Warranties are promises or assurances that goods will meet certain criteria or standards.  Goods includes food and drinks sold by  restaurants. Warranties are Express and Implied . The Law of Warranties as stated below evolved during the mid 20^th century as did the Doctrine of Res Ipsa Loquitur in response to the difficulties that Plaintiffs were experiencing in attempts to recover in negligence.

The law of warranty affords a means of recovery for injuries and damages resulting from the use of goods that may be utilized in addition to or as an alternative to negligence or strict liability in tort.  Warranty rules today are the product of legislative efforts - written enactment- as manifested in the Uniform Commercial Code Article 2 which has been adopted by all of the states.

 Implied Warranties arise as the result of a sale of a good. 

The implied warranty of merchantability arises on sale of a good by a merchant.  The implied warranty of merchantability provides that goods are fit for their ordinary intended use.

Explain what implied warranty if any will arise where you

purchase a good at a garage sale where no conversation

occurs between a buyer and seller who have never met.

was not from a Merchant

No implied

warranty of merchantability will arise since the purchase  

Note: The Implied Warranty of Fitness for a Particular Purpose

can arise on a sale by ANY SELLER – merchant or not.

Goods subject to the Implied Warranty of Fitness may or may not be subject to the Implied Warranty of Merchantability.

 State the Requisites for a warranty claim/s whether for breach of express or implied warranty

Plaintiff must allege:

The existence of a warranty(express or implied or both)

That product did not live up to warranty

That injuries/damages were proximately caused by the breach of warranty (Components of “proximately caused” are set forth below)

That injuries/damages were caused in fact by breach of warranty

That injuries were a foreseeable result of breach of warranty

. Disclaimers of Warranty take away promises made by implied warranties. When a merchant in the business of selling goods sells a good, an implied warranty arises that the good is merchantable even though the merchant has no conversation with the purchaser and no writing respecting the good manifests any promises.  If the merchant does not desire for an implied warranty to exist, the merchant is required to take positive action orally or in writing to indicate that no implied warranty exists.

See p 410. All implied warranties are disclaimed by:

(1)Language such as “AS IS” or “WITH ALL FAULTS” or similar language

(2)Defects that reasonable a person would notice at time of purchase or by refusal of seller’s invitation to inspect

(3)Writing that states no implied of merchantability in conspicuous print

(4)Course of dealing, course or performance or usage of trade

Note that the above are means of disclaiming implied warranties.  Express warranties may not readily be disclaimed. Circumstances where a court will allow such are very limited.  In part the thinking is that since express warranties require conduct on the part of a seller, the seller should not have manifested such conduct if seller did not desire to make an express warranty. 

. All implied warranties are disclaimed by:

(1)Language such as “AS IS” or “WITH ALL FAULTS” or similar language

(2)Defects that reasonable a person would notice at time of purchase or by refusal of seller’s invitation to inspect

(3)Writing that states no implied of merchantability in conspicuous print

(4)Course of dealing, course or performance or usage of trade

Note that the above are means of disclaiming implied warranties.  Express warranties may not readily be disclaimed. Circumstances where a court will allow such are very limited.  In part the thinking is that since express warranties require conduct on the part of a seller, the seller should not have manifested such conduct if seller did not desire to make an express warranty. 

Example of a Disclaimer of Warranties

10. Pat purchased a walnut chair from Furniture One that was labeled AS IS. The chair almost collapsed the first time Pat sat in the chair due to a cracked leg. Explain what warranty claims, if any, Pat may have against Furniture One.

Pat has no implied warranty claims since the chair was labeled "AS IS" which effectively disclaims all implied warranties.

State when the statute of limitations for a breach of warranty claim arises.

A breach of warranty occurs when goods are made available to the buyer whether the buyer knows of the breach or not unless an express warranty refers to a future date. 

The statute of limitation for warranty claims is 4 years from date of breach - See 2-725 of the UCC.

developed by attorneys, business enterprise, legal scholars and judges during the mid 20^th Century.  Thus Warranty claims are statutory - written enactment.

Defendant may claim

(1) Comparative negligence

(2)Assumption of risk

(3)Misuse

Misuse occurs where the plaintiff uses the product other than in accordance with instructions or for purposes other than those for which product was designed.

Strict Tort Product Liability is liability without regard to fault for manufacturers and sellers of products where a product unexpectedly causes injury or damage because of defects in design, manufacture or labeling.

Why strict tort product liability evolved beginning around the mid 20^th century.

Increasingly Res Ipsa Loquitur proved to be inadequate as a means of recovery. The reasons given for not relying on Negligence or Res Ipsa Loquitur to prove negligence to determine liability of a manufacturer were articulated as follows:

1)consumers are insufficiently skilled to judge the soundness of a product contained in a sealed package.

(2)manufacturers instill confidence in products by advertising and promotion.

(3)the cost of an injury and the loss of time or health may be an overwhelming misfortune to an individual plaintiff. 

(4)the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. 

(5)manufacturers can anticipate some hazards and guard against the recurrence of others.

The Law of Warranty posed difficulties because of the Statute of Limitations running from the date that goods are made available to the buyer.

Appellate courts of the states are primarily responsible for strict tort product liability rules.

Applicable where plaintiff is aware or has reason to be aware of danger and uses product anyway. Ex plaintiff receives a severe electrical shock while using an electric mower with a broken power cord or where plaintiff uses a product for purposes that label says could result in serious harm or injury.

  Defamation Defined

Defamation occurs where (1)FALSEHOODS are

(2) PUBLISHED by defendant  to third parties that

(3) INJURE THE REPUTATION OF THE PLAINTIFF.

Publication is the communication of Falsehoods by

Defendant to Third Parties

Newspaper, magazine, book publishers, radio

and TV stations are liable for defamatory

statements communicated since they are edited.

Generally bookstores, libraries and Internet

Service Providers are not liable for defamatory

statements communicated since they do not

know or have reason to know of defamatory

statements.

As a general rule defamatory statements not published/communicated to third parties by defendant are not actionable by plaintiff. Generally defamation claims exist only where the author of defamatory manifestations communicates defamatory statements to third parties. Defamation claims are to protect the plaintiff from publication by the defendant.

To facilitate free and open discussion of public affairs, defamatory statements regarding public figures - persons in the limelight are privileged if they are made without malice.   Malice occurs where defendant acts with actual knowledge of the falsity or with reckless disregard of the truth(had reason to doubt truth of statements). Proof of malice(that defamation intended) requires proving not only the requisites for defamation, but also that the defendant acted with knowledge of the falsity or with reckless disregard of the truth. Thus it is more difficult for persons in the limelight to succeed with defamatory claims.  Persons considered to be in the limelight include elected public officials as well as sports figures, entertainers and others who find themselves in the spotlight.

Plaintiff must allege

(1)Defendant published untrue statement respecting Plaintiff’s products, services, property, or business reputation

(2)Defendant knew statement was untrue or acted with reckless indifference

(3)Plaintiff suffered economic harm

Requisites for a Compelled Self Publication Claim

1. Falsehoods

2. Communicated PRIVATELY by Defendant to Plaintiff

3. Communication of falsehoods by the PLAINTIFF UNDER

PRESSURE FROM A POTENTIAL EMPLOYER

4. The Discharging Employer who communicated the falsehoods

to the Plaintiff privately knew or had reason to know that the

discharged employee would have to repeat the falsehoods to a

prospective employer

5. The Plaintiff failed to obtain employment or obtained a lesser

job at a lesser salary

A qualified privilege to publish what may amount to a falsehood

exists

(1)where the defendant publisher is acting in good faith

(has good reason to believe that published is fact) and

(2) where the potential harm to the public is equal to or

exceeds the potential harm to the plaintiff.

The law proscribes intentional interference with parties in the

process of negotiating contracts.  To establish a claim P must show

  1. The existence of a business relation.

2. That defendant knew of the business relation.

3. That defendant intentionally interfered by improperly

inducing or causing a breach or termination of the relation.

4. That defendant's improper or unjustified

interference resulted in injury to the plaintiff.

Whether Licensee or Invitee the following is becoming the rule

15.Invitees include business customers and delivery persons. In addition users of public parks, beaches, swimming pools and libraries are licensees.  Property owners must exercise reasonable care for safety of invitees against known dangers or dangers the property owner should be aware exist. Some states classify social guests as licensees and some as invitees.  

TRESPASSING AND CHATTELS(PERSONAL PROPERTY) AND CONVERSION

16. Conversion is the intentional exercise of control over the personal property(chattels) of another without consent. Such includes unauthorized use of another’s personal property obtained with consent, or obtaining another’s property by fraud, theft, purchasing  stolen property, withholding property, destruction or alteration of property.   Conversions are trespasses.   Stealing property from a retail store is conversion as well as trespassing.  If taking of possession was with permission, conversion occurs with unauthorized use or failure to return.

Requisites of an Emotional/Mental Distress Claim

  Plaintiff must allege

distress or that he knew of or should have known that

emotional distress was the likely result of his conduct

(2) that the conduct was extreme and outrageous –

beyond the bounds of decency and intolerable

(3) that acts of defendant were the cause of plaintiff's distress,

(4) the emotional distress sustained by plaintiff

was severe, and such that no reasonable person

could be expected to endure

Generally employees do not have claims for Invasion of

Privacy against employers for monitoring employee e-mail

and use of employer information systems.

The law does not recognize an expectation of privacy for

Employee use of employer provided information systems.

The employer owns the computers and the employee owes

a duty of loyalty to the employer to act in the best interest

of the employer.  Use of e-mail for personal affairs is a violation

of such duty.  The duty of loyalty is also breached by sending

of e-mail that could result in claims against the employer such

as Discrimination claims for sexual, racial or religious harassment.

Respecting the freedom of speech claim, First Amendment freedom

of speech claims are not applicable to private employers.