Chapter 13: Warranty and Liability Issues in the Sale of Products
A.
Types of Warranties
1.
Express Warranty: A promise that
the goods contracted for are of the quality indicated, communicated in a
written or verbal form or by use of a model or sample.
a) An opinion does not create
an express warranty.
b) An express warranty does not
exist unless it becomes part of the basis of the bargain – it must be important
to and relied upon by the buyer upon purchase.
2.
Implied Warranty: A promise that
the goods contracted for are of the quality indicated, arising automatically
from the purchase transaction, not requiring any specific promise or statement
from the seller.
a) Implied warranty of
Merchantability (UCC §2-314): When goods
are purchased from one who normally sells goods of that type, the goods must
be:
(1) fit for the purpose for which that type of
goods is normally used;
(2) be adequately contained and packaged;
(3) be of “fair average
quality;” and
(4) pass without objection in
the trade.
b) Implied warranty of Fitness
for a Particular Use (UCC §2-315): Where
the buyer relies upon the seller’s knowledge and experience in purchasing goods
that will be used in a particular way, there is an implied promise that the
goods are suitable for that use.
Chapter 11: Business Torts and Crimes
A. Negligence (Page 363):
Where a person causes injury to another person or property by performing
an act with less than the amount of care expected of a reasonable person.
1. Elements of Negligence
a)
Duty: A legal obligation between two individuals –
the actions of one individual towards another must meet the reasonable person
standard (taking reasonable care not to injure others).
b)
Breach of the
Duty: The individual acts in a manner
that is inconsistent with their duty to take reasonable care.
c)
Proximate Cause: An individual’s failure to take reasonable
care must have directly caused injuries to another.
(1)
“But For”
test: the plaintiff must show that, “but
for” the actions of the defendant, he or she would not have been injured.
(2)
Foreseeability: was it reasonable to expect that the injuries
that occurred could have resulted from the defendant’s actions, or were the
results too remote and unforeseeable for a reasonable individual to believe
that the plaintiff’s injuries could have resulted from the defendant’s actions.
d)
Injury to
Another: There is no tortuous negligence
if there are no damages.
2. Defenses to Negligence
a)
Contributory
Negligence: An affirmative defense that
asserts that the plaintiff was also negligent in the incident that resulted in
the defendant’s injuries – in jurisdictions where this defense exists, a
showing of contributory negligence results in dismissal of the case.
b)
Comparative
Negligence: Damages are adjusted to
account for each party’s relative fault.
c)
Assumption of the
Risk: Where the plaintiff knowingly and voluntarily enters into the situation
that leads to his or her injury.