## Facts

- Nebraska farmers William Timothy (“Tim”) Adams and Carol Adams planned to grow edible beans on 860 acres of center-pivot irrigated fields in 1989.
- Adams retained a crop consultant to recommend fertilizer and herbicide programs; the consultant recommended using Eptam with Prowl, a dinitroaniline herbicide.
- Adams bought the herbicides from a cooperative; the cooperative’s employee applied them at the consultant’s specified rate.
- The bean crop initially grew well, but after July 1 the plants weakened and the damage spread across the treated acreage.
- Untreated areas functioned as “controls”: beans flourished in a strip where herbicide was not applied due to a parked pivot and in an area where sod had recently been broken and no herbicide was applied.
- Plaintiffs presented expert testimony that the observed injury pattern was consistent with dinitroaniline herbicide damage; the manufacturer presented expert testimony attributing injury to irrigation water quality.
- The manufacturer’s product literature included a written disclaimer stating it made “no warranty of merchantability” and limiting liability, formatted separately from surrounding text.

## Issues

1. Whether the evidence (expert and circumstantial) was sufficient to submit causation to the jury and to deny directed verdict and JNOV.
2. Whether the implied warranty of merchantability arose under the U.C.C., and whether it was effectively disclaimed under U.C.C. § 2-316.
3. Whether “conspicuousness” of a written warranty disclaimer is for the court to decide as a matter of law, and whether the jury instructions improperly assigned or explained that determination.
4. Whether strict products liability was properly submitted and supported independently of the warranty theory.

## Decision

- Affirmed the denial of directed verdict and JNOV on causation; the combined expert testimony and treated-versus-untreated field evidence permitted a reasonable inference that the herbicide caused the crop loss.
- Held that an implied warranty of merchantability existed in the merchant sale of herbicide unless effectively excluded under the U.C.C.
- Concluded the manufacturer’s disclaimer language could satisfy U.C.C. § 2-316 because it mentioned “merchantability” and was written in a manner capable of being conspicuous.
- Reversed in part and remanded for a new trial due to errors in the trial court’s handling and instruction of the disclaimer/conspicuousness question and its legal effect on the implied-warranty claim.
- Largely affirmed submission of strict liability; contractual disclaimer rules applicable to implied warranty did not automatically bar the tort claim.

## Legal Principles

- Causation in agricultural chemical cases may be proved through expert opinion combined with circumstantial “pattern” evidence, including comparisons between treated and untreated plots.
- A merchant sale of goods carries an implied warranty of merchantability under U.C.C. § 2-314 unless excluded or modified.
- To disclaim the implied warranty of merchantability under U.C.C. § 2-316, a written disclaimer must mention “merchantability” and be conspicuous.
- Conspicuousness under the U.C.C. is generally a legal determination for the court; misallocation of that role or unclear instructions about the disclaimer’s effect can require a new trial on the warranty theory.
- Strict products liability and implied warranty are distinct theories; a contract-based disclaimer that may bar implied-warranty recovery does not necessarily defeat strict-liability recovery.

## Conclusion

The court held that plaintiffs presented sufficient evidence for the jury to find the herbicide caused the bean-crop injury and permitted strict-liability submission, but it ordered a new trial on the implied-warranty claim because the trial court improperly handled and instructed the jury on the conspicuousness and effect of the manufacturer’s U.C.C. disclaimer.


Adams v. Am. Cyanamid Co., 498 N.W.2d 577 (Neb. Ct. App. 1992)