graphics at that time due to amount function of the press his left hand and arm were pulled into the machinery and the rollers from which he sustained muscular vascular and nerve damage this lawsuit was pending on may twenty five two thousand and four he suffered an accidental overdose of pain medication that he was eighty as a result of this accident a motion dismiss the claim on the basis of the claim did not survive the death of jason shot the district court granted the motion dismissing the case and we on behalf of the state thereafter appealed it is our position that ad a whole lot is particularly clear that jason shah as an employee of the purchaser of the press is entitled to bring contractual warranty claims under the u c c and that any common law it doesn't really matter how you characterize his status as an employee of the employer gives him that right to pursue those warranty claims whether he's a thirteen sort of third party beneficiary or as the agent all only if you're not only if you don't have the correct status if you don't have the status actively sally but that that's what i thought fuck and was trying to distinguish between o but i think you know that also indicated that had he had the correct status such as being in the employ of the employer purchasing the product with that crack status it would be a contract action and on the facts at all let me ask you you have to question as to whether or not this is ex contract too in the consequence of allowing the survival of the action it's damn concerned about the argument than expected be made in a moment that even if it is under the u c c that is not its contract in the sense of abating the cause of action because of the nature of the damage remedy because it looks not like a tort remedy in the sense of how you measure those damages could you respond to that argument and i appreciate that question and i do fully expect that argument by the pocket does result that issue and the question of whether it's contractors that are contractor porters going to turn on the type of bramble you saw in this case and so if you want it you've i don't think you can take the position that simply because you're seeking damages for personal injury that makes it a court action and therefore the u c c provisions of the apply because if you take that that we have a breach of duty and the fact that consequential damages should be measured by harm to the plaintiff and that's fairly standard contract stuff would would you see it would you be able to see it that way yes i think i think this is a consequential damage he and the attorney representing sequel have agreed to support our ten minute time i would to keep seven minutes and he would get three all right that regardless of what you made legal or coal or what is the source of your cause of action with regards to whether your damages survive you look to the nature of the damage is being alleged and and over time of damages those being personal injury property damage and economic loss he would have both contract damages available the economic loss if if you could prove some economic loss in this case there isn't anybody you dad i'm not entirely sure right and i mean i just i just don't understand why if he has a claim then the scope of this damages are circumscribed by the nature of claim correct and of the proof that he could muster to try stand and since we don't know from our perspective we don't know what that is one way or the other we don't know if he does or doesn't have economic damages for example i know maybe he doesn't in your view but we don't know that in terms of where we stand and in this case so why wouldn't he if we were to determine that he has a u c c claim why wouldn't we mandate to the court to proceed under that theory and then the chips fall where they now say we are and i don't i don't believe that the plaintiff has alleged economic damages in his client and as the so on but it also causes physical injury and i lose a leg i assume that i can recover from the loss of a leg and then damage recovery for that was a living will comes a number that comes out and will certainly look an awful lot like the number that would come out of this one or personal injury damages because been in malfunctioning the product cost me my leg as to the damages for the loss of the leg i assume and the number i get will be identical to the number i would get if this were george to based upon the loss of a are personal injury damages that would not be recoverable under contract theory they may be recoverable common law contract theory now because the static that the idle legislature combine with these remedies and they used to see still  doesn't change for the purposes of determining whether they survive doesn't change the analysis that you look at the nature of the damages ok all right thank you will i hear from  versus technical research company six fifty four after second thirteen thirty seven decided in dolphins breathe i think it goes against you well you wonder if we believe that and i'm the practical consequences of your position so if you're correct when you're not in distraction  briefly your honor if you look at the statute on the u c c expert expressly provides recovery for the type of damage stock in this case and night council wants to ignore that and say well because it might be the same type of damage as