Term
| Implied Assumption of Risk |
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Definition
| 19th century law that prevented employees from receiving workers compensation. |
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Term
| Early defense against workers comp |
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Definition
- employee contributed
- fellow-servant rule: if damages are from another employee
-difficulty proving negligence
-implied assumption of risk |
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Term
| Basic Features of Workers Compensation |
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Definition
1. only protects employees and not independent contractors (however many states exempt casual, agricultural, and domestic employees, among others as well as employers with 3 or less employees)
2. strict liability
3. eliminate defenses of contributory negligence, assumption of risk, and fellow-servant rule.
4. Exclusive remedy |
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Term
| Exclusive Remedy (workers compensation) |
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Definition
| can only sue employer within workers compensation |
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Term
| Intentional injuries (workers comp) |
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Definition
| employees can sue employer outside of workers compensation. this ranges from intentional torts to the employers intentionally not doing something that resulted in injury |
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Term
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Definition
| this means an employee can sue outside of workers compensation. an example would be a case in which an employee is injured on the job by a defect in a product manufactured by the employer |
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Term
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Definition
1 hospital and medical expenses
2 disability benefits
3 specified recoveries for the loss of certain body parts
4 death benefits to survivors and/or dependents
however the amount recoverable is much less than would be obtained in a negligence case |
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Term
| Can employees sue against other parties whose behavior helped cause injury? |
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Definition
| yes one example is a prodcut liability suit against a munufacturer who supplies an employer with defective machinery. must states won't let you sue a coemployee who may have caused injury. |
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Term
| Work Related injury requirements for Workers Compensations |
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Definition
1. arise out of the employment (below are rules defining this relationship)
a. increased risk:only if nature of job increases her risk to injury
b. positional risk: if employment caused injured to be at place when injury occurred
2 happen in the course of the employment
a. time, place, and circumstances of the empolyment |
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Term
| Disputed injuries and workers compensation |
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Definition
1 mental injuries
2 injuries from employee horse play
3 intentional injury (not usually covered)
4 recovery for occupational diseases (usually recoverable) |
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Term
| Administration and Funding (workers compensation) |
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Definition
| administered by a state agency that adjudicates workers' claims and administers the system |
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Term
| How does the state fund workers compensations? |
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Definition
By compelling employers to
1 purchase private insurance
2 self-insure
3 make payments into a state insurance funds |
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Term
| The Occupation Safety and Health Act (OSHA) |
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Definition
act of 1970 imposes a duty on employers to provide their employees with a workplace and jobs free from recognized hazards that may cause death or serious harm.
Some Regulations: required employers to inform about exposure to hazardous material and provide training for it. Employers must report injuries that require hospitalization to the secretary of labor. |
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Term
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Definition
all employers engaged in a business affecting interstate commerce.
Exempt: U.S government, the states and their political subdivisions, and certain industries regulated by other federal safety legislation. |
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Term
| Sanctions for Violations of OSHA |
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Definition
various civil penalties
willful violation resulting in death to an employee may suffer a fine, imprisonment, or both. The secretary of labor may seek injunctive relief when when an employment hazard presents an imminent danger of death or physical harm. |
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Term
| The Family and Medical Leave Act |
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Definition
made due to the importance of proper child-raising, family stability, and job security.
passed in 1993 that covers employees who have worked 12 months and 1250 hours during those months and 50 or more employees. covered employers include federal, state, and local government agencies. |
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Term
| FMLA entitles employees to |
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Definition
12 work weeks of leave during any 12-month period for:
1. the birth of a child and the need to care for that child
2. adoption of a child
3. the need to care for a spouse
4. the employee's own serious health condition.
Usually leave is without pay |
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Term
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Definition
| employee's return from leave employer must put her in the same or equivalent position and must not deny her benefits accrued before the leave began. |
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Term
| FMLA Defense Authorization Act of 2008 |
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Definition
| provisions revised the FMLA for military families. employees take up to 12 weeks of leave because of any "qualifying exigency" arising from the fact that the employee's spouse, son, daughter, or parent is on active military duty or has been notified of an impending call to active duty. |
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Term
| Consequences of denying FMLA |
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Definition
| employers are civilly liable to the affected employee for resulting lost wages or, if no wages were lost, for any other resulting monetary losses not exceeding 12 weeks' wages. Employees may also recover an additional equal amount as liquidated damages, unless the employer acted in good faith and had reasonable ground for believing that it was not violating the act. |
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Term
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Definition
| funded by the federal insurance contribution act and paid to retired employees. FICA imposes a flat percentage tax on all employee income below a certain base figure and requires employers to pay a matching amount. Self-employed pay a different rate. |
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Term
| Unemployment Compensation |
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Definition
| plans vary from state to state. states often condition the receipt of benefits on the recipients having worked for a covered employer for a specified time period, and/or having earned a certain minimum income over such a period. those who voluntarily quit work without good cause, are fired for bad conduct, fail to actively seek suitable new work, or refuse such work are ineligible for benefits. |
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Term
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Definition
| Employment Retirement Income Security Act of 1974. Law does not require employers to establish or fund pension plans and does not set benefit levels. Instead it tries to check abuses and to protect employees' expectations that promised pension benefits will be paid. |
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Term
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Definition
imposes fiduciary duties on pension fund managers. including:
1. managers must diversify plans to avoid loss
2. imposes record-keeping, reporting, and disclosure requirements.
3. provision guaranteeing employee participation in the plan. Certain employees who complete one year of service with an employer cannot be denied plan participation.
4. contains funding requirements for protecting plan participants against loss of pension income.
5. vesting requirements that determine when an employee's eright to receive pension benefits become nonforfeitable. |
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Term
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Definition
regulates wages and hours by entitling covered employees to
1 a specified minimum wage
2 a team and a half rate for work exceeding 40 hours per week
Covers: large businesses engaged in interstate commerce as well as federal, state, and local governments.
Exemptions: executive, administrative, and professional personnel. |
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Term
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Definition
| forbids the use of child labor by any employer engaged in interstate commerce or in the production of goods for such commerce, and also forbids the interstate shipment of goods produced in an establishment where oppressive child labor occurs |
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Term
| Oppressive child labor includes |
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Definition
1 employment of children below 14
2 employment of children age 14-15, unless they work in an occupation specifically approved by the department of labor
3 employment of children 16-17 who work in occupations declared particularly hazardous |
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Term
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Definition
| recover any unpaid minimum wages or overtime, plus an additional equal amount as liquidated damages, from an employer that has violated the FLSA. |
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Term
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Definition
| forbids sex discrimination regarding pay. amendment in 1963 to the FLSA. Unlike FLSA, EPA covers executive, administrative, and professional employees. |
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Term
| Requirements to win an EPA case |
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Definition
1 equal effort (physical or mental exertion)
2 equal skill (experience, training, education, and ability)
3 equal responsibility (degree of supervision each job requires and the importances of job.)
4 similar working conditions (factors as temperature, weather, fumes, ventilation, toxic conditions, and risk of injury) |
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Term
| Employers defense against EPA (must prove 1) |
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Definition
1 seniority
2 merit
3 quality or quantity of production
4 any factor other than sex(shift differentials, bonuses paid because the job is part of a training program, and differences in the profitability of the products or service on which employees work. |
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Term
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Definition
| similar to that of FLSA, however it is for the amount of back pay lost because of an employer's discrimination, not for unpaid minimum wages or overtime. Enforced by the Equal Employment Opportunity Commissions rather than the labor department. not required to submit complaints to the EEOC or a state agency before mounting suit |
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Term
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Definition
| is a wide-ranging employment discrimination provision. prohibits discrimination based on race, color, religion, sex, and national origin in hiring, firing, job assignments, pay, access to training and apprenticeship programs, and most other employment decisions. |
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Term
| Entities covered by Title VII |
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Definition
| covers all employers employing 15 or more employees and engaging in an industry affecting interstate commerce. Employers include individuals, partnerships, corporations, colleges and universities, labor unions and employment agencies. Referrals by employment agencies are covered no matter size. certain unions are covered as well if they 15 or more members. |
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Term
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Definition
| usually a private suit. in order to sue privately one must first appeal to the EEOC or state agency. This allows EEOC to launch investigation to see if claim has substance or the sue employer themselves. if files with state agency and state doesn't act, one can still file with EEOC. Plaintiff can mount own suit if EEOC issues a right-to-sue letter" |
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Term
| Title VII proving discrimination. |
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Definition
1. direct evidence
2. disparate treatment
3. disparate impact |
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Term
| Title VII disparate treatment. |
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Definition
| involve situations in which an employer has treated. employee must establish a case of prima facie (A case in which the evidence presented is sufficient for a judgment to be made unless the evidence is contested.). |
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Term
| Title VII disparate impact |
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Definition
| used when the alleged discrimination affects many employees. employer uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin. |
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Term
| Defense against Title VII |
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Definition
1 Seniority
2 Merit- system based earnings on quantity or quality of production or the results of a professionally developed ability test.
3 BFOQ Defense- Bona Fide Occupation Qualification. Defense means discrimination is reasonably necessary to the business in question. Does not protect against race or color discrimination . |
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Term
|
Definition
1. Back pay accruing from a date two years before the filing of the charges
2. recover reasonable attorney's fees.
3. Compensatory Damages- for harms such as emotional distress, sickness, loss of reuptation, or denial of credit.
4. Punitive Damages- can be awarded if discriminated with malice or with reckless indifference to the plaintiff's rights. however, punitive+compensatory cannot exceed certain amounts.
5. Equitable Relief- orders compelling hiring, reinstatement, or retroactive seniority, occasionally the order of a quota |
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Term
| Equitable Relief and Title VII |
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Definition
permissable if
1. engaged in severe, widespread, or long-standing discrimination
2. the order does not unduly restrict the employment interests of white ppl
3. it does not force an employer to hire unqualified worker
this preferences can also appear in the consent decrees courts issue when approving the terms on which the parties have settled the case |
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Term
| Racial preferences that favor minorities who are qualified for the job in question pass title VII if |
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Definition
1 are intended to correct a racial imbalance involving underrepresentation of minorities.
2 do no unnecessarily trammel the rights of white employees or create an absolute bar to their advancement
3 are only temporary |
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Term
| What is national origin discrimination |
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Definition
discrimination based upon
1 country of one's or one's ancestors' origin
2 one's possession of physical, cultural, or linguistic characteristics identified with people of a particular nation. |
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Term
|
Definition
2 forms
1. quid pro quo
2. hostile environment harassment |
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Term
| Quid Pro Quo Sexual Harassment |
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Definition
| involves some linkage between an employee's submission to sexually oriented behavior and tangible job consequences. Getting fired for not having sex with boss |
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Term
| Hostile Environment Harassment |
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Definition
| occurs when an employee is subjected to unwelcome, sex-related behavior that is sufficiently severe or pervasive to change the conditions of the victim's employment and create an abusive working environment. |
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Term
| Employer Liability for sexual harassment committed by employees |
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Definition
| this is dependent on if the harasser was a coemployee or a supervisor of the victim, whether the company had sexual harassment policies, training, and grievance procedures. Held liable if employer knew of harassment. Also held accountable when a supervisor commits harassment of employee, held to vicarious liability. |
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Term
| What is sexual harassment defense if not tangible employment action is taken? |
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Definition
1 employer exercised reasonable care to prevent and correct promptly any sexuall harassing behavior
2 the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by employer |
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Term
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Definition
| a post-civil war civil rights statute sets standards resembling title VII. prevents retaliation against complaints. it is important because it provides certain advantages to those covered that Title VII does not. Damages are apt to be larger using 1981. |
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Term
| The Age Discrimination in Employment ACt |
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Definition
| 1967 act prohibits age based employment discrimination against employees who are at least 40 years of age. Not a violation to favor older employees over younger. |
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Term
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Definition
1 those engaged in an industry affecting interstate commerce
2 employee at least 20 persons.
act no longer regulates state and local governments. referrals are under ADEA no matter what the size.
additionally unions with 25 or more members are covered by ADEA |
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Term
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Definition
| must file a charge through the EEOC. statute of limitations is 3 for willful violation and 2 for nonwillful |
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Term
|
Definition
| can use direct evidence as well as disparate impact. |
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Term
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Definition
| Can use a BFOQ defense, good cause and to use reasonable factors other than age. |
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Term
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Definition
| include unpaid back wages and overtime pay resulting from the discrimination; an additional equal award of liquidated damages where the employer acted willfully; attorny's; fee; and equitable relief, including hiring, reinstatement, and promotion. Most courts do not allow for punitive damages and recoveries for pain, suffering, mental distress, and so forth |
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Term
| The American Disabilities Act |
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Definition
| prohibits discrimination against people who have disabilities. procedures and remedies are the same as for Title VII |
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Term
|
Definition
| employers with 15 or more employees engaged in an industry affecting interstate commerce. |
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Term
| ADA and Substantive protection |
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Definition
| prevents employers from discriminating against qualified employees if they are disabled if it doesn't affect job or if reasonable accommodations can be made. |
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Term
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Definition
1 undue hardship- too costly to create accommodations
2 job-related criteria + business necessity |
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Term
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Definition
1 physical or mental impairment that substantially limits one or more major life activities
2 a record of such an impairment
3 one's being regarded as having such an impairment.
not covered are those engaged in the use of illegal drugs
corrective measures must be taken into account as well. |
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Term
| ADA Amendments act of 2008 |
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Definition
| the ADA should be construed in favor of broad coverage. created to favor those disable and to prevent tough restrictions on what a disability is and what it isn't. shouldn't be over analyzed |
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Term
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Definition
| forbids race, color, national origin, religion, and sex discrimination by certain federal contractors. enforced by the labor department's office of federal contract compliance programs (ofccp) |
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Term
| State Antidiscrimination laws |
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Definition
| some states have laws that are more strict than federal regulations. |
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Term
| Comparable Worth (State Laws) |
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Definition
| apply to public employees, often say that state governments should not discriminate in pay between female dominated jobs and male dominated jobs of comparable overall worth the employer. |
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Term
| Employee polygraph protection act in 1988 |
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Definition
forbids employers from
1 require, suggest, request, or cause employees or prospective employees to take any lie dectectortest
2 use, accept, refer to, or inquire about the results of any lie detector test administered to employees or prospective employees.
3. discriminate or threaten to discriminate against employees or prospective employees because of the results of any lie dectector test
the law also restricts the disclosure of test results by examiners and most employers |
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Term
| Exemptions from the Employee Polygraph Protection Act in 1988 |
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Definition
1 federal, state, and local government employers
2 certain national defense and security related test by federal government
3 certain tests by security service firms
4 certain test by firms manufacturing and distributing controlled substances. |
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Term
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Definition
| testing of public employees can be attacked by the 4th amendment, unless such test are of a nature where it is reasonable to suspect that an employee is using drugs or alcohol or drug use in a particular job could threaten the public interest or safety. Private sector employees usually have no federal constitutional protection against testing. The government does require some employees in the private sector to take drug test. This includes contractors working with the defense department. |
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Term
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Definition
| Public employees experience more protection under 4th amendment than private employees. however, both can sue under the statute of invasion of privacy. courts will usually try to weigh the intrusiveness of the search and the justification behind them |
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Term
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Definition
| most states allow both public and private employees some access to their personal files maintained by their employers. it is sometimes limited how much 3rd parties have access to said files. if data is transferred employers can be charged with defamation unless the information is true. Some states have allowed defamations suits for so called compelled self disclosure by job seeking, wrongfully discharged employees who have to tell potential employers the alleged reasons for firing |
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Term
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Definition
| Used to monitor the performance of employees. usually ok if they are announced and in advance and conducted in areas not considered to be private (restrooms, lounge). employers have a good deal of flexibility |
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Term
| Doctrine of Employment at Will |
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Definition
| either party can terminate an employment contract of indefinite duration. this termination can occur at any time; and can be for good cause or no cause |
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Term
| Common Law Exceptions to Doctrine of employment at will |
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Definition
1 Public Policy Exception: terminated employee argues that his discharge was unlawful because it violated the state's public policty
a. refusal to commit an unlawful act
b. performance of an importance public obligation
c. exercise of a legal right or privilege
2 The Implied Covenant of Good Faith and Fair Dealing:contract claim in which the employee argues that her discharge was unlawful because it was not made in good faith or did not amount to fair dealing, thus breaching the implied contract term. only about 25% of courts accept this
3 Promises by Employers:courts have increasingly held employers accountable for promises made during hiring or employee orientation, or in their employee manuals, hand books, personnel policies and benefit plans. |
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Term
| 19th century product liability law |
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Definition
| Caveat Emptor (let the buyer beware) very hard to sue for negligence and breach of warranty. Items were simple and courts favored protecting them |
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Term
| 20th + 21st century product liability law |
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Definition
| caveat venditor (let the seller beware) as corporations have gotten larger, courts have moved to defend the consumers |
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Term
| Current Debate over Product Liability |
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Definition
| Due to the increased cost of insurance and the increasing number of product liability cases, courts are attempting scale back the proplaintiff aspect of product liability law |
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Term
|
Definition
| Expressed and Implied. Promise about the product being sold |
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Term
| Creation of an Expressed Warranty UCC section 2-313(1) |
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Definition
1 If an affirmation of fact or promise regarding the goods becomes part of the basis of the bargain
2 Any description of the goods that becomes part of the basis of the bargain creates an express warranty that the goods will conform to the description. This description includes (1) goods are a certain type, brand, or model. (2) adjectives that characterize the product (3) drawings, blueprints, and technical specifications
3. Assuming it becomes part of the basis of the bargain, a sample or model of goods to be sold creates an express warranty that the goods will conform to the sample or model |
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Term
| Value, opinion, and sales talk (expressed warranty) |
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Definition
| opinion do not create an express warranty (this chair would bring you 2000 at an auction). The same is true of statements that amount to sales talk or puffery (this chair is a good buy)The relative knowledge of the seller and buyer most be taken into account |
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Term
| Basis-of-the-bargain requirement |
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Definition
| post ucc law that requires that the necessary requirements needed to be exist to create a expressed warranty must have bcome part of the basis of the bargain. there must have been a significant reliance. some courts rule that the factor only need be contributory to the purchase |
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Term
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Definition
| they may be taken as express warranty but are often labeled as sales talk. basis-of-bargain may arise, because it is unclear as to how much the advertisement influenced purchase. |
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Term
| Multiple express warranties |
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Definition
UCC section 2-317 says that multiple express warranties should be read as consistent with each other and as cumulative if reasonable.
If not reasonable then parties intentions prevails. (1) exact or technical specifications defeat a sample, a model, or general descriptive language; and (2) a sample dfeats general descriptive language. |
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Term
| Implied Warranty of Merchantability. |
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Definition
| In an implied warranty of merchantability case, the plaintiff agues that the seller breached the warranty by selling unmerchantable goods. under 2-314 such claims can succeed only when the seller is a merchant with respect ot goods of the kind sold. |
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Term
| Implied warranty of merchantability (requirements to be a merchantable) |
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Definition
1 pass without objection in the trade
2 be fit for the orinary prupose of which such goods are used
3 be of even kind, quality, and quantity within each unit
4 be adequately contained, packaged, and labeled
5 conform to any promises or statements of fact made on the container or label
6 in the case of fungible goods, be of fair average quality.
most importantly good must be fit for the ordinary purpose for which such goods are used. |
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Term
| Foreign-natural test (for food products) |
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Definition
| defendant is liable if the obect or substance is foreign to the product, but not liable if it is natural to product. |
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Term
| Implied Warranty of Fitness |
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Definition
arises where
1 the seller has reason to know a particular purpose for which the buyer requires the goods
2 the seller has reason to know that the buyer is relying the sellers judgement for selection of suitable goods
3 the buyer actually relies on the sellers judgement in purchasing the good
these mean that the good must be for the buyers particular needs. |
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Term
| Exemptions of implied warranty of fitness |
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Definition
| buyers may have trouble recovering if they are more expert than the seller, submit specifications, inspect goods, actually select them, or insist on particular brand |
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Term
|
Definition
-manufacture
-design
-inspection
-failure to warn |
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Term
|
Definition
| claims alleging the manufacturer's improper assembly, materials, or packaging often encourter obstacles because the evidence needed to prove a breach of duty is under the defendants control. res ipsa loquitur may help paintiffs establish a breah |
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Term
|
Definition
| manufacturers ahve a duty to inspect their products for defects if such an inspection would be practicable and effective. Middlemen have a duty to inspect only when they have actual knowledge or reason to know of a defect. Unless product defect is obvious, middle men are not liable for failing to inspect goods sold in the manufacturer's original packages. Sellers that prepare, install, or repair the goods they sell ordinarily have a duty to inspect those goods. |
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Term
| Negligent Failure to Warn |
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Definition
| Have a duty to give an appropriate warning when their products pose a reasonably foreseeable risk of harm. Courts often consider other factors besides the reasonable foreseeability of the risk. including magnitude or severity of harm, ease or difficulty of providing warning, and effectiveness of warning. No duty if danger is open and obvious |
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Term
|
Definition
manufactorers have a duty to design their products so as to avoid reasonably foreseeable risks of harm. Factors include magnitude or severity of foreseeable harm. Three other important factors are:
1 industry practices
2 state of the art at time
3 compliance with government regulations
Additionally courts use the risk-benefit analysis when weighing these factors. This analysis takes into consideration social utility, effectiveness of alternative designs, and cost of safer designs. |
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Term
| Section 402A Requirements (strict liability) |
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Definition
" a seller engaged in the business of selling a product is liable for physical harm or property damage suffered by the ultimate user or consumer, if the product was in a defective condition unreasonably dangerous to the user or consumer.
Requirements
1. seller must be engaged in the business of selling the product that harmed the plaintiff.
2. Product must be in a defective condtion when sold and also must be unreasonably dangerous because of condition.
3 defendants may avoid section 402A when the product was substantially modified by the plaintiff and this contributed to the damage |
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Term
|
Definition
| although middlemen can escapes being held for negligence they can be held accountable with 402A. |
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Term
|
Definition
| unavoidably unsafe products are neither defective nor unreasonably dangerous if they are properly prepared and accompanied by proper directions and a proper warning |
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Term
|
Definition
One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect. Difference between this and 402A is the product does not have to be unreasonably dangerous.
Applies strict liability to manufacturing dfects. |
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Term
| Rules to Restatement (3rd) |
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Definition
Describes three types of defects it covers.
1. Manufacturing defects - product does not conform to intended purpose when product leaves
2. Inadequate instructions or warning- exist when reasonable instructions or warnings could have reduced the product's foreseeable risk of harm
3. Design Defect- a product is defective in design when its foreseeable risks of harm would have been reduced or avoided by a reasonable alternative design and the ommision of that design rendered the product not reasonably safe |
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|
Term
|
Definition
apply to sales of consumer products costing more than 10 dollars per item. If seller give written warranty that must declare if it is full or limited.
if full the warranty promises to:
1 remedy any defects
2 replace the product or refund it. |
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Term
| Misrepresentation (product liability) |
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Definition
| law allows for recoveies for misrepresentations made by seller of goods. The rule includes fraudulent, negligent, or innocent misrepresentations made by seller. Must involve a material fact about product. Product need not be defective, not made to public, and the plaintiff need not have justifiably relied upon it. Plaintiff must have suffered personal injury or property damage because of it |
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Term
|
Definition
| Based on the market share one holds. it allows for someone to file damages against an industry with identical products |
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Term
|
Definition
| usual UCC statute of lmitations for warranties is four years after the seller offers the defective goods to the buyer. In tort cases the application may be shorter depending on state law |
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Term
| Special limitations to Statute of Limitations |
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Definition
1 special statutes for product liability cases involving death, personal injury, or property damage (1-3 years after occurrence)
2 special time limits for delayed manifestation injuries
3 useful safe life defense
4 statutes of repose run 10-12 year periods that begins when the product is sold to 1st buyer. |
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Term
| Damages in product liability cases |
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Definition
1 Basis-of-the-bargain damages- (direct economic loss) the value of the goods as promised under the contract, minus the value of the goods as received. hardly awarded in tort cases, but will be in warrany if there was privity.
2 Consequential Damages- personal injury, property damage, indirect economic loss, noneconomic loss.
Tort cases normally can recover personal and property damages as well as forseeable indirect conomic loss. Warranty case with privity can recover personal + property damage, indirect economnic loss.
3 Punitive Damages- used to punish someone of wrong doing. awarded in tort cases, seldom is it awarded with breach of warranty |
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Term
| The No Privity Defense and Tort Cases |
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Definition
| in negligence can against a defendant if the loss was a reasonably foreseeable consequence of the defect. Depending on scenario bystanders and other distant parties may recover as well. |
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Term
| The No-Privity Defense and Warranty Case |
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Definition
Alternative a-c
a. does little to undermine traditional no privity defense
b. extends seller's warranty to any person who has suffered personal injury if it was reasonable to expect that person would use it.
c. extends the warranty to any person and to those suffering injury in general. |
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Term
|
Definition
| a clause in the sale contract whereby the seller attempts to eliminate liability it might otherwise have under the theories of recovery. |
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Term
|
Definition
| clause attempting to block recovery of certain damages. |
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|
Term
| Implied Warranty Disclaimers |
|
Definition
Implied warranty of merchantability (can be oral)
1 seller must use the word merchantability
2 make the disclaimer conspicuous if it written.
implied warranty of fitness
1 a seller must use a writing
2 make the disclaimer conspicuous. |
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|
Term
| Other ways to disclaim implied warranties |
|
Definition
2-316(3)(a) may disclaim busing such terms as "with all faults," "'as it" and "as they stand".
2-316(3)(b) the buyer's inspection of the goods or her refusal to inspect may operate as a disclaimer.
2-316(3)(c) may be exluded or modified by course of dealings, course of performance, or usage of trade. |
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Term
| Unconscionable Disclaimers |
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Definition
| a restriction on disclaiming implied warranties. not used in a commercial sense, but it is used more for individual consumers |
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Term
| Magnuson-Moss and Disclaimers |
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Definition
| if full warranty is given seller may not disclaim, modify, or limit the duration of any implied warranty. with a limited warranty the seller may not disclaim or modify any implied warranty, but may limit its duration to the the duration of the limited warranty if done conspicuously. |
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Term
| Express Warranty Disclaimers |
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Definition
| quite difficult to disclaim an express warranty. warranty and a disclaimer should be read consistently if possible, but that the disclaimer must yield if such a reading is unreasonable |
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Term
| Disclaimer of Tort Liability |
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Definition
Usually ineffective in cases involving ordinary consumers. however, some courts enforce such disclaimers where both parties are business entities that:
1 dealt in a commercial setting
2 had relatively equal bargaining power
3 bargained over the product's specifications
4 negotiated the risk of loss from product defects |
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Term
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Definition
| UCC section allows the limitation of consequential damages in express and implied warranty cases unless the limitation of remedy "fails of its essential purpose" or is unconscionable. |
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Term
| Traditional Defense in product liability |
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Definition
1 Product misuse
2 Assumption of Risk - plaintiff's voluntary consent to a known danger.
3 Contributory Negligence - defense in negligence case, but courts disagree if or when should be a defense in warranty and strict liability. |
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Term
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Definition
| traditional defense used to free defendant from all cost, however courts have been more likely to assign damages by amount done by each party. |
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