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EARL BRACE & SONS v. CIBA-GEIGY CORP.

March 30, 1989

EARL BRACE & SONS, Plaintiff,
v.
CIBA-GEIGY CORPORATION, Defendant



The opinion of the court was delivered by: MENCER

 GLENN E. MENCER, UNITED STATES DISTRICT JUDGE

 The instant matter is before the Court on a motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, filed by the Defendant, Ciba-Geigy Corporation ("Ciba").

 In May, 1987 the plaintiff, Earl Brace & Sons ("Brace"), purchased the defendant's herbicide Dual 8E to control the growth of grasses on Brace's potato farm. Between May 24 and May 28, 1987, Brace planted 55 acres of potatoes. At the beginning of June, 1987, Brace sprayed a combination of Dual 8E and Lexone on the potato patch. Brace contends that while the Lexone controlled the broadleaf weeds, the Dual 8E failed to control the grasses. Consequently, fall panicum infested Brace's field and the crop was a complete failure. Brace alleges that Ciba breached express and implied warranties and that Ciba is strictly liable in tort. Brace estimates that he would have been able to sell his crops for $ 77,000.

 First, Ciba asserts that through its label it effectively disclaimed liability for consequential damages because its label conforms with Section 2719(c) of the Pennsylvania Commercial Code. Section 2719 provides:

 
Limitation of consequential damages. -- Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. . . .

 13 Pa.C.S.A. § 2719(c). Ciba produces the Dual 8E label which provides: "In no case shall CIBA-GEIGY or the Seller be liable for consequential, special or indirect damages resulting from the use or handling of this product." On the label, Ciba further offers an explanation of the limitation:

 
It is impossible to eliminate all risks inherently associated with use of this product. Crop injury, ineffectiveness, or other unintended consequences may result because of such factors as weather conditions, presence of other materials, or the manner of use or application all of which are beyond the control of CIBA-GEIGY or the Seller.

 Ciba argues that due to these unpredictable conditions it cannot be an insurer of crops.

 Additionally, Ciba asserts that a limitation on liability is enforceable unless it is ambiguous, inconspicuous, or unconscionable. A limitation is clear and conspicuous if a reasonable person would have noticed and understood it. See Thermo King Corp. v. Strick Corp., 467 F. Supp. 75 (W.D.Pa. 1979), aff'd, 609 F.2d 503 (3d Cir. 1979). In this case, Ciba alleges that prior to the 1987 application, Douglas Brace had read much of the Dual 8E label and that he should have known of or read the disclaimer this time.

 Ciba further contends that its disclaimer is not unconscionable because it merely allocates risks between the manufacturer and the farmer. Many manufacturers of herbicides limit their liability. See Lindemann v. Eli Lilly & Co., 816 F.2d 199 (5th Cir. 1987); Hill v. BASF Wyandotte Corp., 696 F.2d 287 (4th Cir. 1982); Feeders, Inc. v. Monsanto Co., 33 U.C.C. Rep. Serv. (Callaghan) 541 (D.Minn. 1981). Ciba also contends that its disclaimer has been held enforceable in other jurisdictions. See Slemmons v. CIBA-GEIGY Corp., 57 Ohio App. 2d 43, 385 N.E.2d 298, 11 Ohio Op. 3d 37 (1978). See also Kleven v. GEIGY Agricultural Chem., 303 Minn. 320 227 N.W.2d 566 (1975).

 In response, Brace contends that Sections 2316 and 2719 of the Pennsylvania Commercial Code provide that a disclaimer is invalid where the exclusive remedy provided in the contract fails of its essential purpose or the limitation of consequential damages is unconscionable. See Frank's Maintenance & Engineering, Inc., 86 Ill. App. 3d 980, 408 N.E.2d 403, 42 Ill. Dec. 25 (1980). See also Mallory v. Conida Warehouses, Inc., 134 Mich. App. 28, 350 N.W.2d 825 (1984); Latimer v. William Mueller & Son, Inc., 149 Mich. App. 620, 386 N.W.2d 618 (1986).

 Brace argues that the disclaimer was not conspicuous because it was inside the sealed carton attached to the plastic containers, in violation of § 162.10(a)(4) of the Code of Federal Regulations, and the limitation was in a booklet of 32 pages of small print. Nowhere in the Table of Contents is there a listing of disclaimers or warranties. The heading "Conditions of Sale and Warranty" is the most inconspicuous of all of the headings on the label and is obscured by the heading "Directions for Use. Brace further asserts that he relied on the representations of Ciba's field representative, Mr. Robert Kirk, in selecting Dual 8E. Mr. Kirk failed to inform Brace of the limitations.

 Brace contends that a limitation of consequential damages is unconscionable because the defect is latent, rendering the remedy illusory. See Stanley A. Klopp, Inc. v. John Deere Company, 510 F. Supp. 807 (E.D.Pa. 1981), aff'd, 676 F.2d 688 (3d Cir. 1982). See also Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205 (3d Cir. 1970), cert. denied 400 U.S. 826, 27 L. Ed. 2d ...


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