prerequisite to plaintiff’s having a cause of action, presents a closer question.
[716]*716No Oregon case prior to today has construed the warranty provision of ORS 72.31803 to extend to parties claiming damages for personal injury who are not in privity with the seller. The Supreme Court has mentioned one aspect of the question in a suit which involved a direct purchaser who was in privity, saying,
"[This case involves] * * * a direct sale by defendant to plaintiff. Therefore, this case does not require us to consider whether the protection of the Code’s warranty provisions will be extended to other persons in the distributive chain. ” Redfield v. Mead, Johnson & Co., supra, 266 Or at 284, n 4. (emphasis supplied.)
As the emphasized material makes clear, the court was recognizing a question concerning a plaintiff who was a remote or ultimate purchaser in the direct distributive chain. Not even mentioned was the problem we face today: a person outside the distributive chain who comes in contact with the product.
While the Supreme Court has not spoken to the question of whether privity is a prerequisite to liability in cases of personal injury, it has spoken clearly to the same question where only economic injury is alleged: privity is necessary. State ex rel Western Seed v. Campbell, 250 Or 262, 268, 442 P2d 215 (1968); Hupp v. Metered Washer Service, 256 Or 245, 247, 472 P2d 816 (1970); Davis v. Homasote Company, 281 Or 383, 386, 574 P2d 1116 (1978).
We see no reason to alter the Western Seed/Hupp/Davis rule with respect to personal injuries. The dissent would do so, saying that personal injuries to third parties caused by defective products are more readily foreseeable than is economic injury. Unlike the dissent, we see nothing about personal injuries that makes them inherently more foreseeable.
Free access — add to your briefcase to read the full text and ask questions with AI
[711]*711GILLETTE, J.
Plaintiff alleged in her amended complaint1 that defendant manufactured and sold an insecticide to plaintiff’s employer for general use in the employer’s plant and that plaintiff suffered harmful physical effects as a result of the use of that insecticide. She alleged that she first noticed those effects on approximately January 4, 1973, but did not discover the cause [713]*713until July 15, 1974. She commenced this action on December 19, 1975.
Defendant demurred on the grounds that the action was barred by the applicable statute of limitations and that the complaint did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer on both grounds. Plaintiff refused to plead over and she appeals from the resulting judgment. We reverse and remand.
The trial court apparently regarded the "strict liability” theory defined in Restatement of Torts 2d, § 402A, as the gravamen of the complaint, and the court accordingly determined that the two-year limitation period of ORS 12.110(1) was applicable.2
We conclude that the complaint does state sufficient facts to constitute a cause of action on the theory of strict liability. Paragraph II adequately alleges that defendant is engaged in the business of manufacturing and selling products of the kind in question. Paragraphs III and IV allege that defendant sold plaintiff’s [714]*714employer the product which occasioned the alleged injuries. The complaint sufficiently alleges facts from which it can be inferred that the product was expected to and did reach the purchaser without substantial change in the condition in which it was sold. Paragraph VII alleges that the product "was of an inherently poisonous nature to the plaintiff.” While not optimally phrased, paragraph VII succeeds in stating that the product was "unreasonably dangerous to the user or consumer.” See Brown v. Western Farmers Assoc., 268 Or 470, 477, 521 P2d 537 (1974). The demurrer should not have been sustained on the ground that the complaint failed to state a cause of action.
We also conclude that the complaint pleads facts from which it can be found that plaintiff’s cause of action is not barred by the two-year statute of limitations. Paragraph X alleges:
"That plaintiff did not discover the cause of her physical problems and injuries until July 15, 1974, and that this action is commenced within two years from the date of said discovery.”
In Schiele v. Hobart Corporation, 284 Or 483, 587 P2d 1010 (1978), the Supreme Court enunciated the principle that, under circumstances of the kind allegedly present here, the limitation period commences running
"when a reasonably prudent person associates his symptoms with a serious or permanent condition and at the same time perceives the role which the defendant has played in inducing that condition. * * *” 284 Or at 490.
The allegation in paragraph X is sufficient to survive demurrer under the Schiele test.
We next consider whether the complaint states a cause of action for breach of warranty, as well as strict liability.
The defendant does not appear to question that plaintiff has adequately pleaded facts constituting a [715]*715cause of action under the warranty provisions of the Uniform Commercial Code. The question is whether, legally, she can have a cause of action under those provisions. Defendant argues that she cannot, first, because her action is, in substance, one for strict liability, and cannot be otherwise characterized by plaintiff consistently with Dowell v. Mossberg, 226 Or 173, 355 P2d 624, 359 P2d 541 (1961), and later cases holding that the dominant characteristic of an action rather than the plaintiff’s designation is determinative of the action’s nature; and, second, because plaintiff lacks the requisite privity with defendant to bring an action for breach of warranty.
The Supreme Court manifestly held in Redfield v. Mead, Johnson & Co., 266 Or 273, 512 P2d 776 (1973), that plaintiffs may elect to proceed under the UCC or § 402 A when injured by products which are both unreasonably dangerous and not as warranted; that by proceeding under the UCC they may avail themselves of the UCC’s four-year statute of limitations (ORS 72.7250), rather than the two-year tort statute, and that the rule of Dowell v. Mossberg, supra, is inappo-site in light of the express statutory right of action and express limitation period provided by the UCC. Defendant argues that the Supreme Court recanted from Redfield in Lindemeier v. Walker, 272 Or 682, 684-85, 538 P2d 1266 (1975). We understand the language of Lindemeier upon which defendant relies as saying no more than that Redfield does not modify Dowell or make Dowell inapplicable to various situations of kinds other than the kind involved in Redfield and involved here. We reject defendant’s first argument.
Defendant’s second argument, that there is no privity of contract between the parties to this action and that privity is a prerequisite to plaintiff’s having a cause of action, presents a closer question.
[716]*716No Oregon case prior to today has construed the warranty provision of ORS 72.31803 to extend to parties claiming damages for personal injury who are not in privity with the seller. The Supreme Court has mentioned one aspect of the question in a suit which involved a direct purchaser who was in privity, saying,
"[This case involves] * * * a direct sale by defendant to plaintiff. Therefore, this case does not require us to consider whether the protection of the Code’s warranty provisions will be extended to other persons in the distributive chain. ” Redfield v. Mead, Johnson & Co., supra, 266 Or at 284, n 4. (emphasis supplied.)
As the emphasized material makes clear, the court was recognizing a question concerning a plaintiff who was a remote or ultimate purchaser in the direct distributive chain. Not even mentioned was the problem we face today: a person outside the distributive chain who comes in contact with the product.
While the Supreme Court has not spoken to the question of whether privity is a prerequisite to liability in cases of personal injury, it has spoken clearly to the same question where only economic injury is alleged: privity is necessary. State ex rel Western Seed v. Campbell, 250 Or 262, 268, 442 P2d 215 (1968); Hupp v. Metered Washer Service, 256 Or 245, 247, 472 P2d 816 (1970); Davis v. Homasote Company, 281 Or 383, 386, 574 P2d 1116 (1978).
We see no reason to alter the Western Seed/Hupp/Davis rule with respect to personal injuries. The dissent would do so, saying that personal injuries to third parties caused by defective products are more readily foreseeable than is economic injury. Unlike the dissent, we see nothing about personal injuries that makes them inherently more foreseeable. Why is it, [717]*717for instance, more likely that the presence of the insecticide in this case will activate hitherto unsuspected chemical sensitivities than it was that the substandard subflooring used by the builder in Davis v. Homasote Company, supra, would cause economic loss if it failed?
We note, too, that were we to start down the road urged by the dissent we would be required to start all over again determining which kinds of products will be included in this new area of liability: Would it be confined to the traditional area of "ultrahazardous” products? See Wights v. Staff Jennings, 241 Or 301, 405 P2d 624 (1965) (defective boat motor causing gas explosion). The product involved here — a general insecticide — probably does not fit that category. Would it be applied to the sale of any product found to be "in a defective condition unreasonably dangerous to the user?” See Heaton v. Ford Motor Company, 248 Or 467, 435 P2d 806 (1967) (adopting Restatement (Second) of Torts, § 402A). Perhaps not, but the matter is not free from doubt. See Brendle v. General Tire & Rubber Co., 505 F2d 243 (4th Cir 1974).
The legislature, in adopting the Uniform Commercial Code warranty sections, had before it three possible versions of ORS 72.3180, each with a different definition of the class of personally injured third parties to whom the seller’s implied warranty of merchantability was deemed to extend. The legislature chose the most limited group — a group which did not include persons in the position of the plaintiff here. See 1 Anderson, Uniform Commercial Code, § 2-318:1 (2d ed 1970). We decline to expand upon the legislature’s policy decision.
Reversed and remanded.