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Potter v. Wilbur-Ellis Co.8/6/1991
Dan and Debra Potter brought an action against Wilbur-Ellis Company, a retailer of pesticides. They appeal (1) the summary judgment dismissal of their negligence claims, (2) the summary judgment dismissal of their Consumer Protection Act (CPA), RCW 19.86.020, claim, and (3) the trial court's failure to find the disclaimer of warranties the Potters signed was unconscionable and unenforceable as a matter of law.
The facts, in the light most favorable to the Potters, are as follows:
The Potters own and operate a lawn care business in Wenatchee. In the spring of 1987, John Westerdahl, sales representative for Wilbur-Ellis, called on Dan Potter at his office and presented a sales talk about the use of the herbicide Tee Time. Mr. Potter maintains that Mr. Westerdahl stated Tee Time was a good herbicide for use on lawns, was presently being used on a golf course in Eastern Washington, Wilbur-Ellis was monitoring that use closely, and the herbicide was rendering good performance in the control of weeds in lawns. Mr. Potter had already begun using another herbicide for the spring of 1987 and did not purchase any Tee Time at that time.
During the 1987 season, Mr. Westerdahl continued to visit Mr. Potter and recommend the use of Tee Time. Another lawn care company in Yakima, Green Baron, purchased Tee Time from Wilbur-Ellis and began to apply it in the spring of 1987. Wilbur-Ellis learned later in 1987 that Green Baron had some root growth problems in some of the lawns, with resulting fading out and browning of the lawns. Mr. Westerdahl personally visited those lawns, but Green Baron made no claim against Wilbur-Ellis for the damage, and Mr. Westerdahl maintains that a county extension agent in touch with Green Baron had concluded another chemical was responsible for the damage.
The Potters ordered and applied a small amount of Tee Time in the fall of 1987. Mr. Westerdahl again visited Mr. Potter in the late winter or early spring of 1988. He again gave another Tee Time sales presentation saying, among other things, Tee Time would not harm lawns.
Relying on the statements of Mr. Westerdahl, the Potters purchased a large amount of Tee Time for the 1988 spring application. Mr. Potter maintains that at no time during any of his conversations with Mr. Westerdahl, or anyone else associated with Wilbur-Ellis, did they discuss or negotiate any disclaimer of warranties. Mr. Potter
signed an invoice upon delivery of most of the Tee Time which contained a disclaimer immediately above the signature line. The disclaimer read as follows:
It is agreed by the buyer that WILBUR-ELLIS CO. disclaims the implied warranties of merchantability and fitness for a particular purpose, and all liability for consequential damages and that these disclaimers have been bargained for. WILBUR-ELLIS CO. makes no express warranties beyond those which are on the label of the product sold. Buyer represents that he has fully complied with the licensing requirements for spray applicators in the state in which the product is used. Buyer agrees to pay per cent per annum interest on past due accounts and attorney fees if turned over to attorney for collection.
The Potters applied Tee Time to approximately 900 lawns in the spring of 1988 in accordance with label directions. Most or all were damaged by the chemical. The Potters brought suit against Wilbur-Ellis to recover their damages.
On Wilbur-Ellis' summary judgment motion, the trial court granted a partial summary judgment of dismissal of all claims of negligence based on violation of RCW 15.58.150, violation of RCW 17.21.15
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