February 07, 2013 – Kenneth Badilla v. Wal-Mart Stores East, Inc. d/b/a Wal-Mart #850, Wal-Mart Stores East, LP and Mel Dissassa, No. 31,162

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: February 7, 2013

NO. 31,162

KENNETH BADILLA,
Plaintiff-A ppellant,
V.

WAL-MART STORES EAST, INC., d/b/a
WAL-MART #850, WAL-MART STORES
EAST, LP, and MEL DISSASSA,

Defendants-A ppellees.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
C. Shannon Bacon, District Judge

Garcia Law Firm
Narciso Garcia, Jr.
Albuquerque, NM

for Appellant

Rodey, Dickason, Sloan, Akin & Robb, P.A.
Jeffrey M. Croasdell
Patrick M. Shay

Albuquerque, NM

for Appellees

OPINION
KENNEDY, Chief Judge.
{1} 	This case requires us to determine whether a complaint based solely on the
Uniform Commercial Code’s (UCC) provisions for breach of warranty, but seeking
personal injury damages, is a claim under the UCC or a tort claim for personal injury.
The determination affects which statute of limitation applies and, thus, whether the
claim was properly dismissed as barred under the three-year limit on personal injury
actions. 	We hold that the three-year personal injury statute of limitation applies
because the essence of the claim is for personal injury, even though it is presented as
a breach of warranty. 	Such a determination is in keeping with New Mexico’s
historical distinction between tort and contract claims based on the nature of the
claimant’s injury and the primacy of our tort statute of limitation in the absence of a
more specific statute. Because the statute of limitation issue is dispositive, we need
not address the merits of the claim under contract law. We affirm the district court’s
dismissal of the case as time barred.
I. 	BACKGROUND
{2} 	Plaintiff Kenneth Badilla worked as a tree trimmer. He bought a pair of work
boots at Wal-Mart on October 19, 2003. The boots’ label stated “IRON TOUGH[,
r]ugged [l]eather [b]oots” that “[m]eets or exceeds ASTM F 2413-05 standards,”

129 C.F.R. § 1910.136 (2009) (outlining what footwear employers must ensure
employees use under the Occupational Safety and Health Administration, which
requires protection against falling or rolling objects, objects piercing the sole, and
when an employee’s feet are exposed to electrical wires).
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which provides for specification for performance requirements for foot protection.1
Badilla wore the boots between eight and twelve hours per day, six days a week, for
the next nine months, between 1871 and 2805 hours. He stated that as “the boots wear
down[,] the yellow rubber piece tends to unglue itself and roll up as you are walking,
making it very dangerous when working.” 	Badilla neither attempted to return the
boots nor obtain a refund. He also stated that he was unaware of any defect in the
boots that made them unsafe.
{3} 	On July 28, 2004, Badilla tripped while lifting a large log. He could not get out
of bed the following morning. He was driven to the hospital and was told that “he had
two ruptured or bulging discs.” Badilla eventually had surgery. He pursued a workers
compensation case and received a stipulated compensation order.
{4} 	Badilla filed a complaint against Wal-Mart on September 20, 2007, alleging
breach of express and implied warranties of the boots. Wal-Mart moved for summary
judgment, claiming that Badilla’s lawsuit was barred by the statute of limitation for
personal injury claims. 	The district court granted the motion, despite Badilla’s
assertion that his claims should be governed by the four-year statute of limitation

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under the UCC’s warranty provisions. 	Badilla appealed the dismissal of his
complaint.
II. 	DISCUSSION
{5} 	The sole issue we face is whether a breach of warranty lawsuit that only seeks
damages for personal injury should be governed by the tort statute of limitation or that
governing the sale of goods. 	We must determine whether to apply the limitation
governing the named cause of action, or the one based upon the essence of the claim.
{6} 	We review grants of summary judgment under a de novo standard of review.
Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582
(stating that “[s]ummary judgment is appropriate where there are no genuine issues
of material fact and the movant is entitled to judgment as a matter of law”); City of
Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M.
717, 213 P.3d 1146 (holding that “if no material issues of fact are in dispute and an
appeal presents only a question of law, we apply de novo review”).
{7} 	The UCC provides that “[a]n action for breach of any contract for sale must be
commenced within four years after the cause of action has accrued” and that “[a]
cause of action accrues when the breach occurs, regardless of the aggrieved party’s
lack of knowledge of the breach.” 	NMSA 1978, § 55-2-725 (1), (2) (1961). 	In
contrast, NMSA 1978, Section 37-1-8 (1976) provides generally that “[a]ctions must

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be brought . . . for an injury to the person or reputation of any person, within three
years.”
{8} 	Badilla’s injuries were personal, rather than related to any failure of the
purchase of the boots. He stated that his “objective was not to recoup the cost of the
boots but to recover damages.” His amended complaint stated that the loose sole of
the boots led to his personal injury, by causing “[Badilla] to fall backwards with
extensive force causing [him] to suffer damages, including severe, painful[,] and
permanent mental and physical injury, loss of earnings[,] and medical expenses.” In
seeking redress for his injury, however, he couched his claim under contract law,
suing Wal-Mart on three counts: 	breach of express warranty, breach of implied
warranty of merchantability, and breach of implied warranty of fitness for a particular
purpose. These causes of action are found in New Mexico’s adoption of the UCC,
NMSA 1978, §§ 55-2-313 to -315 (1961).
{9} 	Although other jurisdictions have addressed the issue of whether personal
injury or UCC time limits apply to such cases with disparate results, New Mexico
lacks a definitive rule. Some courts, in facing claims for personal injury under breach
of warranty theories, have applied the UCC statute of limitation period regardless of
what type of remedy is sought. See, e.g., Wieser v. Firestone Tire & Rubber Co., 596
F. Supp. 1473, 1475 (D. Colo. 1984) (stating that applying the UCC limitations period

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is the majority rule); Sille v. McCann Contsr. Specialties Co., 638 N.E.2d 676 (Ill.
App. Ct. 1994); Daugherty v. Farmers Coop. Ass’n, 689 P.2d 947 (Okla. 1984);
Garcia v. Texas Instrument, Inc., 610 S.W. 2d 456 (Tex. 1980).
{10} 	However, other jurisdictions have applied the tort limitations period, reasoning
that the essence of the claim determines the applicable statute of limitation. See, e.g.,
Follette v. Wal-Mart Stores, Inc., 41 F.3d 1234 (8th Cir. Ark. 1994); Abate v. Barkers
of Wallingford, Inc., 229 A.2d 366 (Conn. C.P. 1967); Waldron v. Armstrong Rubber
Co., 236 N.W. 2d 722 (Mich. Ct. App. 1975). These courts reasoned that, “[w]here
the injury is personal, the statute relating to personal injury actions applies.” Kinney
v. Goodyear Tire & Rubber Co., 367 A.2d 677, 681 (Vt. 1976). 	This rationale is
consistent with our practice in New Mexico to “look to the nature of the right sued
upon, and not the form of action or relief demanded, to determine the applicability of
the statute of limitations to a cause of action.” 	Martinez v. Cornejo, 2009-NMCA-
011, ¶ 29, 146 N.M. 223, 208 P.3d 443 (alterations, internal quotation marks, and
citation omitted).
{11} 	New Mexico has historically distinguished claims for personal injuries from
contractual claims, thereby aligning New Mexico more closely with this second line
of cases. Chavez v. Kitsch, 70 N.M. 439, 374 P.2d 497 (1962); Kilkenny v. Kenney,
68 N.M. 266 (1961); Mantz v. Follingstad, 84 N.M. 473, 505 P.2d 68 (Ct. App. 1972).

2The fact that Badilla never attempted to provide the required notice of the
alleged warranty’s failure reinforces our determination of the essence of the claim as
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In Chavez, our Supreme Court determined that when a couple sued a plumber for
breach of express and implied warranty for faulty work resulting in injury caused by
accumulation of carbon monoxide in their home, the “[a]ppellants’ cause of action is
basically one for injuries to the person of appellant” and, therefore, “the statute of
limitations for injuries to the person applies, even though the cause of action stated is
ex contractu in its nature.” 70 N.M. at 444, 374 P.2d at 500. The court in Chavez
cited to Kilkenny, which determined that a pre-UCC statute of limitation for damages
to property did not apply to the suit by the decedent’s husband for medical expenses
and loss of consortium while his wife was in a diabetic coma. Kilkenny, 68 N.M. at
270, 361 P.2d at 151. The Kilkenny court reasoned that the suit was based on “injury
to the person,” which was covered by a three-year statute of limitation. Id. (internal
quotation marks and citation omitted). The court in both cases looked to the gravamen
of the claim, rather than the plaintiff’s terminology.
{12} 	We agree that when a personal injury is the basis for a breach of warranty suit,
the essence of the injury should govern which statute of limitation applies. 	In
contrast, the UCC applies to cases involving the sale of goods. NMSA 1978, § 55-2-
102 (1961). In this case, Badilla fails to show that his claim is rooted in a breach of
warranty based on the sale of goods. 2 Badilla’s claims, which he described as

one for personal injury.
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undisputedly for personal injury, rather than loss based on the commercial value of the
boots, must remain subject to the three-year personal injury statute of limitation.
{13} 	Badilla argues that the four-year statute of limitation for breach of warranty
under the UCC should apply to his claims. Section 55-2-725. He states that the UCC
should apply because it is narrower and applies to sales transactions, rather than the
general statute for personal injuries. 	Badilla relies on our limited holding in
Fernandez v. Char-Li-Jon, Inc., 119 N.M. 25, 888 P.2d 471 (Ct. App. 1994),
abrogated on other grounds by Romero v. Bachicha, 2001-NMCA-048, ¶ 16, 130
N.M. 610, 28 P.3d 1151, to support his position that the UCC limitation should apply.
In Fernandez, this Court determined that the plaintiff’s claims under breach of
warranty for injury from glass shards in a drink were controlled by the UCC’s four-
year statute of limitation. 119 N.M. at 29, 888 P.2d at 475. However, we declined “to
enunciate a universal rule,” id. at 28, 888 P.2d at 474, and based our ruling on the
UCC’s use of language specific to the sale of a “drink to be consumed on the
premises” to cover this instance. Id.
{14} 	We reasoned in Fernandez that the general tort statute of limitation applies
“except when otherwise specially provided” and that the UCC provision at issue was
just such a special provision. 	Id. at 28-29, 888 P.2d at 474-75 (internal quotation

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marks and citation omitted). 	This is in accordance with Chavez, in which our
Supreme Court stated that “exceptions contained in statutes of limitation are to be
strictly construed.” 	70 N.M. at 443, 374 P.2d at 500 (referring specifically to the
personal injury statute of limitation). We note that, in the case at hand, there is no
such applicable special provision, and we do not consider the broad warranty
provisions of the UCC to be comparable to the food-and-drink provision, which we
relied on in Fernandez. Because the tort statute establishes its own general primacy
over other statutes of limitation, we are not persuaded by Badilla’s argument.
{15} 	Badilla also relies on the Committee Commentary to Uniform Jury Instruction
13-1430 NMRA, which states that both strict liability in tort and breach of warranty
in contract may provide theories under which a plaintiff may pursue product liability
claims. He uses the UJI to support his point that contract and tort theories co-exist for
breach of warranty cases. However, the Committee Commentary “suggests use of the
tort standard in personal injury cases and use of the merchantability standard in
commercial cases.” Id. The tort standard referred to in the UJI is the strict liability
standard in the Restatement (Second) of Torts, § 402(A) (2012). The UJI, while it
addresses the overlap between tort and contract law, does not contribute to our
analysis of the applicable statute of limitation.

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{16} 	Because the issue of the statute of limitation is dispositive, we need not address
the merits of Badilla’s claim under contract law. 	“Application of a statute of
limitations merely bars the remedy on a stale claim without determining the
underlying validity of that claim or modifying it in any way.” Britton v. Britton, 100
N.M. 424, 428, 671 P.2d 1135, 1139 (1983). “Even if we presume without deciding
[the merits of the case are valid], our conclusion concerning the district court’s
application of the statute of limitations is dispositive and requires affirmance.” Vill.
of Angel Fire v. Bd. of Cnty. Comm’rs of Colfax Cnty., 2010-NMCA-038, ¶ 13, 148
N.M. 804, 242 P.3d 371.
III. 	CONCLUSION
{17} 	We hold that the three-year personal injury statute applies when the gravamen
of a claim is in tort, although the claim is presented as one for breach of warranty
under the UCC. As Badilla’s injury occurred more than three years before he filed his
complaint, his claim is barred. We affirm.
{18} 	IT IS SO ORDERED.
____________________________________
RODERICK T. KENNEDY, Chief Judge
WE CONCUR:

JAMES J. WECHSLER, Judge

J. MILES HANISEE, Judge

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