Opinion
civil No. 00-1348-KI
August 20, 2001
J. Rion Bourgeois, Tigard, Oregon, for Plaintiff.
Michael D. Williams, Angela M. Stewart, Williams Fredrickson, LLC, Portland, Oregon, for Defendant.
OPINION
Plaintiff Oregon Azaleas, Inc., a nursery, suffered severe damage to its crop of azaleas after applying a farm chemical ordered from defendant Western Farm Service, Inc. ("Western Farm"). Oregon Azaleas alleges claims for strict product liability, negligence, and claims under the Uniform Commercial Code ("UCC") for breach of express warranty and breach of the implied warranties of merchantability and fitness for a particular purpose. Before the court is plaintiff's motion for summary judgment (#14), defendant's motion for summary judgment (#15), defendant's motion to strike the affidavit of Richards (#29), and defendant's motion to strike the affidavits of Fessler, Fournier, Bloes, and Panzer (#42). For the reasons below, I grant summary judgment that the express warranty was breached and dismiss the other claims.
FACTS
Oregon Azaleas is in the nursery business growing only ornamental azaleas. William Kenny is the president, owner, and person in charge of operations at Oregon Azaleas. Western Farm is in the business of selling and applying agricultural fertilizers, chemicals, supplies, and services. It has been Oregon Azaleas' major supplier of farm chemicals through its Hubbard, Oregon, store for years. Western Farm employs licensed pesticide consultants to sell its product and assist customers. Two of these consultants, George Mercure and Richard Kelly, were assigned to the Oregon Azaleas account and routinely visited its nursery. Kenny relied on Mercure and Kelly for advice about what chemicals to use at the nursery.
In 1996, Oregon Azaleas ordered 50 pounds of Tri-Basic copper. Western Farm did not have the product available, so it delivered 12 pounds of Basicop, manufactured by Griffin L.L.C. Kenny remembers one conversation with Mercure about Basicop in 1996, who assured him that Tri-Basic copper and Basicop had the same chemical formulation. Oregon Azaleas confirmed on the label that Basicop could be used on azaleas and tested it on sample azaleas. Later that year, Oregon Azaleas ordered 50 pounds of basic copper sulfate, a product with the same chemical formulation as Tri-Basic copper and Basicop. Western Farm arranged for a shipment from Monterey Chemical.
On November 2, 1998, Oregon Azaleas placed another order for 50 pounds of Tri-Basic copper. The clerk who took the order, and who is not a licensed pesticide consultant, wrote down "50# TRIBASIC COPPER" on Western Farm's daily delivery sheet. Once this was typed into the computer, the delivery sheet showed the order as "50# Tri-Basic Copper Sulf 53%." Miller, a licensed pesticide consultant for Western Farm, tried to locate the product but was unable to do so for several days.
Patrick Carlson was a delivery driver and warehouse manager for Western Farm. Although he does not recall the transaction, Carlson's handwriting is on the delivery sheet, lining out Oregon Azaleas's order for "50# Tri-Basic Copper Sulf 53%" and changing it to "copper sul pwd 25% 50#." Another Western Farm driver took a bag of Phelps Dodge Triangle Brand Copper Sulfate Instant Powder from Western Farm's Hopmere store and delivered it to the porch at Oregon Azaleas on November 5, 1998. This product has an active ingredient of copper sulfate pentahydrate.
The Phelps Dodge product, copper sulfate pentahydrate, is not interchangeable with Tri-Basic copper. It is not labeled for use on azaleas, is not suitable for use as a fungicide on azaleas, and is phytotoxic, meaning that it will kill green tissue.
Typically, Kenny would review the label each time a chemical is received because the application rates change at times. This time, however, Kenny does not remember seeing the product before it was stored in the chemical cabinet.
Oregon Azaleas applied the Phelps Dodge product to some azalea cuttings in November 1999. The plants were damaged but Oregon Azaleas assumed that the damage was caused by placing the cuttings in a cooler.
Later in November 1999, Kenny wanted to combat a pythium fungus on the plants in part of the nursery. He gave the bag of the Phelps Dodge product to an employee and told him the rate at which to apply the product. Kenny did not read the entire label at this time and assumed that it was a bag of Tri-Basic copper. The employee also did not read the entire label because he cannot read English. The employee applied the Phelps Dodge product to azaleas in greenhouse ranges 3 and 4. The next morning, the plants in those ranges were damaged. Kelly came to observe the damage within days and found leaf damage, burn, phytotoxicity, discoloration, and leaf drop. He examined the bag and was the first to notice that it was not Tri-Basic copper.
If Mercure was asked to recommend a product to combat pythium, he would not have recommended any copper products, including Tri-Basic copper, because they would have been ineffective against the fungus. All copper products, including the Phelps Dodge product, could be sprayed on walkways and buildings in the nursery to disinfect them as protection against pythium.
Oregon Azaleas filed the report described in ORS 634.172 with the Oregon Department of Agriculture and mailed a copy to Western Farm on September 8, 2000.
LEGAL STANDARDS
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied, 120 S.Ct. 375 (1999).
DISCUSSION
I. Statutory Report Requirement
Western Farm raises the affirmative defense that Oregon Azaleas failed to give notice of its claim as required by ORS 634.172 and ORS 12.272. It contends that this notice is a prerequisite to any civil action against it, a "pesticide operator" under the statute. Oregon Azaleas contends that the defense fails because: (1) the statute is not applicable because Western Farm did not apply the pesticide; (2) the statute is unconstitutionally vague and violates due process if applied to Western Farm; and (3) it gave notice before half the crop was harvested.
ORS 634.172 states:
I. (1) No action against a landowner, person for whom the pesticide was applied or pesticide operator arising out of the use or application of any pesticide shall be commenced unless, within 60 days from the occurrence of the loss, within 60 days from the date the loss is discovered, or, if the loss is alleged to have occurred out of damage to growing crops, before the time when 50% of the crop is harvested, the person commencing the action:
II. (a) Files a report of the alleged loss with the State Department of Agriculture;
III. (b) Mails or personally delivers to the landowner or pesticide operator who is allegedly responsible for the loss a true copy of the report provided for under paragraph (a) of this subsection; and
IV. (c) Mails or personally delivers to the person for whom the pesticide was applied a true copy of the report required under paragraph (a) of this subsection if that person is not the person commencing the action.
For the statute to apply to Western Farm, it would have to be considered a "pesticide operator," which is defined as "a person who owns or operates a business engaged in the application of pesticides upon the land or property of another." ORS 634.006 (13). It is undisputed that Western Farm receives income from pesticide applications as a substantial amount of its business in some of its branches, although not the two branches involved in this dispute. It is also undisputed that this action arises out of the use of a pesticide.
Oregon Azaleas argues, however, that Western Farm was the vendor of the pesticide at issue here and did not apply it to the azaleas. Thus, it contends that the statute does not apply.
The statute also contains a definition for pesticide dealer, "a person who sells, offers for sale, handles, displays or distributes any pesticide classified by the department as a restricted-use or highly toxic pesticide." ORS 634.006(11).
Western Farm relies on Vierra v. Clackamas County, 309 Or. 243, 785 P.2d 757 (1990), which held that the statute does not apply unless commercial pesticide application is at least a small part of the business in which the defendant is engaged. Id. at 247. The court concluded that Portland General Electric, which allegedly caused damage when spraying pesticide on its right-of-way, was not a pesticide operator so the plaintiff did not need to comply with the statute's notification requirement.
Although Western Farm is a pesticide operator at times, it was not acting in that capacity during the conduct at issue in this case. It was acting as a pesticide dealer. The statute does not require notification of the pesticide dealer when damage is caused. I conclude that the statute does not apply to this action.
Assuming that the chemical is classified as a restricted-use or highly toxic pesticide.
II. Product Liability
Oregon Azaleas contends that the product Western Farm delivered to it is defective in three respects: (1) inspection; (2) failure to warn; and (3) failure to properly instruct in the use of the product. The allegations are based on the fact that the Phelps Dodge product is not safe for use on azaleas.
Western Farm contends that the Phelps Dodge product was not defective if used in the normal manner. Thus, it contends that it cannot be liable under a theory of strict product liability for providing a product different from what was ordered. Western Farm also contends that the label on the bag precludes a failure to warn claim because it complies with federal law concerning the labeling of pesticides.
Oregon's product liability statute makes anyone subject to liability who sells or leases any product in a defective condition that is unreasonably dangerous to the user, consumer, or his property when that condition causes physical harm or damage to property. ORS 30.920(1). The Oregon Legislative Assembly intended for the statute to be construed in accordance with the Restatement (Second) of Torts § 402A and its comments. ORS 30.920(3).
Although the Restatement does not directly address the issue before me, several of its comments shed some light.
V. The seller is not liable when he delivers the product in a safe condition, and subsequent mishandling or other causes make it harmful by the time it is consumed.
VI. A product is not in a defective condition when it is safe for normal handling and consumption.
VII. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.
VIII. Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.
Restatement(Second) of Torts § 402A cmt. g-j (excerpted).
There is no dispute that the Phelps Dodge product was unadulterated and that it works as expected for copper sulfate pentahydrate. Thus, it is safe for normal handling and is not in a defective condition. Moreover, the ordinary consumer who purchases it, with the ordinary knowledge common to that user, would not use the product on azaleas. Consequently, it is not unreasonably dangerous.
Oregon Azaleas bases its failure to warn theory on its contention that the label was inadequate. It notes that although the label did not list the product as safe to use on azaleas, pesticides don't necessarily have all crops for which the product is safe listed on the bag. Oregon Azaleas does not dispute Western Farm's contention that the bag was approved by the Environmental Protection Agency as complying with the Federal Insecticide, Fungicide, and Rodenticide Act("FIFRA"), 7 U.S.C. § 136 et seq. It also does not dispute that FIFRA does not require the label to list all plants to which the product should not be applied. FIFRA's scheme is to list plants to which the pesticide may be applied safely. It provides that the states "shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter. Id. § 136v(b). Courts have also held that FIFRA preempts state law claims based on inadequate pesticide labels. Taylor AG Industries v. Pure-Gro, 54 F.3d 555, 561 (9th Cir. 1995) (noting that seven other circuits have held that FIFRA preempts such claims).
Based on the above, I grant summary judgment against the product liability claim.
III. Express Warranty
A. Creation of an Express Warranty
Oregon Azaleas contends that its order for Tri-Basic copper, once accepted by Western Farm, is sufficient to create an express warranty that Tri-Basic copper would be delivered. Alternatively, it contends that the 1996 delivery of Tri-Basic copper was a sample which would create an express warranty for the 1998 delivery.
Western Farm contends that this claim must fail because there was no affirmation of fact or promise made to Oregon Azaleas concerning the Phelps Dodge product so no express warranty arose. It notes that express warranties must be made by the seller. Because, at most, Kenny glanced at the product description on the delivery ticket and the invoice, those pieces of paper could not form an express warranty. Western Farm also contends that prior sales of a product do not constitute an express warranty by sample.
IX. (1) Express warranties by the seller are created as follows:
X. (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
XI. (b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
XII.(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
XIII. (2) It is not necessary to the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that the seller have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty.
The parties dispute the meaning of Jorritsma v. Farmers' Feed Supply, 272 Or. 499, 538 P.2d 61 (1975). Plaintiff, a dairy farmer, called defendant and asked "what he wanted for his 16 percent protein dairy mix." Id. at 503. Defendant quoted a price agreeable to the farmer and delivered a load of the feed. The farmer then requested a change to the mix by adding rolled grain to the pellets. Nothing was said about the percent of protein during the conversation requesting the change. The farmer sued when the changed mix contained less than 12 percent protein. The court ultimately held that there was no substantial evidence to support the contention that defendant made an express warranty about the protein content. Id. at 505. It noted:
XIV.The first fact — that plaintiff had ordered 16 percent feed — would, on its face, appear to be a "description of the goods" establishing an express warranty under ORS 72.3130(1)(b). A specific order for feed with a 16 percent protein content would, if accepted, be sufficient to establish that protein content as part of the basis of the bargain.
Id. at 507. Although the first load of feed delivered contained 16 percent protein, the loads after the farmer requested the change in the mix did not. Because there was no discussion of the protein content when the farmer requested the change, the court held that the evidence was insufficient to establish that both parties understood the protein content to remain part of the express warranty. Id.
Western Farm argues that courts have only found express warranties based on the parties' negotiation about the specification of the goods. Jorritsma does not require back-and-forth negotiations. The court held that the first order, if accepted, would have created the warranty. Its final conclusion that no express warranty arose was because of additional negotiations after the farmer was unhappy with the product.
I conclude that there is no factual issue precluding summary judgment. I hold that an express warranty arose that the goods would be Tri-Basic copper, based on acceptance of the phone order. There is no need to address whether the paperwork or the 1996 order also created an express warranty.
B. Disclaimers
Oregon Azaleas contends that the warranty disclaimers contained on the bag of the Phelps Dodge product, on the invoice, and on the delivery receipt are not effective because they were all made after the sale. Moreover, it argues that disclaimers which are inconsistent with an express warranty are invalid. Western Farm contends that the disclaimers are effective against this claim.
The last paragraph on the bottom right side of the bag states:
NOTICE TO BUYER
XV. Seller makes no warranty, expressed or implied, concerning the use of this product other than indicated on the label. Buyer assumes all risk of use and/or handling of this material when such use and/or handling is contrary to label instructions.
Williams Aff. Ex. O. The heading is capitalized and in bold type larger than the type in the paragraphs of text. The text is in the same type as the majority of text on the back of the bag, which is nearly filled with text.
The invoice, sent after delivery of the product, contains the following disclaimer:
XVI. Seller its agents do not make any representation or warranty, expressed or implied, concerning the result of the use or handling of these products. The acceptance use of these materials by Buyer shall be conclusive evidence that Buyer accepts the same subject to the terms of this invoice and assumes any risk of damage or injury which may result from the use of handling thereof.
Williams Aff. Ex. M. The disclaimer is at the bottom of the invoice in extremely tiny type. The delivery receipt states the following at the end of a two-sentence long paragraph in the middle of the page in type matching all other type on the page:
XVII. NO RECOMMENDATION HAS BEEN MADE BY, OR PROVIDED BY SELLER CONCERNING THE USE OF ANY PESTICIDE COVERED BY THIS INVOICE.
Miller Depo. Ex. 25.
Oregon Azaleas contends that the disclaimers are inconsistent with the express warranty and should not be given effect. It relies on the following statute:
XVIII. Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of ORS 72. 2020 on parol or extrinsic evidence negation or limitation is inoperative to the extent that such construction is unreasonable.
ORS 72.3160(1). Factors considered include: (1) the point in the course of the sale at which the disclaimer is attempted; (2) the conspicuousness of the disclaimer; and (3) whether the disclaimer constituted one of the "dickered" aspects of the agreement. Miller v. Hubbard-Wray, 52 Or. App. 897, 902, 630 P.2d 880 (written disclaimer that there are no warranties is inconsistent with oral warranty about the age of the equipment and thus ineffective), modified on other grounds, 53 Or. App, 531, 633 P.2d 1, rev. denied, 292 Or. 109 (1981).
I conclude that the disclaimers are inconsistent with the express warranty to sell Tri-Basic copper for several reasons. Primarily, the disclaimers do not speak to the express warranty allegedly breached. The disclaimers disavow liability for damage resulting from the use or handling of the product. Here, the wrong product was provided. The factors also weigh in Oregon Azaleas' favor. The disclaimers entered the picture at the time of delivery or later, well after the bargain was made. The one on the bag is reasonably conspicuous while the other two are much less so, particularly the one on the bottom of the invoice. Finally, the disclaimers are not bargained-over terms. I conclude that they should not be given effect.
In summary, an express warranty arose that Western Farm would provide Tri-Basic copper, it was breached when Western Farm delivered the Phelps Dodge product, and the disclaimers are ineffective. Western Farm is liable for damages available under the UCC.
IV. Implied Warranty of Merchantability
Western Farm argues that the Phelps Dodge product would pass without objection in the trade for the ordinary purpose for which it is used. Oregon Azaleas contends that the issue is whether the product delivered, the Phelps Dodge product, would pass without objection as Tri-Basic copper, the product which was ordered.
The statute states:
XIX. Goods to be merchantable must be at least such as:
XX. (a) Pass without objection in the trade under the contract description; and
XXI. (b) In the case of fungible goods, are of fair average quality within the description; and
XXII. (c) Are fit for the ordinary purposes for which such goods are used; and
XXIII. (d) Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
XXIV. (e) Are adequately contained, packaged and labeled as the agreement may require; and
XXV. (f) Conform to the promises or affirmation of fact made on the container or label if any.
The parties did not cite, and I was unable to find, any cases in which the implied warranty of merchantability is allegedly breached by delivery of a product entirely different from what was ordered. I find only two comments to the UCC which slightly address the topic:
XXVI. Goods delivered under an agreement made by a merchant in a given line of trade must be of a quality comparable to that generally acceptable in that line of trade under the description or other designation of the goods used in the agreement.
XXVII. A specific designation of goods by the buyer does not exclude the seller's obligation that they be fit for the general purposes appropriate to such goods.
UCC § 2-314 cmt. 2, 3. They do not directly address the situation, however, of delivery of the wrong product and fit the more typical case in which goods are delivered that match the general description but are of inferior quality.
It is undisputed that the Phelps Dodge product sold to Oregon Azaleas would pass without objection in the trade as Copper Sulfate Instant Powder and is fit for the ordinary purposes for that chemical. Moreover, it is in a bag properly labeled as required in subsection (f). I am convinced that the implied warranty of merchantability is not intended to address situations when the wrong product was delivered. Summary judgment is granted against the claim.
V. Implied Warranty of Fitness for a Particular Purpose
Oregon Azaleas contends that a warranty of fitness for a particular purpose arose because: (1) Western Farm knew that Oregon Azaleas' only product was ornamental azaleas; (2) Western Farm was familiar with its operations; (3) Oregon Azaleas relied on Western Farm for advice about chemicals; and (4) Western Farm knew that Oregon Azaleas used Tri-Basic copper as a fungicide on its azaleas. Further it contends that any warranty disclaimers are ineffective because they were made after the sale and because they fail to meet the statutory requirements.
Western Farm argues that this claim fails for several reasons: (1) there is no evidence that Oregon Azaleas relied on Western Farm's judgment to select a fungicide for application to its azaleas; (2) there is a factual issue on Western Farm's knowledge of the purpose for the fungicide; (3) the disclaimers are effective; and (4) an examination would have revealed that a different product was delivered.
The statute states:
XXVIII. Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under ORS 72.3160 an implied warranty that the goods shall be fit for such purpose.
XXIX. Under this section the buyer need not bring home to the seller actual knowledge of the particular purpose for which the goods are intended or of his reliance on the seller's skill and judgment, if the circumstances are such that the seller has reason to realize the purpose intended or that the reliance exists. The buyer, of course, must actually be relying on the seller.
UCC § 2-315 cmt. 1.
There is evidence that Western Farm knew that Oregon Azaleas had used Tri-Basic copper for several years for disease control on azaleas. There is no evidence that Western Farm recommended Tri-Basic copper prior to the first order for it in 1996 or that Oregon Azaleas relied on the expertise of Western Farm at the time of the first order rather than Kelly's own experience. Moreover, the 1998 order was not preceded by any discussion. Western Farm has provided evidence that it would not have recommended Tri-Basic copper to kill the pythium fungus.
The court affirmed a finding that plaintiff did not prove reliance on the seller's skill and judgment in selecting a truck in B.W. Feed v. General Equipment Co., 44 Or. App. 285, 605 P.2d 1205 (1980). This was in spite of evidence that the seller and buyer had discussed the need for carrying a payload of five to seven tons. The truck buyer also testified that he concluded from his experience that the two-axle truck would be adequate.
I conclude that there is insufficient evidence of reliance on Western Farm's skill by Oregon Azaleas to create a factual issue that the warranty of fitness for a particular purpose arose. Western Farm did not even know what the particular purpose was and would not have recommended the product ordered by Kelly. Although Western Farm made a mistake filling the order, this warranty is not implicated. Summary judgment is granted against this claim.
VI. Comparative Negligence
Oregon Azaleas contends that comparative negligence is not a defense to a UCC breach of warranty claim because those warranties are based on breach of contract and not on fault. Western Farm cites to cases decided prior to adoption of the UCC which allow the defense. The statute addresses the issue:
XXX. (2) Consequential damages resulting from the seller's breach include:
XXXI. (a) Any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and
XXXII. (b) Injury to person or property proximately resulting from any breach of warranty.
ORS 72.7150(2) (emphasis added). The comment explains further:
XXXIII. Subsection (2)(b) states the usual rule as to breach of warranty, allowing recovery for injuries "proximately" resulting from the breach. Where the injury involved follows the use of goods without discovery of the defect causing the damage, the question of "proximate" cause turns on whether it was reasonable for the buyer to use the goods without such inspection as would have revealed the defect. If it was not reasonable for him to do so, or if he did in fact discover the defect prior to his use, the injury would not proximately result from the breach of warranty.
UCC § 2-715 cmt. 5.
Although the UCC does not use the phrases "contributory negligence" and "comparative fault," the conduct of the buyer, here Oregon Azaleas, can clearly be considered on the issue of damages to determine if the loss could have reasonably been prevented. Its conduct is not relevant, however, to whether the express warranty was breached.
VII. Negligence
Western Farm contends that the negligence claim fails because it owed no duty to Oregon Azaleas. Oregon Azaleas points to Fazzolari, in which the Oregon Supreme Court broke away from a traditional negligence analysis:
XXXIV. Unless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant's duty, the issue of liability for harm actually resulting from defendant's conduct properly depends on whether that conduct unreasonably created a foreseeable risk to the protected interest of the kind of harm that befell the plaintiff.
Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 17, 734 P.2d 1326 (1987) (emphasis deleted).
Western Farm relies on Gladhart v. Oregon Vineyard Supply Co., 164 Or. App. 438, 994 P.2d 134 (1999), rev'd on other grounds, 332 Or. 226, 26 P.3d 817 (2001). Vineyard owners sued a nursery that sold them grape vines guaranteed to be free from a particular insect. Several years later, the purchased plants, which had been infested by the insect, damaged other plants in the vineyard. The court affirmed the dismissal of the vineyard owners' negligence claim because there was no allegation of a duty independent of the sales contract. Id. at 449. This was in spite of the fact that the vineyard owners alleged that they relied on defendants because of their expertise.
Oregon Azaleas contends that Gladhart is wrongly decided in light of other Oregon Court of Appeals cases which have varying analyses concerning whether the supplier of products is governed by the general foreseeability standard of Fazzolari or § 388 of the Restatement (Second) of Torts which concerns supplying a chattel when there is reason to know the chattel is likely to be dangerous for the use for which it is supplied. See Fields v. Jantec, Inc., 115 Or. App. 350, 839 P.2d 723 (foreseeability), rev'd on other grounds, 317 Or. 432, 857 P.2d 95 (1993); Hoyt v. Vitek, Inc., 134 Or. App. 271, 894 P.2d 1225 (1995) (§ 388); and Waddill v. Anchor Hocking, Inc., 149 Or. App. 464, 944 P.2d 957 (1997) (§ 388), rev'd on other grounds, 330 Or. 376, 8 P.3d 200 (2000), remanded for further proceedings, 331 Or. 595 (2001). In spite of this, Oregon Azaleas contends that the court has consistently held there is a duty of due care owed by the vendor of products giving rise to a claim for negligence for physical injury.
I agree that it is not easy to reconcile these cases. Gladhart, however, could be read as invoking a relationship, that of buyer and seller, that limits a defendant's duties as discussed in Fazzolari. The facts in Gladhart are very similar to those before me. I also note that the cases relied on by Oregon Azaleas all had plaintiffs who suffered personal injury and not injury to property. Because I see a way to reconcile Gladhart with Fazzolari, I will follow its holding and conclude that a negligence claim cannot lie between a buyer and a seller. I see insufficient evidence of a special relationship to raise a factual issue. Summary judgment is granted against the negligence claim.
VIII. Damages
Experts for each party have provided extensive, but differing, reports of the damages suffered by Oregon Azaleas. The amount of damage for breach of the express warranty will be decided by the jury.
CONCLUSION
Plaintiff's motion for summary judgment (#14) is granted in part and defendant's motion for summary judgment (#15) is granted in part. Defendant's motion to strike the affidavit of Richards (#29) is moot because I do not need to rely upon the statement which raised objections. Likewise, defendant's motion to strike the affidavits of Fessler, Fournier, Bloes, and Panzer (#42) is moot.