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Gladhart v. Gladhart12/22/1999
hylloxera free in the future. Their argument assumes that ORS 72.7250 controls their breach of contract and express and implied warranty claims but that the accrual of those claims is postponed because the warranties purportedly extended to the future. Thus, the four-year statute of limitations in ORS 72.7250(1) did not begin to run until the plants matured and could be compared to healthy plants. Plaintiffs rely on ORS 72.7250(2), which provides, in part:
"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." Plaintiffs' breach of express warranty claim alleges that " efendants' expressly warrantied the 1991 Stock as 'Phylloxera Free'" in order to create reliance and encourage customers to choose their product as opposed to a competing product without a warranty. Plaintiffs' breach of express warranty under the UCC claim alleges that as the basis of the bargain between plaintiffs and defendants: (1) " efendants provided Oregon State Certification, which stated that 'Grape plants grown by Mark Benoit Willamette Valley Vineyard Services have been visually inspected and no grape Phylloxera were found'"; (2) defendants described their stock as "Phylloxera Free"; and (3) " efendants offered a State Certified, 'Phylloxera Free' Sample as an example of the quality of goods which the Plaintiffs were purchasing, creating an express warranty that the whole of the goods purchased would conform to the sample." Additionally, plaintiffs also allege that defendants breached the implied warranties of fitness for a particular purpose and merchantability based on the operative facts alleged. We perceive nothing in the language of the alleged warranties from which it can be inferred that they explicitly or implicitly extend to future performance. They merely warrant that the plants were not contaminated with phylloxera at the time of the sale. Thus, the exception to ORS 72.7250(1) in ORS 72.7250(2) is inapplicable, and the trial court did not err in dismissing plaintiffs' warranty claims.
In sum, plaintiffs fail to state a negligence per se claim under ORS chapter 633 because the statute on which they rely is not implicated by the facts that they allege. Plaintiffs' negligence and negligent misrepresentation claims fail because they do not allege a duty independent of the sales contract between the parties. Plaintiffs allege a sufficient products liability claim, and, based on the pleadings, their claim appears to have been timely filed under ORS 30.905. Plaintiffs' breach of contract and warranty claims fail because they were filed after the statute of limitations in ORS 72.7250 had run.
Reversed and remanded as to products liability claim; otherwise affirmed.
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