Lesiak v. Central Valley Ag Co-op

CONCLUSION
For the reasons discussed, the judgment of the district court
is affirmed.
A ffirmed.
Wright and gerrArd, JJ., not participating.
thomAs L esiAk And A ngeLine L esiAk , husbAnd And
Wife , et AL., AppeLLAnts And cross -AppeLLees ,
v. centrAL vALLey Ag cooperAtive , inc.,
A cooperAtive corporAtion, AppeLLee
And cross -AppeLLAnt.
808 N.W.2d 67
Filed January 27, 2012. 	No. S-10-323.
1. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling on a
motion for directed verdict, an appellate court must treat the motion as an admis-
sion of the truth of all competent evidence submitted on behalf of the party
against whom the motion is directed; such being the case, the party against whom
the motion is directed is entitled to have every controverted fact resolved in its
favor and to have the benefit of every inference which can reasonably be deduced
from the evidence.
2. Summary Judgment. A court should grant summary judgment when the plead-
ings and evidence admitted show that no genuine issue exists regarding any mate-
rial fact or the ultimate inferences that may be drawn from those facts and that
the moving party is entitled to judgment as a matter of law.
3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
4. Directed Verdict: Evidence. A directed verdict is proper only when reasonable
minds cannot differ and can draw but one conclusion from the evidence, that is,
when an issue should be decided as a matter of law.
5. Crops: Damages. Where a growing crop is injured but not rendered entirely
worthless, the damage to it may be measured by the difference between the value
at maturity of the probable crop, if there had been no injury, and the value of the
actual crop, less the expense of fitting for market that portion of the probable crop
which was prevented from maturing by the injury.
6. Courts: Juries: Damages. While it is the jury’s duty to determine the amount of
damages, it is the duty of the trial court to refrain from submitting the issue of
damages to the jury where the evidence is such that a jury could not determine
the issue without indulging in speculation or conjecture.
LeSIAk v. CeNtrAL vALLey Ag CO-Op 	103
Cite as 283 Neb. 103
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

7. Damages: Evidence: Proof. Damages are not required to be proved with math-
ematical certainty, but the evidence must be sufficient to enable the trier of fact to
estimate with a reasonable degree of certainty and exactness the actual damages.
8. Summary Judgment. A motion for summary judgment is a proper mechanism to
dispose of individual legal theories.
9. Products Liability: Torts: Contracts: Negligence: Damages. Where a defective
product causes economic loss and is unaccompanied by personal injury or dam-
age to other property, the aggrieved party’s remedy lies in contract law rather than
tort law.
10. Products Liability: Torts: Contracts: Negligence: Breach of Contract. the
economic loss doctrine precludes tort remedies only where the damages caused
were limited to economic losses and where either (1) a defective product caused
the damage or (2) the duty which was allegedly breached arose solely from the
contractual relationship between the parties.
11. Damages: Words and Phrases. economic losses are defined as commercial
losses, unaccompanied by personal injury or other property damage.
12. Breach of Contract: Damages: Torts. Where only economic loss is suffered
and the alleged breach is of only a contractual duty, then the action should be in
contract rather than in tort.
13. Summary Judgment: Appeal and Error. the denial of a summary judgment
motion is neither appealable nor reviewable.
Appeal from the District Court for Merrick County: michAeL
J. oWens, Judge. Affirmed in part, and in part reversed and
remanded for a new trial.
David A. Domina, Brian e. Jorde, and Anneliese Wright, of
Domina Law group, p.C., L.L.O., for appellants.
Jordan W. Adam and D. Steven Leininger, of Leininger,
Smith, Johnson, Baack, placzek & Allen, for appellee.
heAvicAn, 	c.J., 	Wright, 	connoLLy, 	gerrArd, 	stephAn,
mccormAck , and miLLer-L ermAn, JJ.
per curiAm.
thomas Lesiak and Angeline Lesiak, husband and wife;
timothy Lesiak, their son; and ronald Lesiak, thomas Lesiak’s
brother, are Nebraska farmers who own land in Merrick and
Nance Counties. the Lesiaks suffered a reduced corn yield
in 2005, allegedly due to the overapplication of herbicide to
their crops by Central valley Ag Cooperative, Inc. (CvA).
the main issues presented in this case are whether sufficient
evidence existed to allow a jury to reasonably estimate the
104 	283 NeBrASkA repOrtS

extent of the Lesiaks’ damages and whether the economic loss
doctrine precluded the Lesiaks from seeking relief under a neg-
ligence theory.
I. BACkgrOUND
In early 2005, the Lesiaks began preparing for the upcom-
ing farming season. the Lesiaks were planning on farming
20 different fields, encompassing approximately 2,000 acres
of farmland. randy Zmek, an employee for CvA, called on
thomas (tom) Lesiak in an effort to earn more of the Lesiaks’
business. In the past, the Lesiaks had purchased fertilizer and
other chemicals from CvA. But, for the 2005 crop year, the
Lesiaks took all of their business to CvA, purchasing a “com-
plete package.” this package included diesel fuels, chemicals,
fertilizer, and seed. the package also included CvA’s general
farming knowledge and expertise. As a result of this transac-
tion, CvA conducted soil tests on the Lesiaks’ land in order to
determine the soil composition and texture. CvA recommended
which fertilizers, seed corn, pesticides, and herbicides to use.
CvA then sold all of these products to the Lesiaks.
the 	Lesiaks 	began 	to 	plant 	their 	corn 	in 	the 	spring.
Following CvA’s recommendation, the Lesiaks had purchased
approximately 947 gallons of guardsman Max, a herbicide,
from CvA and guardsman Max was applied to 16 of their 20
fields that year. Once the Lesiaks finished planting a field,
they would notify CvA, who would then spray the field with
guardsman Max.
guardsman Max is designed to kill a broad number of weeds
in a cornfield without damaging the corn crop. In order to be
effective, however, guardsman Max must be applied at a spe-
cific rate based on a number of conditions; particularly impor-
tant are the soil textures and organic content of the fields to be
sprayed. the coarser the soil of the field, the less guardsman
Max was required. Also, if the field contained less than 3 per-
cent organic matter, then less guardsman Max was needed.
All of the Lesiaks’ fields contained less than 3 percent
organic matter, with the exception of a small portion of one
of their fields. the record indicates that roughly 68 percent of
the land consisted of coarse-textured soils and that 32 percent
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of the land consisted of medium-textured soils. All but one of
the Lesiaks’ fields contained some medium-textured soils. For
coarse-textured soils with less than 3 percent organic matter,
the guardsman Max label suggested an application rate of 2.5
to 3.0 pints per acre. And for medium-textured soils with less
than 3 percent organic matter, the label suggested an applica-
tion rate of 3.0 to 4.0 pints per acre. It is undisputed that CvA
applied guardsman Max at a uniform rate of 4.0 pints per acre
across all of the Lesiaks’ fields.
On June 2, 2005, tom Lesiak called Zmek and advised
Zmek that the Lesiaks’ corn crop was stunted and that he
suspected chemical damage. Zmek came out to inspect the
crops the day after receiving tom Lesiak’s telephone call,
and he initially found nothing wrong. But, after being shown
to a specific area of the field, Zmek admitted to there being
chemical damage, though he did not specifically reference
guardsman Max. After Zmek’s inspection in June, the Lesiaks
continued to notice problems with their crop throughout the
summer and reported those problems to CvA. CvA allegedly
did nothing until October, when the Lesiaks began reporting
their yields to CvA. At that point, CvA inspected the Lesiaks’
fields, but denied any damage resulting from its application of
guardsman Max.
the Lesiaks filed this action against CvA. the Lesiaks
alleged that CvA’s improper application of guardsman Max
caused damage to their corn crop, decreasing their total yield.
the Lesiaks asserted multiple theories of recovery, including,
as relevant to this appeal, negligence, breach of implied war-
ranty of merchantability, and breach of implied warranty of
services. CvA moved for summary judgment, which the district
court granted on both the implied warranty of services and
negligence claims. the court found that Nebraska law did not
recognize the claim of implied warranty of services outside of
the building and construction context. Additionally, the court
found that the Lesiaks’ negligence claim was precluded by the
economic loss doctrine. this left the Lesiaks with only their
claim for breach of implied warranty of merchantability.
Following the Lesiaks’ presentation of their case, CvA
moved for a directed verdict, asserting that the Lesiaks had
106 	283 NeBrASkA repOrtS

failed to prove the measure of the damage, if any, which
resulted from the alleged overapplication of guardsman Max
to their cornfields. the court granted the motion for a directed
verdict, explaining that the evidence was insufficient to allow
the fact finder to determine what damage was attributable to
guardsman Max and what was attributable to a lack of irriga-
tion. the Lesiaks appeal.
II. ASSIgNMeNtS OF errOr
the Lesiaks assign, restated and renumbered, that the dis-
trict court erred in (1) directing a verdict for CvA on the basis
that the Lesiaks’ proof of damages was not sufficiently definite
for submission to the jury, (2) allowing a motion for summary
judgment to be used to dismiss individual theories of relief,
(3) granting partial summary judgment on the Lesiaks’ breach
of implied warranty of services claim, and (4) granting partial
summary judgment on the Lesiaks’ negligence theory based on
the economic loss doctrine.
On cross-appeal, CvA assigns, restated, that the district
court erred in failing to grant CvA summary judgment on all of
the Lesiaks’ claims because the Lesiaks could only speculate as
to the money they saved from not having to dry and transport
crops which were allegedly lost.
III. StANDArD OF revIeW
[1] In reviewing a trial court’s ruling on a motion for
directed verdict, an appellate court must treat the motion as an
admission of the truth of all competent evidence submitted on
behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed
is entitled to have every controverted fact resolved in its favor
and to have the benefit of every inference which can reasonably
be deduced from the evidence.1
[2,3] A court should grant summary judgment when the
pleadings and evidence admitted show that no genuine issue
exists regarding any material fact or the ultimate inferences
1 State of Florida v. Countrywide Truck Ins. Agency, 275 Neb. 842, 749
N.W.2d 894 (2008).
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Cite as 283 Neb. 103

that may be drawn from those facts and that the moving party
is entitled to judgment as a matter of law.2 In reviewing a sum-
mary judgment, we view the evidence in a light most favorable
to the party against whom the judgment is granted and give
such party the benefit of all reasonable inferences deducible
from the evidence.3
Iv. ANALySIS
We first address the Lesiaks’ contention that the district
court erred in directing a verdict in favor of CvA based on the
Lesiaks’ alleged inability to prove their damages. We address
this issue first because the Lesiaks’ other assigned errors are
dependent on the outcome of this one. In other words, if the
Lesiaks are unable to prove damages as a matter of law, then
whether the district court properly granted summary judgment
on the Lesiaks’ various other theories of relief is irrelevant.
1. directed verdict
the Lesiaks assert that the district court erred when, at the
close of the Lesiaks’ case, the court directed a verdict in favor
of CvA. the court determined that the jury, without speculat-
ing, would be unable to apportion the damage allegedly caused
by the overapplication of guardsman Max and damage caused
by a lack of irrigation. Because the Lesiaks presented suffi-
cient evidence to allow a jury to calculate damages to a rea-
sonable degree of certainty and exactness, this assigned error
has merit.
(a) Hahn v. Weber & Sons Co.
In making its ruling, the district court relied upon Hahn
v. Weber & Sons Co.4 In Hahn, a farmer planted soybeans in
two tracts of land lying directly north of, and adjacent to, his
neighbor’s land. the neighbor sprayed his land with herbicide
to control the weeds on his acreage. the farmer claimed that
the neighbor acted negligently and that the herbicide spray
2 Golden v. Union Pacific RR. Co., 282 Neb. 486, 804 N.W.2d 31 (2011).
3 Id.
4 Hahn v. Weber & Sons Co., 223 Neb. 426, 390 N.W.2d 503 (1986).
108 	283 NeBrASkA repOrtS

drifted onto his land and damaged his soybeans. the trial court
found that the spray did drift onto the farmer’s crops, but that
the farmer also failed to irrigate at the proper time, and that the
plants which were irrigated properly produced a normal yield.5
the court found that any attempt to determine what damage to
the field was attributable to the sprayed herbicide, as opposed
to a lack of irrigation, would be “‘conjectural, speculative and
a “guesstimate”’” and dismissed the petition.6
On appeal, we explained that the farmer had the burden of
proving that some or all of the damage was proximately caused
by the neighbor’s negligent act. In explaining the farmer’s bur-
den, we said:
Where the injury is the result of two separate, indepen-
dent causes, and the defendant is responsible for only one
of the causes, the plaintiff must establish that the entire
damage would have occurred from the cause for which
the defendant is liable or establish the amount of damage
directly caused by the defendant’s negligence.7
We concluded that absent any evidence to properly allocate
damages between the herbicide application and the lack of
irrigation, “any attempt to determine what damage was attrib-
utable to vapor drift would be conjectural and speculative.”8 In
essence, then, Hahn sets forth the Lesiaks’ burden of proof in
this case. Hahn stands for the proposition that there must be
some evidence to allow a jury to properly allocate damages
between two independent causes.
[4] But Hahn does not speak to the propriety of a directed
verdict. We have stated that a directed verdict is proper “only
when reasonable minds cannot differ and can draw but one
conclusion from the evidence, that is, when an issue should
be decided as a matter of law.”9 And, as understood from our
5 See id.
6 Id. at 428, 390 N.W.2d at 505.
7 Id. at 429, 390 N.W.2d at 506.
8 Id. at 430, 390 N.W.2d at 506.
9 American Central City v. Joint Antelope Valley Auth., 281 Neb. 742, 747,
807 N.W.2d 170, 177 (2011).
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Cite as 283 Neb. 103

standard of review, we view a directed verdict skeptically,
resolving every controverted fact in favor of the aggrieved
party and giving that party the benefit of every inference rea-
sonably deducible from the evidence.10
Here, while the directed verdict was granted on the basis
of an inability to prove damages, the issues of damages and
causation are intertwined. essentially, CvA argues that as a
matter of law, the Lesiaks were unable to prove what damage,
if any, resulted from the alleged overapplication of guardsman
Max to their cornfields. But, as will be explained more fully
below, the record presents sufficient evidence to allow a jury to
find that guardsman Max injured the Lesiaks’ corn crop. And
the record also presents sufficient evidence to allow a jury to
estimate damages to a reasonable degree of certainty and exact-
ness. thus, the trial court erred in directing a verdict in favor
of CvA.
(b) Could Jury Find that guardsman Max Had
Damaged the Lesiaks’ Corn Crop?
the Lesiaks alleged that CvA applied guardsman Max at
too high a rate, which caused significant damage to their corn
crop. CvA, on the other hand, asserted that other events caused
the damage, including a lack of irrigation and the presence of
weeds in the fields (other than those that were supposed to have
been controlled by guardsman Max). Here, the record presents
sufficient evidence to allow a jury to find that guardsman Max,
as applied, had injured the Lesiaks’ corn crop.
the Lesiaks called Dale Flowerday, an agronomist, as their
expert witness, and his status as an expert is undisputed by the
parties. Flowerday inspected five or six of the Lesiaks’ fields,
relying upon tom Lesiak to show him fields representative of
the entire farming operation, as Flowerday testified was cus-
tomary in his profession because it is the farmer who knows his
or her land best. Flowerday explained that he was able to deter-
mine the cause of the damage from reviewing the crop residue
and root systems following harvest. Flowerday opined that
the improper application of guardsman Max to the Lesiaks’
10 See Countrywide Truck Ins. Agency, supra note 1.
110 	283 NeBrASkA repOrtS

cornfields caused a lower yield at harvest. Flowerday noted
that his opinion applied only to the Lesiaks’ irrigated fields.
And Flowerday also explained that he did not know whether
guardsman Max had injured the areas of the fields containing
medium-textured soils, but could only be certain as to the areas
of the fields containing coarse-textured soils.
CvA asserts that there is no evidence establishing that
guardsman Max caused damage to the Lesiaks’ crops grown
in medium-textured soils, because the 4-pints-per-acre rate was
within the range prescribed by the label for medium-textured
soils. Notably, Flowerday did not rule out guardsman Max as
the cause of the damage to the crops grown in medium-textured
soils. rather, he simply stated that he did not know if it caused
the damage, because it was applied at a rate within that pre-
scribed by the guardsman Max label. Flowerday did explain
that he saw damage throughout the fields, on crops in both
medium- and coarse-textured soils, and that the damage was
simply more extensive with the crops in the coarse-textured
soils. Moreover, in examining the relevant land value sheets
and soils maps, Flowerday determined that a majority of the
Lesiaks’ land consisted of coarse-textured soils—specifically,
68 percent of the soils were coarse textured, and 32 percent
were medium textured. Based on those soil compositions, and
the guardsman Max label instructions, Flowerday opined that
CvA had applied guardsman Max at too high a rate.
thus, in Flowerday’s opinion, all of the fields were coarse
textured for purposes of applying herbicide. the guardsman
Max label explains that “[w]hen use rates are expressed in
ranges, use the lower rates for more coarsely textured soils
lower in organic matter and use the higher rates for more finely
textured soils that are higher in organic matter.” thus, the
instructions contemplated situations where the fields were not
easily classified wholly as coarse or medium textured. And in
those situations, the label directs the applicator to, essentially,
err on the side of caution and apply guardsman Max at the
lower end of the rate range.
In other words, the record contained evidence that despite
the combination of coarse- and medium-textured soils in the
Lesiaks’ fields, CvA should have applied guardsman Max
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conservatively, as if the soil were coarse textured. the record
also contained evidence that the Lesiaks’ crop was damaged.
And the record contains evidence explaining the biological
mechanism by which overapplication of guardsman Max can
cause the kind of damage that was observed in the Lesiaks’
corn. In short, there was evidence from which the jury could
have found that something damaged the Lesiaks’ crop on
coarse- and medium-textured soils, that guardsman Max can
cause that kind of damage, and that guardsman Max was over-
applied to the Lesiaks’ fields. this was sufficient evidence to
allow a jury to find that guardsman Max injured the corn on
both coarse- and medium-textured soils.
(c) Was Jury Capable of Allocating Damages Without
engaging in Speculation or Conjecture?
Flowerday’s opinion was limited to the irrigated fields. Here,
many of the fields contained both irrigated and nonirrigated
portions and there was evidence that a lack of irrigation, among
other things, caused damage to a number of fields. the issue is
whether there is enough evidence in the record to allow a jury
to reasonably apportion damages between each of these inde-
pendent causes of yield loss. there is.
[5-7] We have explained that where a growing crop is
injured but not rendered entirely worthless, the damage to it
may be measured by the difference between the value at matu-
rity of the probable crop, if there had been no injury, and the
value of the actual crop, less the expense of fitting for market
that portion of the probable crop which was prevented from
maturing by the injury.11 While it is the jury’s duty to deter-
mine the amount of damages,12 it is the duty of the trial court to
refrain from submitting the issue of damages to the jury where
the evidence is such that a jury could not determine the issue
without indulging in speculation or conjecture.13 But this duty
11 See, Bristol v. Rasmussen, 249 Neb. 854, 547 N.W.2d 120 (1996); Hopper
v. Elkhorn Valley Drainage District, 108 Neb. 550, 188 N.W. 239 (1922).
12 See Bristol, supra note 11.
13 See Peterson v. North American Plant Breeders, 218 Neb. 258, 354
N.W.2d 625 (1984).
112 	283 NeBrASkA repOrtS

is balanced against the realization that determining the extent
of crop loss, much like lost profits, requires reasonable estima-
tion.14 As a result, damages are not required to be proved with
mathematical certainty, “‘but the evidence must be sufficient
to enable the trier of fact . . . to estimate with a reasonable
degree of certainty and exactness the actual damages. . . .’”15
We have also explained that if there is evidence establishing
that damage occurred, “it is proper to let the jury determine
what the loss probably was from the best evidence the nature
of the case allows.”16 In short, we require enough evidence to
provide a reasonable basis for the jury to estimate the extent of
the damage.
At trial, the Lesiaks introduced exhibit 305, summarizing
their estimated loss. exhibit 305 contained the projected and
actual yields for each field. then, based on those figures, along
with the price of corn and the estimated savings from not hav-
ing to dry and transport a full crop, the Lesiaks estimated their
loss. But the accuracy of exhibit 305 was called into question
during trial. CvA asserts that exhibit 305 was unreliable and
that therefore, a jury could only speculate as to the amount of
damages suffered by the Lesiaks.
Specifically, CvA makes two points. First, the evidence
was in conflict over what reasonable projected yields for each
field would be. Second, CvA points out that the Lesiaks did
not have exact records of each field’s individual crop yield;
instead, the Lesiaks worked from their total yield and used that
number to estimate each field’s yield. In effect, CvA asserts
that without accurate projected yield figures, and because the
Lesiaks did not track each individual field’s actual yield, it
would be impossible for the jury to accurately calculate dam-
ages because of the multitude of other events which caused
crop loss on each field.
14 See, Bristol, supra note 11; Peterson, supra note 13.
15 Peterson, supra note 13, 218 Neb. at 269, 354 N.W.2d at 633, citing
Shotkoski v. Standard Chemical Manuf. Co., 195 Neb. 22, 237 N.W.2d 92
(1975).
16 Gary’s Implement v. Bridgeport Tractor Parts, 281 Neb. 281, 292, 799
N.W.2d 249, 259 (2011).
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But that is not the case. Here, there is sufficient evidence
to allow a jury to reasonably calculate damages. First, there
is sufficient evidence regarding the projected yields. the soil
tests each listed a yield goal ranging from 180 to 200 bushels
per acre (BpA) on each field. tom Lesiak also testified that he
created a “conservative” estimate for each field, projecting an
average yield of approximately 180 BpA. And exhibit 305’s
projected yield figures were based on the alleged promises of
Zmek and the performance of other farmers’ fields in the nearby
area under CvA’s program. the jury could choose which evi-
dence was most credible and work from those figures.
Furthermore, there is sufficient evidence in the record to
establish the actual yields in each field, to a reasonable degree
of certainty and exactness. the names of each field, where each
is located, and the number of irrigated acres may be determined
by cross-referencing exhibit 58 (the names and legal descrip-
tions of each field), exhibit 173 (land value sheets), and exhibit
220 (diagrams of certain irrigation systems). Additionally,
exhibit 93 contains all of the “yield maps” for each field. A
yield map is created by the combine harvester as the crop is
being harvested. A yield map calculates the average BpA based
on the total crop input and the speed at which the combine is
traveling. the yield maps also indicate the total number of har-
vested acres for each field.
At trial, tom Lesiak testified that although the yield maps
are not 100 percent accurate, they were about 90 percent
accurate—certainly accurate enough to be a valuable guide
to farmers analyzing their crop yields. the inaccuracy stems
from the lag which occurs between a change in combine speed
and the subsequent update of the combine’s harvesting moni-
tor, which produces the yield maps. Additionally, there is a
drop in accuracy when the combine is forced to turn around
at the end of rows. this is because the harvest rate calculation
dips as the combine is forced to slow and there is no harvest-
ing occurring.
It is undisputed that testimony adduced at trial indicates
that multiple fields suffered crop loss from sources other
than the alleged overapplication of guardsman Max. But the
record would allow a jury to subtract those damages out of the
114 	283 NeBrASkA repOrtS

calculation. For example, tom Lesiak admitted that one of his
fields, the “Sigea” field, suffered a loss from a lack of irriga-
tion. the Sigea field was center-pivot irrigated, meaning that
a large circular pivot irrigated the majority of the field. thus,
the corners of the field did not receive any irrigation. But,
additionally, the pivot had a few plugged nozzles which caused
a small circle in the interior of the pivot circle to receive an
inadequate amount of water. this resulted in a loss attributed
to a lack of irrigation.
A jury could deduct that loss out without resorting to specu-
lation or conjecture. the Sigea yield map provides extensive
information, including the total number of acres harvested, the
average BpA yield for the entire field, and the number of acres
harvested for each BpA range. For example, the Sigea field
indicates that 156.18 acres were harvested, at an estimated
128.28 BpA. Of those 156.18 acres, 35.9 acres yielded less
than 90 BpA, while 16.4 acres yielded 180 or more BpA. those
35.9 acres correspond to the areas which received inadequate
or no irrigation. Without going into the mathematical specif-
ics, a jury could estimate the Sigea field’s average BpA yield
without those 35.9 nonirrigated acres. In other words, a jury
could estimate the average BpA yield for just the irrigated por-
tions of the field. From there, it is a matter of comparing that
yield to the projected yield and then calculating the estimated
economic loss.
A similar approach could be used for each of the fields
where there were multiple causes of yield loss, regardless of
whether that loss was from a lack of irrigation, sandburs, or
other weeds or pests. granted, the Sigea field is one of the
easier examples, compared to some of the others, but the fact
remains that there is a reasonable basis for the jury to approxi-
mate the damage allegedly caused by guardsman Max. the
law does not require mathematical certainty. Instead, the law
requires a reasonable estimation based on the evidence in the
record and the nature of the case. And the fact that such a
calculation would require some sophistication from a jury, in
that they would have to sift through large amounts of evidence,
does not change that burden. Although the parties could have
presented expert testimony to help the jury in performing that
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Cite as 283 Neb. 103

task, it was not necessary for them to do so in order to avoid
a directed verdict. Our system asks juries to make complex
factual findings in many cases, and that is what the jury would
have been asked to do here. there is evidence in the record
which would allow a jury to find that the overapplication of
guardsman Max damaged the Lesiaks’ fields and also to rea-
sonably estimate the extent of the damage. the trial court erred
in directing a verdict in favor of CvA.
2. summAry Judgment disposition of
theories of reLief
[8] the Lesiaks also assert that the district court erred in
various respects at the summary judgment stage. First, the
Lesiaks assert that the district court improperly considered
CvA’s motion for summary judgment, in essence, because
CvA’s motion sought to strike particular legal theories of relief
rather than claims. But there is no question that the parties may,
in pretrial proceedings, seek to limit the scope of the issues on
which evidence may be adduced and which may be submitted
to the jury. A motion for summary judgment may be used for
that purpose, and our case law is replete with instances where a
motion for summary judgment was considered with regard to a
specific legal theory.17 In short, because a motion for summary
judgment is a proper mechanism to dispose of individual legal
theories, this assigned error has no merit.
3. impLied services WArrAnty
Next, the Lesiaks argue that CvA breached its implied war-
ranty to provide its services in a workmanlike and appropri-
ate manner. the district court found that no such warranty
existed under Nebraska law, except in cases involving building
and construction contracts, and granted summary judgment to
CvA on this issue. the Lesiaks assign this ruling as error. But
because no implied services warranty exists in a contract for
agronomical services or goods under Nebraska law, the district
court’s ruling was correct.
17 See, e.g., Wilke v. Woodhouse Ford, 278 Neb. 800, 774 N.W.2d 370 (2009);
Frerichs v. Nebraska Harvestore Sys., 226 Neb. 220, 410 N.W.2d 487
(1987).
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the Lesiaks’ argument presumes that their contract with
CvA is a services contract. But regardless of whether the con-
tract is for goods or services, the Lesiaks’ claim fails. If the
contract is determined to be a contract for the sale of goods,
then Nebraska’s Uniform Commercial Code controls.18 the
Uniform Commercial Code adopts only two implied warranties
in a sale-of-goods contract: the implied warranty of merchant-
ability19 and the implied warranty of fitness for a particular
purpose.20 And while the Uniform Commercial Code explains
that “other implied warranties may arise from course of deal-
ing or usage of trade,”21 the Lesiaks have offered no evidence
that an implied services warranty arose through either source.
As such, if the contract is considered a contract for the sale
of goods, no services warranty is implied and the Lesiaks’
assigned error lacks merit.
If the contract is determined to be a contract for the provi-
sion of services, then the common law would control. the only
circumstance under which we have found an implied services
warranty in a contract for services is in the context of building
and construction contracts.22
the Lesiaks argue that an implied services warranty should
be found here because CvA was hired to help “build” a corn
crop. But it is a stretch to consider what was done here to be
“building” similar to that in, for example, Moglia v. McNeil
Co.23 It has been explained that the rationale for allowing
the purchaser of new construction to recover on a theory of
breach of an implied warranty is that it may be impossible for
the ordinary consumer to determine the building’s structural
quality, because many of the most important elements of its
construction are hidden from view and are not discoverable
18 See Neb. U.C.C. § 2-102 (reissue 2001).
19 See Neb. U.C.C. § 2-314 (reissue 2001).
20 See Neb. U.C.C. § 2-315 (reissue 2001).
21 See § 2-314(3).
22 See, e.g., Moglia v. McNeil Co., 270 Neb. 241, 700 N.W.2d 608 (2005).
23 Id.
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even by careful inspection.24 the consumer can determine little
about the soundness of the construction but must rely upon the
fact that the vendor-builder holds the structure out to the public
as fit for use and of reasonable quality.25 therefore, the builder
or seller of new construction, not unlike the manufacturer or
merchandiser of goods, makes implied representations, ordinar-
ily indispensable to the sale, that the builder has used reason-
able skill and judgment in constructing the building.26
Obviously, that logic is not applicable to spraying a corn
crop, for several reasons—most notably, a corn crop is not a
finished product capable of having a latent defect at the time
of contracting. And to conclude otherwise would be to effec-
tively eliminate the requirement that negligence be proved and,
instead, impose strict liability for the results of the vendor’s
performance. thus, we conclude that it is both unnecessary
and unwise to expand our application of the implied services
warranty outside of the building and construction context. this
assignment of error lacks merit.
4. economic L oss doctrine
Finally, the Lesiaks assert that the district court erred when
it granted summary judgment on the Lesiaks’ negligence claim.
the court determined that the economic loss doctrine applied
and that the Lesiaks could only proceed under contractual theo-
ries of relief. Because we find the doctrine inapplicable here,
this assignment of error has merit.
(a) Overview
the economic loss doctrine, generally stated, is a “judicially
created doctrine that sets forth the circumstances under which
a tort action is prohibited if the only damages suffered are
24 See, e.g., Dixon v. Mountain City Const. Co., 632 S.W.2d 538 (tenn.
1982); McDonald v. Mianecki, 79 N.J. 275, 398 A.2d 1283 (1979); Pollard
v. Saxe & Yolles Dev. Co., 12 Cal. 3d 374, 525 p.2d 88, 115 Cal. rptr. 648
(1974); Smith v. Old Warson Development Company, 479 S.W.2d 795 (Mo.
1972).
25 See Smith, supra note 24.
26 See Pollard, supra note 24. Accord Dixon, supra note 24.
118 	283 NeBrASkA repOrtS

economic losses.”27 While the doctrine may be easy to state, it
is difficult to apply. Indeed, it has been described as a “confus-
ing morass,”28 and has been compared to the “ever-expanding,
all-consuming alien life form portrayed in the 1958 B-movie
classic The Blob”29 that could “consume much of tort law if
left unchecked.”30 We confront the doctrine’s application and
scope in this case.
[9] the economic loss doctrine originated in the context of
products liability actions. the case attributed with the creation
of the doctrine, and its modern application in courts today, is
Seely v. White Motor Co.31 In Seely, the California Supreme
Court explained:
A consumer should not be charged at the will of the manu-
facturer with bearing the risk of physical injury when he
buys a product on the market. He can, however, be fairly
charged with the risk that the product will not match his
economic expectations unless the manufacturer agrees
that it will. even in actions for negligence, a manufactur-
er’s liability is limited to damages for physical injuries
and there is no recovery for economic loss alone.32
the U.S. Supreme Court adopted Seely’s reasoning in East
River S.S. Corp. v. Transamerica Delaval.33 East River S.S.
Corp. was an admiralty case which applied the doctrine in a
products liability context. East River S.S. Corp. stands for the
proposition that where a defective product causes economic
loss and is unaccompanied by personal injury or damage to
27 Indemnity Ins. Co. v. American Aviation, 891 So. 2d 532, 536 (Fla. 2004).
28 See id. at 544 (Cantero, J., concurring; Wells, J., joins).
29 Grams v. Milk Products, Inc., 283 Wis. 2d 511, 539, 699 N.W.2d 167, 180
(2005) (Abrahamson, C.J., dissenting; Butler, J., joins).
30 Id. at 539, 699 N.W.2d at 181.
31 Seely v. White Motor Co., 63 Cal. 2d 9, 403 p.2d 145, 45 Cal. rptr. 17
(1965).
32 Id. at 18, 403 p.2d at 151, 45 Cal. rptr. at 23.
33 East River S.S. Corp. v. Transamerica Delaval, 476 U.S. 858, 106 S. Ct.
2295, 90 L. ed. 2d 865 (1986).
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other property, the aggrieved party’s remedy lies in contract
law rather than tort law.34
We have adopted the doctrine, as described in East River S.S.
Corp., in Nebraska.35 But the exact contours of the doctrine,
particularly outside of the products liability context, have not
been addressed. each of our cases addressing the doctrine has
involved a defective product.36 And while the doctrine origi-
nated in the context of defective products, the doctrine’s appli-
cation has been expanding.37 We take this opportunity to clarify
the doctrine’s application and scope in Nebraska.
(b) Analysis
[10,11] Here, we are presented with a situation where the
product, guardsman Max, was not alleged to be defective—
instead, the Lesiaks claim the product was negligently applied,
resulting in damage to their corn crop. After reviewing our
own case law, the case law from other jurisdictions, and the
scholarly work done on the subject, we hold that the economic
loss doctrine precludes tort remedies only where the damages
caused were limited to economic losses and where either (1) a
defective product caused the damage or (2) the duty which was
allegedly breached arose solely from the contractual relation-
ship between the parties. And economic losses are defined as
commercial losses, unaccompanied by personal injury or other
property damage.38
34 See id.
35 See, Dobrovolny v. Ford Motor Co., 281 Neb. 86, 793 N.W.2d 445 (2011);
National Crane Corp. v. Ohio Steel Tube Co., 213 Neb. 782, 332 N.W.2d
39 (1983).
36 See, Dobrovolny, supra note 35; Hilt Truck Line v. Pullman, Inc., 222
Neb. 65, 382 N.W.2d 310 (1986); National Crane Corp., supra note 35;
Hawkins Constr. Co. v. Matthews Co., Inc., 190 Neb. 546, 209 N.W.2d
643 (1973), disapproved on other grounds, National Crane Corp., supra
note 35.
37 See, e.g., Neibarger v Universal Cooperatives, 439 Mich. 512, 486 N.W.2d
612 (1992).
38 See, Giles v. General Motors Acceptance Corp., 494 F.3d 865 (9th Cir.
2007); Miller v. U.S. Steel Corp., 902 F.2d 573 (7th Cir. 1990).
120 	283 NeBrASkA repOrtS

Multiple rationales have been given to support the doctrine’s
existence. But the primary rationale, and the one that we find
most compelling, is to maintain the line of demarcation between
tort law and contract law.39 In other words, “‘[t]he underlying
purpose of the economic loss rule is to preserve the distinction
between contract and tort theories in circumstances where both
theories could apply.’”40 the concern is that if tort remedies
were available where the losses suffered were only economic,
then private ordering (contract law) would be less effective. If
a party could simply avoid its contractual bargain by suing in
tort, which often offers more generous terms of recovery, then
the effectiveness of contract law would be reduced. Or, in the
words of the U.S. Supreme Court, the doctrine exists to prevent
contract law from drowning in a “sea of tort.”41
But the opposite must also be true, and the same type of
concern must also exist for tort law. While the doctrine has its
place in the law of damages, it should not be interpreted so
broadly as to undermine tort law and preclude tort remedies in
situations which, historically, have presented viable tort cases.42
that is to say, the doctrine should not be expanded to allow
traditional tort remedies to drown in a sea of contract.
to that end, we are expressly limiting the doctrine’s applica-
tion and take a position similar to that espoused by the Supreme
Court of Florida.43 First, we reaffirm the doctrine’s continued
application in the products liability context. As applied in that
context, the doctrine requires that where a defective product
causes harm only to itself, unaccompanied by either personal
injury or damage to other property, contract law provides the
exclusive remedy to the plaintiff.44 the reasoning for this prop-
osition is strong: Where the damage done is only to the product
itself, the buyer has experienced only a loss of the benefit of its
39 See vincent r. Johnson, The Boundary-Line Function of the Economic
Loss Rule, 66 Wash. & Lee L. rev. 523 (2009).
40 Id. at 546.
41 East River S.S. Corp., supra note 33, 476 U.S. at 866.
42 See Moransais v. Heathman, 744 So. 2d 973 (Fla. 1999).
43 See Indemnity Ins. Co., supra note 27.
44 See East River S.S. Corp., supra note 33.
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bargain, which is the essence of a warranty action.45 We have
recognized this reasoning in our case law.46
Second, the doctrine also applies where the alleged breach is
only of a contractual duty, and no independent tort duty exists.
Again, restated, the purpose of the doctrine is to preserve the
distinction between tort law and contract law. Furtherance
of that purpose requires that when the alleged breach is of a
purely contractual duty—a duty which arises only because the
parties entered into a contract—only contractual remedies are
available. this is a commonsense conclusion. If the only duty
breached is a contractual one, then only contractual remedies
should be available. thus, the doctrine serves to “weed[] out
cases involving nothing more than an allegedly negligent fail-
ure to perform a purely contractual duty—a duty that would
not otherwise exist.”47 Based on the doctrine’s primary purpose
of maintaining the boundaries of tort law and contract law, it is
these cases where the doctrine most logically applies, because
the plaintiff is suing for a breach of a contractual duty which
would not have existed but for the contractual relationship.48
this should be brought as a breach of contract action, and not
a tort claim.49
We realize that this conclusion is somewhat at odds with past
statements in some of our case law. Under Nebraska law, with
each contract comes an accompanying duty “‘to perform with
care, skill, reasonable expediency, and faithfulness the thing
agreed to be done.’”50 We have previously stated that a viola-
tion of that duty may give rise to a breach of contract action or
a tort action for negligent performance of the contract.51
45 See id.
46 See Dobrovolny, supra note 35.
47 Johnson, supra note 39 at 567.
48 See id.
49 See id.
50 Schwarz v. Platte Valley Exterminating, 258 Neb. 841, 850, 606 N.W.2d
85, 91 (2000).
51 See, id.; Lincoln Grain v. Coopers & Lybrand, 216 Neb. 433, 345 N.W.2d
300 (1984).
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[12] We qualify that statement now: Where only economic
loss is suffered and the alleged breach is of only a contractual
duty (such as the duty stated above), then the action should
be in contract rather than in tort. In other words, the doctrine
would apply to bar a tort action for the negligent performance
of a contract when only economic losses were incurred. We
also note that in each case where we have allowed a tort
theory to proceed for breach of the above contractual duty, the
outcome would remain the same under the standard we adopt
today. that is to say, the doctrine would not bar tort theories
in those cases, because either (1) the damages alleged were not
solely economic losses or (2) there existed an independent tort
duty alleged to be breached, which was separate and distinct
from the above-stated contractual duty.52
In sum, we conclude that the primary purpose of the eco-
nomic loss doctrine is to maintain the separateness of tort law
and contract law. generally speaking, the doctrine limits a
party’s ability to recover for economic losses (or commercial
losses), unaccompanied by personal injury or damage to other
property, allowing recovery only under contract law. But we
expressly restrict the doctrine’s application to where economic
losses are (1) caused by a defective product or (2) caused by an
alleged breach of a contractual duty, where no tort duty exists
independent of the contract itself.
(c) Application
the question still remains whether the doctrine bars the
Lesiaks’ negligence claims here. It does not. It is true that
the alleged breach was of a contractual duty which would not
52 See, Thomas v. Countryside of Hastings, 246 Neb. 907, 524 N.W.2d 311
(1994) (negligent installation of furnace damaged home and caused carbon
monoxide injuries to residents); Getzschman v. Miller Chemical Co., 232
Neb. 885, 443 N.W.2d 260 (1989) (action for professional negligence
and breach of fiduciary duties); Schuster v. Baumfalk, 229 Neb. 785, 429
N.W.2d 339 (1988) (negligent repair of farm equipment damaged other
buildings and equipment); Lincoln Grain, supra note 51 (action for profes-
sional negligence); Driekosen v. Black, Sivalls & Bryson, 158 Neb. 531,
64 N.W.2d 88 (1954) (negligent installation of propane system resulted in
destruction of residence).
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have existed but for the creation of the contractual relation-
ship between the Lesiaks and CvA. But the damage allegedly
caused by the breach was not purely economic loss; rather,
CvA’s actions allegedly caused damage to the Lesiaks’ corn,
which qualifies as “other property”—that is, property other
than the property that was sold pursuant to the contract. thus,
this case is removed from the doctrine’s reach.
CvA argues, however, that the doctrine should still apply to
bar the Lesiaks’ claim because their claim involves only their
disappointed commercial expectations and that as a result, con-
tract law should control. this “‘disappointed expectations’”
test has been adopted by some courts.53 In essence, the test
stands for the proposition that “whether particular damage
qualifies as damage to ‘other property’ turns on the parties’
expectations of the function of the bargained-for product.”54
In Grams v. Milk Products, Inc.,55 the Wisconsin Supreme
Court reasoned that a commercial buyer should anticipate that
a product could fail or disappoint in its performance and that
the responsibility for protecting itself against economic loss
(i.e., through a warranty) falls on the buyer.56 Failure to do so,
and regretting it later, is not grounds for allowing pursuit of a
tort remedy when the issue could have, or should have, been
a part of the bargaining process and resulting contract.57 thus,
the Grams court held that “if claimed damages are the result of
disappointed expectations of a bargained-for product’s perform-
ance, the economic loss doctrine applies to bar the plaintiff’s
tort claims and the plaintiff must rely upon contractual rem-
edies alone.”58
But we are not persuaded by the Grams court’s reasoning,
and we decline to adopt it here. Adoption of the “disappointed
53 ralph C. Anzivino, The Disappointed Expectations Test and the Economic
Loss Doctrine, 92 Marq. L. rev. 749, 753 n.24 (2009) (collecting cases).
54 Grams, supra note 29, 283 Wis. 2d at 530, 699 N.W.2d at 176.
55 See Grams, supra note 29.
56 See id.
57 See id.
58 Id., 283 Wis. 2d at 516, 699 N.W.2d at 169.
124 	283 NeBrASkA repOrtS

expectations” test would virtually destroy the “other property”
exception espoused by the U.S. Supreme Court and adopted by
this court in Dobrovolny v. Ford Motor Co.,59 because almost
nothing would qualify as “other property” under the “disap-
pointed expectations” test. this is because the “disappointed
expectations” test precludes tort remedies whenever the pur-
chaser should have anticipated the occurrence of the damage at
issue—in essence, whenever the occurrence of the damage was
reasonably foreseeable.60 thus, under this test, if “other prop-
erty” damage occurs, but it was foreseeable at the time of con-
tracting, then all tort theories would be precluded. therefore,
the only circumstance in which tort theories would not be
precluded would be when the damages were not foreseeable.
But, of course, then a plaintiff would likely have no remedy
in tort either.61 In effect then, the “disappointed expectations”
test eliminates tort remedies for damage to “other property,”
but that type of damage has traditionally been recoverable
in tort.62
As noted by one author, the “disappointed expectations” test
seems to create a presumption that by entering into a contract,
a party’s exclusive remedy for foreseeable harm (traditionally
the province of tort law) is found only through contractual
protection.63 this might make sense if the parties did in fact
bargain over the possible occurrence of damage, because then a
court would be deferring to the parties’ intentions as expressed
through their contract. But where the damages were never bar-
gained for and are not expressly dealt with in the contract, it
makes no sense to preclude a party’s traditional tort remedies.
“In other words, if a party to a contract has not relinquished
independent tort rights through private ordering, it is unfair to
say that those independent tort rights have been lost because
59 Dobrovolny, supra note 35.
60 See, Grams, supra note 29; Foremost Farms USA Co-op v. Perf. Process,
297 Wis. 2d 724, 726 N.W.2d 289 (Wis. App. 2006).
61 See Anzivino, supra note 53.
62 See East River S.S. Corp., supra note 33.
63 See Johnson, supra note 39.
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they might have been bargained away.”64 In effect, this would
be a substitution of contract law for tort law and would go
well beyond the boundary-line function of the economic loss
doctrine. We instead adhere to the underlying purpose of the
economic loss rule.
Furthermore, the “disappointed expectations” test is not
in keeping with U.S. Supreme Court precedent. the Court
addressed the scope of the “other property” exception in
Saratoga Fishing Co. v. J. M. Martinac & Co.65 In Saratoga
Fishing Co., a defective hydraulic system was installed in a
fishing boat. the initial user of the boat added fishing equip-
ment to the boat, including a skiff, seine net, and various
other spare parts, and then sold the boat to a second user. the
hydraulic system then malfunctioned, causing a fire which
destroyed the boat and the extra equipment. the issue was
whether the extra equipment constituted “other property.” the
Court determined that the extra equipment was “other prop-
erty” and that the plaintiff was able to pursue remedies in tort.
the Court reasoned that while parties could theoretically have
included a term in the contract which would have dealt with
the occurrence of the damage in that case, whether a hypotheti-
cal contractual remedy was available was irrelevant. the Court
explained that “[n]o court has thought that the mere possibility
of such a contract term precluded tort recovery for damage to
. . . other property.”66
the “disappointed expectations” test does just that—it pre-
cludes tort recovery based on the mere possibility that the
parties could have included a contract term dealing with the
occurrence of the damage at issue. this reasoning was rejected
by the U.S. Supreme Court, and we likewise reject it here. As
a result, the Lesiaks’ negligence claim is not barred by the
economic loss doctrine, because the Lesiaks assert that CvA’s
conduct harmed their corn crop, which is considered “other
64 Id. at 578-79 (emphasis supplied).
65 Saratoga Fishing Co. v. J. M. Martinac & Co., 520 U.S. 875, 117 S. Ct.
1783, 138 L. ed. 2d 76 (1997).
66 Id., 520 U.S. at 882 (emphasis supplied).
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property.” therefore, the district court erred in granting sum-
mary judgment to CvA on this issue.
5. cvA’s cross -A ppeAL
On cross-appeal, CvA asserts that the Lesiaks were unable
to prove the amount of money they saved from not having to
dry and transport the corn that they allegedly lost; in essence,
CvA claims that the Lesiaks could only speculate as to how
much money they saved from having less corn to dry and
transport. therefore, CvA asserts that the district court erred
in denying CvA summary judgment. But because the Lesiaks’
estimation of per-bushel savings rests on competent evidence,
this assignment of error is without merit.
[13] We have held that the denial of a summary judgment
motion is neither appealable nor reviewable.67 In Moyer v.
Nebraska City Airport Auth.,68 we explained that whether a
motion for summary judgment should have been granted gener-
ally becomes moot after trial. this is because the overruling of
such a motion does not decide any issue, but merely indicates
that the trial court was not convinced that the moving party was
entitled to judgment as a matter of law. And we explained that
“‘[a]fter trial, the merits should be judged in relation to the
fully developed record, not whether a different judgment may
have been warranted on the record at summary judgment.’”69
thus, we do not consider whether the district court erred in
denying CvA summary judgment on this issue. Instead, this
claimed error falls within CvA’s general argument that the
Lesiaks were unable to prove their damages with sufficient
specificity. But the record reveals sufficient evidence to support
the Lesiaks’ per-bushel savings estimate.
Over objection, tom Lesiak explained that the Lesiaks saved
approximately $0.02 per bushel in drying costs and $0.10 per
bushel in transportation costs. Adequate foundation was sup-
plied for each figure. He explained that when a farmer deposits
67 See, e.g., Moyer v. Nebraska City Airport Auth., 265 Neb. 201, 655 N.W.2d
855 (2003).
68 Id.
69 Id. at 208, 655 N.W.2d at 862.
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his crop in a grain elevator, the farmer is charged a certain
amount of money based on the moisture remaining in the crop.
tom Lesiak knew the grain elevators’ moisture rates in 2005
and knew the moisture levels in his corn. From those figures,
he was able to approximate the amount of money saved per
bushel for drying costs. With regard to the transportation costs,
he explained that he was familiar with what people were charg-
ing to transport crops in 2005. transportation costs were an
expense that the Lesiaks incurred every year, including in 2005,
so they knew what had been spent to transport their actual
yield. Based on this information, he was able to estimate how
much money was saved from not having to haul the lost yield.
this information forms a reasonable basis for the jury to cal-
culate any savings obtained by the Lesiaks in not having to dry
and transport the allegedly lost yield. Further specifics, such as
fuel costs or machinery use-depreciation costs, are not neces-
sary.70 therefore, CvA’s cross-appeal is without merit.
v. CONCLUSION
We determine that the district court erred in granting a
directed verdict in favor of CvA. We also find that the district
court erred in granting summary judgment on the Lesiaks’
negligence claim. the Lesiaks’ other assigned errors, however,
lack merit, as does CvA’s assigned error on cross-appeal. the
judgment is affirmed in part, and in part reversed and remanded
for a new trial consistent with this opinion.
A ffirmed in pArt, And in pArt reversed
And remAnded for A neW triAL.
Wright, J., not participating in the decision.
70 See Peterson, supra note 13.
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