(concurring in part, dissenting in part).
Although I agree with the majority opinion’s interpretation of SDCL 38-21 — 46, I would hold that the trial court erred in not giving effect to the disclaimer of liability for consequential damages.
I do not believe that it is fair to characterize appellant’s product as having been falsely labeled or misbranded within the meaning of the labeling requirements set forth in SDCL ch. 38-20A. As I read the record, there was no evidence introduced that would have supported a finding that the Milogard did not contain the chemical ingredients listed on the label. Moreover, in addition to that portion of the label set forth under the subheading “Condition of Sale and Warranty” quoted in the majority opinion, the label stated in part:
The Directions for Use of this product reflect the opinion of experts based on field use and tests. The directions are believed to be reliable and should be followed carefully. However, it is impossible to eliminate all risks inherently associated with use of this product. Crop injury, ineffectiveness, or other unintended consequences may result because of such factors as weather conditions, presence of other materials, or the manner of use or application all of which are beyond the control of CIBA-GEIGY or the Seller. All such risks shall be assumed by the Buyer.
*702There was expert testimony that the effectiveness of a herbicide such as Milogard can be adversely, affected by application at a rate less than that recommended for the particular soil type involved, deeper incorporation into the soil than that recommended, dry soil conditions during the germination period of the weed seeds, and cool weather during the germination period. Likewise, there was expert testimony that all of these adverse conditions were present in the instant case.
Given these variables, all of which are beyond the control of appellant or any other manufacturer of herbicides, I conclude that it was eminently reasonable and, perforce, not unconscionable for appellant to include the disclaimer of consequential damages. I find the carefully reasoned, soundly considered decision of the Minnesota Supreme Court in an analogous case to be applicable to the case at bar:
AAtrex 80W is a highly technical specialized chemical developed and used for selective control of certain weeds or plants growing in common with other plants. A University of Minnesota Agricultural Extension Service Bulletin in evidence reports numerous experiments with herbicides, indicating that even where the product is applied under controlled conditions by experts, there is a certain percentage of failure to obtain good control. It is general knowledge, as the trial court in that rural area noted, that the eventual yield of a farm crop, such as corn, is affected by numerous and varied factors such as soil, weather, seeds, weeds, and other conditions. Considering the nature of the product itself and the multitude of conditions and factors that affect its effectiveness or its degree of effectiveness, limited favorable results could be anticipated. Finally, it is clear that the risks of failure were fairly disclosed to plaintiffs at the time of purchase in these words:
“ * * * Crop injury, ineffectiveness or other unintended consequences may result because of such factors as weather conditions, presence of other materials, or the manner of use or application all of which are beyond the control of Geigy or the Seller. All such risks shall be assumed by the Buyer.”
We accordingly agree with the trial court’s conclusion that these facts of nature and the nature of the product make conscionable the stated exclusion of consequential damages.
Kleven v. Geigy Agricultural Chemicals, 303 Minn. 320, 227 N.W.2d 566, 572 (1975).
It is true, as the majority opinion points out, that our legislature spent considerable time and effort in deciding whether or not to adopt the warranty provisions of the Uniform Commercial Code. As finally adopted, however, those warranty provisions also included SDCL 57A-2-719(3). Appellant did no more than to avail itself of the opportunity presented by that portion of the Uniform Commercial Code to exclude its liability for consequential damages. I do not find it unacceptable for a manufacturer to seek to avail itself of a statutory provision adopted by the same legislature that adopted the corresponding warranty provisions.1
I would set aside that portion of the judgment that represents an award for consequential damages resulting from the alleged diminution in crop yield.
I am authorized to state that Justice Fosheim joins in this concurrence in part and dissent in part.
. I note, without necessarily endorsing, the wry observation of Professors White and Summers concerning cases of this nature:
In light of the cases decided thus far, we suspect that whenever a consumer’s blood is spilled, even wild horses could not stop a sympathetic court from plowing through the most artfully drafted and conspicuously printed disclaimer clause in order to grant relief.
J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code 485 (2d ed. 1980).