warranties and product liability
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TRANSCRIPT
Warranty- contractual promise by the seller regarding the quality, character, or suitability of
goods he has sold
The seller, through words or behavior, makes promises about a good
Statements by the seller may be interpreted as an express warranty if the buyer has no knowledge or does not deal in the goods the seller deals in
Statements by the seller may be interpreted as an opinion if the buyer as knowledge of the good
Facts: ◦ Randall Bobholz purchased 1998 Glastron ski boat
from John Banaszak for $12,500 ◦ Boat was listed “in perfect condition” on eBay ◦ 2 weeks later while Randall was working on boat,
engine “just died” Issue: Did the statement in the
advertisement constitute an express warranty?
Decision: Yes, there was an “affirmation” of fact relating to the good becoming part of the “basis of bargain”
Arise by operation of law and exist without any intention of the seller to create it
A conclusion or inference of law, pronounced by the court, on facts admitted or proved before the jury
Implied warranty that the goods are merchantable- fit for their ordinary purpose
Imposed by law in the contract of sale Under Code, applies to the selling of food
or drink Defense- the warranty was effectively
disclaimed or limited Disclaimers possible as long as not
unconscionable
The goods will be fit for that particular purpose for which the buyer needs the goods; seller knows that the buyer is relying on the seller to select goods suitable for that purpose
Can be told by buyer or implied from circumstances
Defenses- seller exercised reasonable care, buyer assumed rick, buyer was contributory negligent
Disclaimers not generally effective
Protects the buyer in his ownership of the goods bought
In any contract for sale of goods, seller warrant to the buyer that he has the right to sell them
Under Code- parties to a contract have, within certain limits, the right to agree to relieve the seller from all or part of the liability for express or implied
warranties
In order to not be liable for express warranties, the seller should try to avoid making any (difficult because seller likely to make statements about the goods)
Including a disclaimer clause in not likely to succeed as it may be disregarded on the ground that it is inconsistent with the express warranty
To exclude Implied Warranty of Merchantability, seller must specifically mention “merchantability” in exclusion
To exclude Implied Warranty of Fitness, must be in writing and must be conspicuous
Can be excluded by circumstances of sale (ex. “as is” or “with all faults”)
Court has authority to refuse to enforce a particular clause or entire contract if it finds it unconscionable
Most likely unconscionable in case of personally injured consumer
Least likely unconscionable where plaintiff is merchant trying to recover for property or economic loss
Sellers may try to limit their liability for breach of warranty
May be enforced unless it is unconscionable or if the limitation causes warranty to fail of its essential purpose
When the product is defective and injures someone, the question is whether the injured person can benefit from the warranty and recover from the seller or manufacturer for breach of warranty
In the past, injured purchasers could not recover directly from the manufacturer, however today an injured purchaser can recover from both the immediate seller and the manufacturer
The code extends warranty protection to: ◦ He who is in the household of the purchaser, is reasonably expected to use, consume, or be affected by the good, and is injured by breach of warranty ◦ He who is a bystander or employee of the purchaser, is reasonably expected to be affected by the good, and was injured by breach of warranty
Facts: ◦ 1997 Carolyn Bryant was being treated for cardiac
problems, prescribed drug Betapace (samples given to her by her doctor from Hoffman-La Roche) ◦ A couple weeks after an increased dosage, she died ◦ Bryant’s husband tried to sue Hoffman-La Roche
Issue: Was Mrs. Bryant barred from claiming benefit of implied warranties of merchantability and fitness on grounds there was no privity b/w her and Hoffman-La Roche since she did not purchase directly from them
Decision: Yes
Magnuson-Moss Warranty Act (1975)
Provide minimum warranty protection for consumers
Increase consumer understanding of warranties
Ensure warranty performance by providing useful remedies
Encourage better product reliability by allowing consumers to choose among products based only likely reliability
Warranty must be enforceable A clear description of what is covered and what is not Statement of what the maker will do and what will be paid
for (or not) if product is defective, malfunctions, or does not conform to warranty
Time warranty begins and its duration How to obtain warranty service and info about any informal
dispute settlement mechanisms Any limitations on implied warranties, any exclusions or
limitations on relief, explanation when those may not be allowed
Statement that consumer has certain legal rights under the warranty
Warrantor will fix/replace any defective product Not limited in time Does not either exclude or limit payment for
consequential damages unless conspicuously printed on warranty
If irreparable or has not been repaired after reasonable number of efforts, consumer may choose between a refund and a replacement
Warrantor cannot impose unreasonable duties on consumer or a duty not to modify the product
Warrantor is not required to fulfill warranty terms if problem was caused by damage to the product through unreasonable use
Does not have to cover whole product
Any other warranty covered by the act that does not meet the standards for a full warranty
Act requires the seller to make the written warranty terms available to the prospective buyer before the sale
FTC enforces the disclosure provisions of the warranty act and regulations
Consumers have right to sue maker for failure to fulfill terms of warranty
Consumer can sue manufacturer if manufacturer offers the warranty, or the retailer if the retailer grants the warranty
Product Liability in General- seller is liable for breach of warranty, negligence, and strict liability
Failure to inspect Improperly manufacturing goods Failing to disclose known defects,
adequately warn about known dangers, or instruct about proper use
Failing to use due care in designing goods
Middlemen have no duty to inspect new prepackaged goods
Obvious danger- one factor to be considered regarding liability
Manufacturer’s duty extends to anyone who may foreseeably be injured if manufacturer does not exercise its duty of care
Liability without fault imposed on manufacturers and seller of unreasonable dangerous products
Persons injured by defective produts were not always able to recover for injuries under negligence or breach of warranty
Plaintiff must show ◦ A product has been sold in a defective condition
that makes it unreasonably dangerous to user/consumer ◦ The seller engaged in the business of selling such a
product ◦ The product is expected to and does reach
consumer w/o substantial change in condition in which it is sold ◦ Consumer or other person sustains physical harm
or property damage because of defective condition
Whether anything else could have been done to make the product safer, given the practical and technological limitations of the time in determining whether a product is inherently dangerous or defectively designed
Facts: Roberto Martinez was injured while installing a Goodrich tire. Despite a prominent warning label, he attempted to mount it on a 16.5 inch rim. He sued Goodrich under strict liability.
Issue: Is a manufacturer strictly liable for injuries caused by plaintiff’s failure to follow a suitable warning if the manufacturer knows of a safer alternative product design?
Decision: Yes, a claimant must establish that the defendant could have provided safer alternative design (section 402A of the Restatement (Third) of Torts).
Product has been substantially changed since it left manufacturer or seller
Buyer was adequately warned about the unreasonable danger
Product was state of the art when designed of manufactured
Buyer used product in an unintended or unforeseen manner
Buyer assumed all obvious risk of injury
Designed to take the risk of product-related injuries off the consumer and place them on the manufacturer
Created because increasing number of people were being injured by standardized products whose manufacturers could not be identified
Laws limiting sellers’ liability ◦ Defining what is state of the art ◦ Protecting a manufacturer if its products meet government safety standards ◦ Protecting subsequent sellers from suit if the manufacturer is available ◦ Using comparative fault to reduce a damage award if the plaintiff contributed to his or her own injury
Bars the bringing of a tort-based product liability suit after a certain number of years (usually 10) from the date the product is first sold to a user