that theory may be employed by the plaintiff in this case.
The single case which best demonstrates the general approach taken by New Jersey's highest court in this area is Santor v. A & M Karagheusian, 44 N.J. 52, 207 A.2d 305 (1965). In that case the New Jersey Supreme Court adopted the principle that a strict-liability claim is available in a case involving only economic loss as opposed to personal injury. The court found that "although the doctrine has been applied principally in connection with personal injuries sustained by expected users from products which are dangerous when defective, . . . the responsibility of the maker should be no different where damage to the article sold or to other property of the consumer is involved." Santor, 44 N.J. at 66. Although this is clearly a minority view among the states, it remains the law in New Jersey to this day.
The only New Jersey case to directly address the issue of whether strict liability can be applied to a commercial claimant is Monsanto v. Alden Leeds, 130 N.J. Super. 245, 326 A.2d 90 (Law Div. 1970). The Monsanto decision came down on the side of such an application, determining that "injuries to a man's business can be as detrimental to our society as injuries to his person." 130 N.J. Super. at 259. Combined with the New Jersey Supreme Court's Santor holding, Monsanto provides a strong indication that strict-liability actions are available to commercial purchasers in New Jersey. It is clear that under the policy of the New Jersey courts the maker or manufacturer of a defective and unreasonably dangerous product is to bear the cost of an injury caused by that product, regardless of whether the injury is personal or economic, or whether the purchaser is a private individual or a corporation. Thus, decisions from other jurisdictions, such as Plainwell Paper Co. v. Pram, 430 F. Supp. 1386 (W.D. Pa. 1977), and Royal Indemnity Co. v. Westinghouse Electric Corp., 385 F. Supp. 520 (S.D.N.Y. 1974), which stress the "economic loss" aspect of the case in declining to find strict liability are inapposite in these circumstances.
The primary consideration, then, in determining if strict liability is available to ICI is whether the alleged defect in the Waldron coupling rendered it "unreasonably dangerous." In this instance "the nature of the defect and the type of risk it poses are the guiding factors." Pennsylvania Glass Sand v. Caterpillar Tractor Co., 652 F.2d 1165, 1174 (3d Cir. 1981). The plaintiff has produced sufficient evidence from affidavits and depositions of Elliott employees to demonstrate that the damage to its property was of a sudden and severe nature. Indeed, the head of Elliott's mechanical design department, after participating in an investigation of the accident, referred to it as a "catastrophic failure." (Deposition Exhibit P 52 at 4). Although no individual was physically injured as a result of the coupling's failure, the risk and damage which did occur are in and of themselves enough to give rise to a strict-liability claim in New Jersey.
ICI alleges negligence on Elliott's part in designing and selecting the coupling which was eventually installed in its feedgas train. Elliott does not assert that a negligence claim may not arise out of the same circumstances which give birth to contract (actions), and there is no authority for this proposition. This situation is analogous to that in Triangle Underwriters v. Honeywell, 604 F.2d 737 (2d Cir. 1979). In that case, differing statutes of limitations were applied in assessing the viability of the plaintiff's contract and tort claims, respectively, with both claims arising from the identical set of facts. The same result should apply here.
In the instant case, Elliott has failed to show that the UCC provides the sole remedy for plaintiffs such as ICI in this set of circumstances. Thus, the limitations period for such actions (consisting of four years from the date of delivery of the defective product) does not operate to bar all of plaintiff's claims. Instead, the New Jersey general statute of limitations must be applied to ICI's strict-liability and negligence claims. Under that statute a cause of action accrues when a party discovers or should discover the injuries caused by an alleged defect. Rosenau v. City of New Brunswick, 51 N.J. 130, 137, 238 A.2d 169 (1968). In this case the plaintiff initiated its action within the mandated period and a grant of summary judgment for defendant Elliott is thus not warranted.
Elliott's revision #1 of its original proposal to the plaintiff, dated November 26, 1978, contains "Terms and Conditions" on the back side of the quotation which purport to disclaim liability for consequential damages of any kind. Elliott contends that this provision is a part of the contract between the parties and prevents ICI's recovery here. ICI counters that the January 26 writing was a confirmation of the parties' January 25 oral agreement, and that the disclaimer provision constitutes "additional terms" which "materially alter" said agreement and thus did not become a part of the contract under section 2-207 of the UCC.
The Third Circuit and other courts have ruled that a clause such as the one in question limiting liability for damage to property is acceptable in contracts between business concerns. See Chatlos v. National Cash Register Corp., 635 F.2d 1081 (3d Cir. 1980); Keystone Aeronautics Corp. v. R.J. Enstrom Corp., 499 F.2d 146 (2d Cir. 1974). Such disclaimers have been held valid whether limiting liability for tortious injury, contract damages, or both. Gates Rubber Co. v. USM Corp., 508 F.2d 603 (7th Cir. 1975); Royal Indemnity Co. v. Westinghouse Electric Corp., 385 F. Supp. 520 (S.D.N.Y. 1974). Therefore, in the instant case the court is concerned not with the validity of Elliott's disclaimer, but with the question of whether it ever became part of the final agreement between Elliott and ICI.
Although Elliott's "Terms and Conditions" were contained in its November 1972 proposal, there is no clear proof that they remained a part of the oral agreement reached with ICI on January 25, 1972. In fact, the parties did not even discuss these provisions in the negotiations which led to the conclusion of this agreement. (Deposition of E. O. Mairer [Elliott's Western Service Manager] at 37, 50-51; Deposition of R. Stewart [Elliott's Western Engineering Manager]). Under these circumstances, it cannot be assumed that a disclaimer of all consequential damages was "impliedly" included in the January 25 agreement. The disclaimer in the January 26 confirmation did then constitute an alteration of the parties' oral agreement.
Under section 2-207(2) (b) of the UCC additional proposed terms which materially alter a contract do not become part of that contract. The courts have generally held that whether a particular clause materially alters an agreement is a question of fact to be resolved at trial, and not a matter suitable for summary judgment. See N & D Fashions, Inc. v. DHJ Industries, Inc., 548 F.2d 722, 726 (8th Cir. 1977); Leonard Pevar Co. v. Evans Products Co., 524 F. Supp. 546 (D. Del. 1981); Ebasco Services, Inc. v. Pennsylvania Power & Light Co., 402 F. Supp. 421 (E.D. Pa. 1975). Given these decisions and the factual situation of this case, it is impossible to conclude at this point that Elliott's disclaimer clause was or was not a material alteration of its agreement with ICI. This is an issue more appropriately left for decision at trial. Summary judgment is denied. Plaintiff will submit an order within 10 days. No costs.