Dobrovolny v. Ford Motor Co.

standards which protect an individual’s constitutionally pro-
tected liberty interest. It does not violate the subject’s due
process rights.
CONCLUSION
The DDCCA is constitutional, and the decision of the dis-
trict court is affirmed.
A ffirmed.
dAvid dobrovolny, AppellAnt, v.
ford motor C ompAny, Appellee .
793 N.W.2d 445
Filed February 4, 2011. 	No. S-09-1118.
1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court reviews a
district court’s grant of a motion to dismiss de novo, accepting all the allegations
in the complaint as true and drawing all reasonable inferences in favor of the
nonmoving party.
2. Products Liability: Torts: Negligence: Strict Liability: Damages. The pur-
chaser of a product pursuant to contract cannot recover economic losses from
the seller manufacturer on claims in tort based on negligent manufacture or strict
liability in the absence of physical harm to persons or property caused by the
defective product.
3. Products Liability: Contracts: Damages. Whether the damage occurs gradually
over time, or through an abrupt, accident-like event, a purchaser is confined to
recovery in contract if the loss is purely economic.
Petition for further review from the Court of Appeals, irwin,
SieverS, and CArlSon, Judges, on appeal thereto from the
District Court for Brown County, mArk d. koziSek, Judge.
Judgment of Court of Appeals reversed, and cause remanded
with directions.
Thomas J. Walsh, Jr., of Walsh Law, P.C., for appellant.
John A. Svoboda, of Gross & Welch, P.C., L.L.O., for
appellee.
H eAviCAn, 	C.J., 	wrigHt, 	C onnolly, 	gerrArd, 	StepHAn,
mCC ormACk, and miller-lermAn, JJ.
86 	281 NeBrASkA rePOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:45 AM CST

H eAviCAn, C.J.
INTrODUCTION
Ford Motor Company (Ford) filed a petition for further
review in response to the decision of the Nebraska Court of
Appeals. The Court of Appeals reversed the decision of the
Brown County District Court granting Ford’s motion to dis-
miss. We granted Ford’s petition for further review and reverse
the decision of the Court of Appeals.
FACTS
David 	Dobrovolny 	purchased 	his 	2005 	Ford 	F-350
pickup truck on February 28, 2005. The truck caught fire
in Dobrovolny’s driveway on April 16, 2006. No one was
injured, and no property other than the truck was damaged,
but the truck was completely destroyed. Dobrovolny did not
file suit until May 20, 2009. Dobrovolny alleged negligence,
breach of the warranty of merchantability, and strict liability
on the part of Ford. Dobrovolny sought to recover the cost of
the truck. Ford filed a motion to dismiss, which the district
court granted.
The district court found that National Crane Corp. v. Ohio
Steel Tube Co.1 prohibited Dobrovolny from recovering on
the negligence and strict liability claims, because Dobrovolny
did not allege any damage other than that to the truck. Under
National Crane Corp., the economic loss doctrine provides
that a plaintiff cannot recover under strict liability if the only
damages claimed are for “‘“inadequate value, costs of repair
and replacement . . . or consequent loss of profits—without
any claim of personal injury or damage to other property . .
. .”’”2 The district court also found that Neb. U.C.C. § 2-725
(reissue 2001) provides that any breach of contract claim must
be commenced within 4 years after the cause of action accrues,
which would be at the time of purchase. Dobrovolny would
have had to pursue a breach of contract claim prior to February
28, 2009.
1 National Crane Corp. v. Ohio Steel Tube Co., 213 Neb. 782, 332 N.W.2d
39 (1983).
2 Id. at 786, 332 N.W.2d at 42.
DOBrOvOLNy v. FOrD MOTOr CO. 	87
Cite as 281 Neb. 86

Dobrovolny appealed, and the Court of Appeals reversed
the decision of the district court.3 The Court of Appeals dis-
tinguished Dobrovolny’s case from that in National Crane
Corp. and Hilt Truck Line v. Pullman, Inc.4 Citing Arabian
Agri. Servs. Co. v. Chief Indus., Inc.,5 the Court of Appeals
determined that the failure and the “sudden, violent event”6
could be one and the same and that Dobrovolny had presented
enough evidence of a sudden, violent event to overcome the
motion to dismiss. Ford petitioned for further review, alleging
that the Court of Appeals had ignored standing Nebraska law.
We granted Ford’s petition and now reverse the decision of the
Court of Appeals.
ASSIGNMeNT OF errOr
Ford assigns that the Court of Appeals erred when it held
that the economic loss doctrine does not apply where a prod-
uct self-destructs without causing damage to persons or other
property.
STANDArD OF revIeW
[1] An appellate court reviews a district court’s grant of
a motion to dismiss de novo, accepting all the allegations in
the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party.7
ANALySIS
The sole issue in this case is whether the economic loss
doctrine applies when a product self-destructs without caus-
ing damage to persons or other property. In determining that
the doctrine did not apply, the Court of Appeals distinguished
3 See Dobrovolny v. Ford Motor Co., 18 Neb. App. 483, 785 N.W.2d 858
(2010).
4 Hilt Truck Line v. Pullman, Inc., 222 Neb. 65, 382 N.W.2d 310 (1986).
5 Arabian Agri. Servs. Co. v. Chief Indus., Inc., 309 F.3d 479 (8th Cir.
2002).
6 Dobrovolny, supra note 3, 18 Neb. App. at 487, 785 N.W.2d at 858.
7 McCully, Inc. v. Baccaro Ranch, 279 Neb. 443, 778 N.W.2d 115 (2010).
88 	281 NeBrASkA rePOrTS

National Crane Corp. and Hilt Truck Line and applied the rea-
soning in Arabian Agri. Servs. Co.8
In National Crane Corp., the plaintiff purchased steel tubing
from the defendant for use in the tilt cylinder mechanism of
1,232 cranes. The steel tubing eventually failed, and the plain-
tiff had to test and replace all potentially dangerous cylinders.
The plaintiff filed suit to recover the economic losses associ-
ated with testing and replacing the steel tubing. We noted that
“the purchaser of a product pursuant to contract cannot recover
economic losses from the manufacturer under a claim of strict
liability.”9 We went on to state:
A majority of courts that have considered the applica-
bility of strict liability to recover damages to the defec-
tive product itself have permitted use of the doctrine, at
least where the damage occurred as a result of a sudden,
violent event and not as a result of an inherent defect that
reduced the property’s value without inflicting physical
harm to the product. . . . In essence, this court has reached
the same result.10
[2] In National Crane Corp., we determined that the only
damages the plaintiff sought to recover were those incurred by
replacing the defective product. We held that “the purchaser
of a product pursuant to contract cannot recover economic
losses from the seller manufacturer on claims in tort based
on negligent manufacture or strict liability in the absence of
physical harm to persons or property caused by the defec-
tive product.”11
Hilt Truck Line presented a similar issue. In that case, the
plaintiff contracted with the defendant for the construction and
purchase of 30 trailers. After the trailers were put into service,
problems with the side posts were noted and the trailers had to
be repaired. The plaintiff sued to recover those costs, but its
8 Arabian Agri. Servs. Co., supra note 5.
9 National Crane Corp., supra note 1, 213 Neb. at 787, 332 N.W.2d at 43.
10 Id. at 789, 332 N.W.2d at 42.
11 Id. at 790, 332 N.W.2d at 44.
DOBrOvOLNy v. FOrD MOTOr CO. 	89
Cite as 281 Neb. 86

case was deemed barred by the economic loss doctrine.12 We
stated that “in order to recover in strict liability for the cost
of repairs to the product, there must be proof that a sudden,
violent event occurred which aggravated the inherent defect
or caused it to manifest itself.”13 Because the record showed
no evidence of a sudden, violent event, the plaintiff could not
recover in strict liability.
In the present case, the Court of Appeals distinguished
Dobrovolny’s claim from National Crane Corp. and Hilt Truck
Line by finding that the fire which destroyed his truck was
a sudden, violent event. Ford argued that a sudden, violent
event must cause the failure; the failure itself cannot be the
sudden, violent event. The Court of Appeals rejected that argu-
ment, relying on the reasoning in Arabian Agri. Servs. Co. In
that case, the defendant built grain silos for the plaintiff. The
silos collapsed, but no other property or persons were harmed.
The plaintiff sued for damages in the federal district court
for Nebraska under a variety of theories, including that of
strict liability.
The defendant in Arabian Agri. Servs. Co. contended that
under Nebraska law, a sudden, violent event must cause the
failure, and that the failure itself cannot be considered the sud-
den, violent event. The eighth Circuit rejected that argument,
quoting from our opinion in National Crane Corp.:
According to the Nebraska Supreme Court, it has, in
essence, followed the “majority of courts that have con-
sidered the applicability of strict liability to recover dam-
ages to the defective product itself [and] have permitted
use of the doctrine, at least where the damage occurred
as a result of a sudden, violent event and not as a result
of an inherent defect that reduced the property’s value
without inflicting physical harm to the product.” . . .
Here, [the] damages were not the result of a defect that
merely reduced the value of the silos. Instead, the col-
lapse of the silos could certainly be characterized as a
12 See Hilt Truck Line, supra note 4.
13 Id. at 67, 382 N.W.2d at 312.
90 	281 NeBrASkA rePOrTS

“sudden, violent event” that inflicted “physical harm to
the product.”14
The Court of Appeals accepted the reasoning in Arabian Agri.
Servs. Co. and found that Dobrovolny’s situation closely mir-
rored the collapse of the silos. Assuming that the allegations
in Dobrovolny’s complaint were true, his truck spontaneously
caught fire and was completely destroyed. The Court of Appeals
found that the spontaneous destruction could be considered a
sudden, violent act and that Dobrovolny could recover under a
theory of strict liability.
Ford, however, argues that the eighth Circuit and the Court
of Appeals were in error. Ford points out that we relied heav-
ily on the restatement (Second) of Torts in National Crane
Corp., and in its petition for further review, Ford quotes the
restatement (Third) of Torts:
A strong majority of courts have taken the position that
the key to whether products liability law or commercial
law principles should govern depends on the nature of the
loss suffered by the plaintiff. If the plaintiff has suffered
loss because the defective product simply malfunctioned
or self-destructed, the loss is deemed economic loss within
the purview of the Uniform Commercial Code . . . .15
Ford also points to East River S.S. Corp. v. Transamerica
Delaval16 as a leading case addressing the line between con-
tract and tort law as it concerns products liability. In East River
S.S. Corp., the U.S. Supreme Court applied products liability
to a case in admiralty. It portrayed the problem as whether “a
commercial product injuring itself is the kind of harm against
which public policy requires manufacturers to protect, inde-
pendent of any contractual obligation.”17 The Supreme Court
characterized the majority of courts as holding that strict liabil-
ity cannot be imposed for damage to the product alone, while
14 Arabian Agri. Servs. Co., supra note 5, 309 F.3d at 484.
15 restatement (Third) of Torts: Products Liability § 21, reporter’s Note
comment d. (1998).
16 East River S.S. Corp. v. Transamerica Delaval, 476 U.S. 858, 106 S. Ct.
2295, 90 L. ed. 2d 865 (1986).
17 Id., 476 U.S. at 866.
DOBrOvOLNy v. FOrD MOTOr CO. 	91
Cite as 281 Neb. 86

the minority imposed liability.18 The Supreme Court went on
to state, “When a product injures only itself the reasons for
imposing a tort duty are weak and those for leaving the party
to its contractual remedies are strong.”19
The Wyoming Supreme Court, following the decision in
East River S.S. Corp., expanded upon that reasoning:
This rule is founded on solid policy justifications. The
concern of tort law in the area of products liability has
focused on the need to protect the purchaser or consumer,
who often is not in a position to withstand the financial
impact if he, or his property, is damaged by a defective
product. The social need to spread the resulting, and
often catastrophic, losses across a spectrum of consumers
thus increasing the cost of the product is, however, sub-
stantially lessened when the injury is only to the product
itself. Furthermore, this kind of loss relates essentially
to the purchaser’s benefit of the bargain which has been
made between himself and the seller. The authorities rec-
ognize that the law of contracts is far better suited to deal
with the dissatisfaction on the part of a purchaser under
such circumstances.20
We find this reasoning to be both persuasive and consistent
with our prior decisions in National Crane Corp. and Hilt
Truck Line. As other courts have noted, insurance may be
purchased to cover damage or destruction of a product should
a consumer wish additional protection outside breach of war-
ranty claims.21
[3] Furthermore, we find that the usage of the term “sudden,
violent event” is unnecessarily confusing. We adopt the rule
that disallows recovery in tort when the damages are to the
product alone, following both the restatement (Third) of Torts
and the U.S. Supreme Court’s decision in East River S.S. Corp.
As the Supreme Court noted in East River S.S. Corp.:
18 East River S.S. Corp., supra note 16.
19 Id., 476 U.S. at 871.
20 Continental Ins. v. Page Engineering Co., 783 P.2d 641, 647 (Wyo.
1989).
21 See id.
92 	281 NeBrASkA rePOrTS

even when the harm to the product itself occurs through
an abrupt, accident-like event, the resulting loss due to
repair costs, decreased value, and lost profits is essentially
the failure of the purchaser to receive the benefit of its bar-
gain—traditionally the core concern of contract law. . . .
. . . .
. . . The maintenance of product value and quality is pre-
cisely the purpose of express and implied warranties. . . .
Contract law, and the law of warranty in particular,
is well suited to commercial controversies of the sort
involved in this case because the parties may set the terms
of their own agreements.22
In this case, the only damage done was to Dobrovolny’s truck,
and therefore, the economic loss doctrine bars recovery under
products liability law.
CONCLUSION
We find that the economic loss doctrine prevents recovery
under a products liability theory where the damage is solely to
the product. We therefore reverse the decision of the Court of
Appeals and remand the matter with directions to reinstate the
decision of the district court.
reverSed And remAnded witH direCtionS.
22 East River S.S. Corp., supra note 16, 476 U.S. at 870-73.
CArgill meAt SolutionS C orporAtion, Appellee , v.
C olfAx C ounty boArd of equAlizAtion, AppellAnt.
798 N.W.2d 823
Filed February 4, 2011. 	No. S-09-1252.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
2. Statutes. Statutory interpretation is a question of law.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, an appellate court must determine whether it has jurisdiction.
4. Statutes: Legislature: Intent: Appeal and Error. In discerning the meaning
of a statute, the Supreme Court gives effect to the purpose and intent of the
CArGILL MeAT SOLUTIONS v. COLFAx CTy. BD. OF eqUAL. 	93
Cite as 281 Neb. 93