Stacey Heffernan
Business Law 160
October 28,2009
Case Study
Part One: Identifying Plaintiffs, Defendants, Theories, and Defenses
Plaintiffs
Cunningham
Defendant
Sues Total motors
(Manufacturer)
Theory
Negligence
In the making
of the actually
car.
Defense
Comparative negligence
(Cunningham was negligent
too).
Assumed risk-Cunningham
assumed the risk of a car
Unforeseeable- did not see
the defect causing the
accident
Reasonable standard of caretotal motors followed the
standard of care they were
supposing to.
Commonly Known dangerCunningham should have
known that a car is
dangerous.
Product /strict Assumption of Risk-show
Liability
that Cunningham knew of the
Was the car
defect and assumed the risk
safe enough
by driving the car
to drive
Product MisuseCunningham using the
product in a way that it is not
supposes to be used.
Comparative negligent
Knowledgeable UserCunningham should have
known of the defect because
it was common.
Statue LimitationCunningham had a time limit
that he did not meet.
Implied/
Statue Limitationsexpress
Cunningham’s time was up.
Warranty
Wrongful
Negligence- Mr.
death
Sues Speedy Motors
(dealership)
Cunningham was negligent
as well. He should take some
liability because the
manufacturer was not the
only one that was negligent.
Assumption of risk- they
knew that there was a risk to
a car and they knew that it
could be dangerous.
Negligence
Comparative negligence
(Cunningham was negligent
too). Cunningham did not
follow his duty of care
Assumed risk-Cunningham
assumed the risk of a car
Unforeseeable- did not see
the defect causing the
accident.
Reasonable standard of caretotal motors followed the
standard of care they were
supposing to.
Commonly Known dangerCunningham should have
known that a car is
dangerous
Product /strict Assumption of Risk-show
liability
that Cunningham knew of the
defect and assumed the risk
by driving the car
Product MisuseCunningham using the
product in a way that it is not
supposes to be used.
Comparative negligent
Knowledgeable UserCunningham should have
known of the defect because
it was common.
Statue LimitationCunningham had a time limit
that he did not
Wrongful
Negligence- Mr.
death
Cunningham was negligence
so they should not be blamed
for wrongful death.
Wrongful
death
Assumption of risk- they
knew that the car was
dangerous.
Negligence
Hearse – someone over heard
the dealer saying that the car
was safe. It was not in
writing and the Cunninghams
never said that the dealer said
it.
Comparative-they were both
negligent
Comparative- Mr.
Cunningham broke his duty
of care too.
Common Knowledge- they
should have known about the
car and the defect.
Comparative- if they were
doing something to distract
Mr. Cunningham.
Assumption of risk- they
knew the risk of cars.
Common Knowledge
Negligence
Assumption of risk
Negligence
Assumption of risk
Implied/
express
Warranty
Statue Limitation- they did
not file a complaint or suit in
time. The warranty no longer
covered them.
Fraud
Other Car
Potsy/Ms.
Weber/Chaci
Sue Cunninghams
Negligent
Total motors/Speedy
Motors
Negligent
Cunningham
Negligence
Total motor/Speedy
motors
Product /strict Assumption of Risk
Liability
Product Misuse
Comparative negligent
Knowledgeable User
Statue Limitation
Wrongful
Negligence
death
Assumption of risk
Part Two: Theories
Negligence
Negligence- The failure to exercise the standard of care that a reasonable person would
exercise in similar circumstances. In order for negligence to occur there are four elements
that have to exist 1.) The defendant has to owe a duty of care to the plaintiff. The duty of
care means that if we live in a society with other people there has to be some action,
which are acceptable, and some that are unacceptable. Also some actions have to be
within reason. The most important fact is that people are allowed to act the way the want
to as long as they are not hurting anyone else. If a person fails to follow the duty of care
meaning they do not use reasonable care they maybe subject to committing a tortuous act.
In some cases a person can be careful but someone still ends up getting injured the court
may still consider the act negligent.
2.) The defendant has to breach (break) that duty. If the person who owes a duty of care
to another person but they break that duty care meaning that they do not use the
reasonable person standard then they are being negligent. The reasonable person standard
is when a court considers how a reasonable person would act in the same situation. The
reasonable person standard is usually objective. The degree of care differs from case to
case. It ultimately comes down to the judge or jury deciding how a reasonable person
would act in that particular situation.
3.) The plaintiff suffered a legal injury that can be recognized. The plaintiff must have
suffered some time of loss, injury, wrong, or invasion of protected interest. If there is no
harm or injury from the negligence in question then there is anything to compensate for.
In negligence a person can receive compensatory damages. Compensatory damages gives
a money award that equals the value of the injuries or damages sustained by the negligent
party.
4.) The injury has to be due to the fact that the defendant’s breach of duty caused the
injury that the plaintiff suffered from. The injured person must prove that because the
defendant did not use the duty of care that they were suppose to the plaintiff ends up
getting injured. There are two different things a person has to consider when deciding
causation is
1.) Causation in fact meaning that if the defendant did not act they way he or she
did then the injury or damage would have not occurred. In most cases people use the, but
for test it determines whether there was a cause and effect relationship.
2.) Proximate means legal cause; exist when the connection between an act and
an injury is strong enough to justify imposing liability. In most cases foreseeability is
connected to proximate cause meaning that the injury that occurred has to be able to be
seen because of the negligence. How much duty of care is owed depends on whom the
person is and whom the person is that they owe the duty of care to. If the person is a
landowner they owe a duty of care to warn business invitees of possible dangers.
Professionals such as doctors are held to the duty of professionals meaning they are held
to the same duty of care of others in their professions. They are suppose to have the same
knowledge as others in their professions there they are held with the same duty as others
in their professions. (Clarkson 144-147).
The key factor in negligence is that there has to be a duty of care and that duty of care is
broken. The reasonable person standard determines the duty of care. In a case that
involved negligence a person can receive compensatory damages and punitive damages.
Compensatory damages as stated before are intended to compensate or reimburse a
plaintiff for actual lose. Compensatory damages are separated into two categories. One
category is special damages to compensate the plaintiff for quantifiable monetary losses,
such as medical expense, lost wages, and benefits, extra costs, the loss of irreplaceable
items, and the cost of repairing or replacing damaged property. The second is general
damages compensate individual not companies for the nonmonetary aspects of the harm
suffered like pain and suffering. Other things that general damages may account for are
loss of a husband or wife, loss of a spouse and the pain that comes with that. If you have
enough proof that the person is negligent then that is enough to prove they are guilty
(57AmJur.2d.487).
Negligence offense is giving a person a defected item knowing that it is defected and not
taking care of it before selling it to a person. (Black’s Law Dictionary 6 th ed. 1990). This
means that if the seller sells a product to a customer knowing that there is a defect and
does not take the care to fix the problem, they are being negligent because they have a
duty to fix the defect before selling the product because the defect can result in an injury
or loss.
Comparative Negligence- distributive among parties. The plaintiff has to have a less
percentage of negligence in order to receive damages. Most states have replace
contributory negligence with comparative negligence (Black’s Law Dictionary 6th
ed.1990). In order for comparative negligence to come about both parties have to be
negligent. This can also be used as a defense. If the defendant thinks that the plaintiff was
also negligent then they can both be responsible and that the defendant’s negligence was
not the only reason for the injury but the plaintiff’s negligence also lead to the injury.
Negligence per se is when the injury occurs and a statue is broken. The statue that is
broken has to be a statue that if it were followed would have prevented the injury.
(Black’s Law Dictionary 1990).
Equipment and Condition of Vehicle- owner should check vehicle to make sure it is safe
before driving on the highway.
Negligence with products- a person is not always held liable even if the product was
inspected. If the products defect is not visible then the seller or manufacturer may not be
held liable for damages caused by the defect (36 Ind. Dig. 250). If the defendant has a
justifiable excuse for violating the statute then the defendant is not held liable. However.
If the person the excuse is unacceptable then the defendant is held liable.
In Indiana:
Manufacturer or sellers
(34-10-5-1)
A manufacturer or seller is not negligent if:
1.) It was safe when the product was designed, manufactured, packaged, and labeled;
2.) The product complied with the United States or Indiana standards
(34Burn’sRev.St.407).
Negligence with motorist- section 74 of Indiana law says a motor vehicle is not a
dangerous product. The operation of the motor vehicle is not negligent. All drivers have a
duty to not be negligent. They should consider the safety of others. It is the duty of the
motorist to avoid collisions but they are not absolutely liable if an accident does occur
(3aI.L.E141). Negligence has to have caused the injury in question according to section
26 (3AI.L.E.212).
Statutes in Indiana for manufacturer:
Manufacturer/seller duty of Care
The duty of care for the operator to make sure the breaks are in good working condition
(9Burn’sRev.St.144-145). The manufacturer has the duty of care to make sure that
everything is in working condition. They are held to the same duty of care as all the other
manufacturers.
Warranty
Express- the seller gives the buyer the reason to believe that the quality, description, and
performance are what they are supposed to be. It is a promise that is made by the seller as
part of the agreement. (Black’s Law Dictionary 1990). It is also a statement that conforms
to any declaration, description, and any sample or mode of the good. (Clarkson 459-460).
An express warranty may include a provision imposing a duty on the buyer in case of
breach, such as an obligation to notify the seller of defects within a stated period of time,
or may specify how eh buyer must care for the product or use it (57AmJur2d487). In
most express warranties a buyer agrees to buy a product after seeing a sample. Therefore
if there is a sample and the agreement were made with agreement that the sample was
either exactly like or very similar to the sample. The product that the buyer is getting
should be like the sample when it is delivered to the buyer (67AmJur.2d.77)
&(26Burn’sRevSt. 103).
Full-The cost of the car if there is a defected part. (Black’s Law Dictionary 1990).
It covers the consumer’s satisfaction if the product is defected. It requires full repairs to
the defected part of the car. The repairs have to be made in a reasonable amount of time.
If they are not the consumer can either get a refund or a replacement without charge. The
free repair only applies if it was not caused by damages or misusing the product.
(Clarkson 465).
Implied- is assuming that something is safe unless they say otherwise. The person should
have enough knowledge about the product. The buyer has to be relying on the buyer for
safe and suitable goods (Black’s Law Dictionary 1990). Implies warranties are made
every time a merchant makes a sale (Clarkson 461).
The U.C.C. on implied warranties:
1) Unless excluded or modified (Section 2-316), a warranty that the goods shall be
merchantable is implied in a contract for their sale if the seller is a merchant with respect
to goods of that kind. Under this section the serving for value of food or drink to be
consumed either on the premises or elsewhere is a sale.
(2) Goods to be merchantable must be at least such as
 (a) Pass without objection in the trade under the contract description; and
 (b) In the case of fungible goods, are of fair average quality within the
description; and
 (c) Are fit for the ordinary purposes for which such goods are used; and
 (d) Run, within the variations permitted by the agreement, of even kind, quality
and quantity within each unit and among all units involved; and
 (e) Are adequately contained, packaged, and labeled as the agreement may
require; and
 (f) Conform to the promise or affirmations of fact made on the container or label
if any.
(3) Unless excluded or modified (Section 2-316) other implied warranties may arise from
course of dealing or usage of trade. (UCC2-314)
If something is known a court will look at it as part of the warranty. For example if
something is suppose to be done before a product is delivered and the person fails to do it
they are held liable (UCC2-314 (3))
Cannot be breached unless it is defective. Implied warranty of fitness breached when
goods are not fit for purpose they are made for. The U.C.C requires that upon delivery the
good was unfit for fitness. Does not require proof of defect (57AmJur.2d77). The buyer is
relying on the knowledge of the seller. The seller is held liable for the defect even if they
don’t know because it is their duty to know. Will recover damages whether the seller
knows of the defect or not. Implied warranty of fitness- The seller needs knowledge
about the product they are selling. If it outside of what they are supposes to know they are
not held liable (67AmJur2d120-121).
In Indiana statue:
Warranty- (26-1-2-318) If a third party is injured by a good under implied or express
warranties they have the same rights as the owner (26 Burn’s Rev.St.122).
Implied Warranty- You think that you are getting what you paid for according to the
sample or what the seller says (26Burn’sRev.st.103).
Implied Warranty of Fitness(26-1-2-315)
The buyer is relying on the seller’s skill and judgment to give them a suitable good
(26Burn’sRev.St.109).
The U.C.C
Standard recovery third part beneficiaries
If a third party is injured by the breach of a warranty, the third party is capable of
recovering damages under both express and implied warranties. The third parties have the
same rights as the buyer of the car (26 burns’ rev. st. 122).
Liability
Strict- responsibility despite circumstances (Black’s Law Dictionary 1990). No matter the
situation if someone is injured a person is still held liable even if they use the upmost
care.
Restatement of torts
The manufacturers liability to an injured party can be unlimited if:
1.) The product must be in a defective condition when the defendant sells it
2.) The defendant must normally be engaged in the business of selling that product
3.) The product must be unreasonably dangerous to the user or consumer because of
its defective condition
4.) The plaintiff must sustain physical harm to self or property by use of the product
5.) The defective condition must be the proximate cause of the injury or damage
6.) The goods must not have been substantially changed from the time the product
was sold to the time the injury was sustained.
A product contains defect when the product departs from its intended design even
though all possible care was implemented in the preparation of the product. A
product that has a design defect creates an unreasonable risk to the user. A
product is “defective in design when the foreseeable risk of harm posed by the
product could have been reduced or avoided by the adoption of a reasonable
alternative design”(Restatement of Torts, section 402A).
Strict Liability in Indiana
Design Defect
(34-20-2-2)
1.) The seller has exercised all reasonable care in preparing the product.
2.) If the seller fails to warn the buyer of a defect or problem the seller/manufacturer
is held liable no matter the care they took in preparing the product
(34Burn’sRev.St.405).
Product- responsibility for defected or hazardous product, which threatens the
consumer’s safety no matter what. Applies to the seller no matter if they warned the
buyer or not. Compensates everyone involved. (Black’s Law Dictionary 1990).
Product Liability in Indiana
(34-20-2-1)
The Plaintiff must prove that the product is defective. The defect must make the product
dangerous (34Burn’sRev.St.405).
Joint Liability
(34-20-7-1)
If there is more defendant being held liable they are responsible for their potion of fault.
However, sometimes one defendant may not be held liable at all (34Burn’sRev.St.433).
In Indiana:
Liability of Manufacturer or dealer
1.) The seller has to warn the buyer if they know that there is a defect that is potentially
going to hurt the buyer.
2.) The seller is selling the product.
3.) If the product gets to the consumer without the problem being fixed the seller or
manufacturer can be held liable without warning the consumer of the defect. Holds true
when:
1.) The seller has done all it can with care in order to get the product ready for sale.
2.) The product does not have to be sold. Manufacturer is held strictly liable for injuries
that are caused by defect. The defect has to be the proximate cause. (3AI.L.E20).
Under Indiana law special liability of seller of product special for physical harm to a user.
The consumer must establish that the defendant put the product into the market or was
involved in the sale of such a product that was defective. When it leaves the sellers hands
the product cannot change and the defect must be the proximate cause of complaint or
loss. The plaintiff needs sufficient evidence to prove this. (39BInd.Dig.343).
Crashworthiness Doctrine- In Indiana the defected product is the proximate cause and has
to be foreseeable in order to collect damages under strict liability. The Plaintiff has the
duty to prove that the defect enhanced his injury (39B Ind.Dig. 349).
Liable under guest statue- the driver is not held liable for death injury, or damage of
passenger unless he or she is paid or is doing it purposefully. (3AI.L.E.160).
Manufactures do not need to make thing things perfectly safe however; they need to
make them reasonable safe to prevent or guard against unreasonable injuries.
Manufactures and sellers are held to the same duty of care (63AmJur.298).
Motorist Liability- In Indiana a motorist can be held liable for guest and occupant in
another car if the motorist was being negligent. It does not just have to be the negligence
of the motorist but it can also be the negligence of the driver plus a third party’s
negligence (3AI.L.E.214).
If a product has a defect and the owner knows about the defect they are held liable
(3AI.L.E.144).
Statue in Indiana:
Unfair Practice
Failure to indemnify and hole dealer harmless
(9-23-3-17)
It is unfair practice to exclude liability of the dealership when problems arise with
defects. The responsibility is not just on the manufacturer (9Burn’sRev.St583).
Wrongful Death
When the death of one is caused by the wrongful act or omission of another, those
represent the deceased may hold liable the person(s) responsible. The purpose of this is to
create a way for the survivors of the deceased to be compensated for the losses sustained
by the death and to enlarge liability of a person causing death through a wrongful act (10
I.L.E. 860).
Permits recovery for medical expenses, funeral expenses emotional losses, cost of
therapy, and loss of wages (10 I.L.E 17).
Can only be maintained if the deceased leaves behind a widow and/or dependent
children. The Jurisdiction is usually determined by the location of the wrongful death (10
I.L.E. 28). It must be brought in front of a court within in a two year time period of its
occurrence or it will not be sustainable under the statute of limitations, which sets a time
limit (10 I.L.E 29). The plaintiff has the burden of proof meaning that they have to prove
negligence (10 I.L.E 38).
In Indiana:
Punitive damages usually cannot be revered unless it is expressly stated. Punitive
damages are normally awarded in cases that involve cruelty (10 I.L.E 56).
Indiana Code
Designated family members means a family member has been nominated as a successor
under a written document. If no document has been filed, the term states that the person’s
spouse, child, and grandchild. parent, or sibling becomes appointed and qualified
personal represented trustee of decreased franchise (4 I.C. 867).
Fraud
Must prove:
“ Including a representation of material facts which was false and which was
made scienter or with fraudulent intent and which deceived the victim who relied
threreon, and which resulted in damage or injury.
Positive proof is not essential to prove a fraudulent intent but such intent may be
inferred from the facts and circumstances in evidence” (14 I.LE. 253-254).
Part 3: Issues
1.) Did the manufacturer fail to follow his duty of care?
The manufacturer had to do everything in his power to make the car safe to drive.
They also have to be held to the same standard as other manufacturer. This was an
issue in Dudley Sports Co v. Schmitt. In this case the question was if the
manufacturer who made a baseball product was negligent or not. The court came
to the conclusion that the manufacturer should be held liable because if they say
that they are a manufacturer than they are held to the same standard of care as
other manufacturers (Dudley Sports Co. v. Schmitt 151 Ind. App. 217; 279 N.E.
2d 266; 1972 Ind. App. Lexis 827). This case is very similar to the Total Motors
case because there was a manufacture of the car and they have the duty to make
the as safe as possible. So if the Total Motors failed to meet this duty then the
Cunninghams and everyone else has the right to sue for negligence. Total motors
could however say that they did not know of the defect and that they did
everything they were supposed to in order to make the car meet the Indiana
standards. Total motors could also say that Cunningham did not take the duty of
care that he was suppose to as a driver. They could also say that Cunningham and
everyone else assumed the risk of the car when they all decided to ride or drive it.
2.) Was the accident foreseeable?
In order to held liable for negligence they had to see the defect as ending in a
harmful injury. Can’t be held liable if it not foreseeable. In order for the
manufacturer to be held liable they had to see the defect as causing the accident. If
they did not see the defect causing any issues then they will not be held liable. If
the Total Motors made the car and knew about the defect and they knowingly put
the car into the market then more than likely the accident is foreseeable. However,
total motors could argue that they did not know about the defect or they could say
they knew about the defect but did not think that the defect would cause that
much of an issue so they decided not to fix.
3.) Was it the proximate cause?
The defect would have to cause the injury that the plaintiff is complaining about.
The proximate cause is the legal cause; exist when the connection between an act
and an injury is strong enough to justify imposing liability. In order to be
negligent the defect would have had have to cause the injury. It must meet the
“but for” test. If there was no defect would the accident still have happened? Is
the question that is going to have to be answered. The Cunningham and all the
passengers are going to have to make a case stating that if the defect would have
been fixed then the accident would have not occurred therefore the deaths and
injuries would not have occurred either. They will have to make sure they have
enough evidence to prove that the defect was the proximate cause. Which in some
4.)
5.)
6.)
7.)
cases is going to be hard because Total Motors could argue with Arthur and
Chuck that they did not have a seat belt on and that is what the proximate cause of
the injuries and deaths. The Cunninghams could come back and say that there
were other people in the car that did have seat belts on and they did not survive
the accident and if they did survive they still had injuries that occurred.
Was Mr. Cunningham negligent as well?
Mr. Cunningham could have not been careful enough. As a drive he has a duty of
care to hold. He should have been safe. He could have been speeding or he could
have known of the defect and still drove the car with the defect. This would be
misuse of the product. He could have been driving the car in way that they defect
became more prevalent. Total motors is going to try and argue that they should
not be completely liable for everyone’s injuries because the defect might have not
been the only reason that the accident and injuries occurred. They are going to try
to say that Mr. Cunningham was negligent as well. They could argue that he was
not paying attention to the road or he was not driving like a reasonable person
would drive. The Cunninghams could come back and say that Mr. Cunningham
was not being negligent and he was doing what he was supposed to do. He did try
to apply the brakes and the car continued to accelerate. The Cunninghams could
also argue that Mr. Cunningham acted like any other reasonable person would in
the situation that he was put into.
Is there enough evidence for the person to prove the defendant was
negligent?
In order to prove negligence there has to be enough evidence. The plaintiff has to
have enough evidence to show that the defendant was completely negligent and
that the plaintiff was not negligent at all. If the plaintiff cannot prove without a
doubt that the defendant was negligent then the defendant can say the plaintiff
was negligent or the defendant can come across as not being negligent at all when
he in fact could have been. There has to be enough evidence that without a doubt
Total Motors was negligent in the design of the product. The Cunninghams will
have to show that the way that Total Motors made the car negligently meaning
that they did not make the car in order to meet the standards in Indiana.
Should the seller have knowledge of the defect?
The seller does not always have to know about the defect to be held liable.
However in some cases the seller has to know of the defect in order to be held
liable. The Cunninghams could argue that the seller had to warn them about the
defect. The Cunnighams would also argue that as a seller they should know about
the defect because they are held to the same standard as the manufacturer and
should know the same things about the car that the manufacturer does. However
Speedy Motors could argue that they did not know about the product because
Total Motors did not tell them about the defect. However in most cases this will
not hold up because the seller and manufacturer are held to the same standards so
they should both have looked at the product and made sure that there was nothing
wrong with the product before selling it.
To what extend does the warranty cover?
The warranty might have not covered if the people got into an accident. It may
have not covered what happened when the defect caused a problem. Total Motors
will try and argue that the warranty does not cover the other passengers in the car
because they have no deal with them. They will try and argue that the
Cunninghams should be held liable because they are the ones that let the
passengers into their car. The Cunninghams however can come back and say that
they did not think that the car was unsafe because a car is not considering a
dangerous product. They will also argue that the manufacturer is suppose to make
a safe product and that the others in the car probably knew about a warranty so
therefore they should be cover too. Warranties are supposed to extend to
passengers and bystanders if an accident does occur.
8.) If the product was defective when it left the dealership?
In order to be held liable the product sometimes has to prove that the product was
defective when it left the seller’s hand. If it was not defective then the seller can
argue that buyer misused the product that caused the defect to occur. The
Cunninghams are going to argue that the product was defective not only when it
got to the dealership but also when it was sold to the Cunninghams. In order for a
manufacturer or dealership to be held liable the product has to be defected when it
is sold to the customer. If the costumer misuses the product then the manufacturer
may not be held liable. The dealership could argue that Mr. Cunningham did not
use the car in the way that he was supposed to therefore the defect occurred
because of Mr. Cunningham’s actions and not the actions of Total Motor or
Speedy Motors.
9.) The intent of the operator?
Did the operator intent to hurt the people in his car? If the operator had intent to
do harm then the operator was negligent and is held liable for damages that occur.
If the operator of the vehicle intended to hurt the passengers in the car and hit the
other car then he will be held liable but if he did not intended to hurt anyone then
he cannot be held liable. If Mr. Cunningham was taking all the precaution then it
will be hard for the others involved in the accident to prove that he intended to
hurt them. Mr. Cunningham can say that he did not intent to hurt anyone. The
others involved in the accident could argue it doesn’t matter about the intent he
had while driving if he knew about the defect and did nothing about it then they
could say that they intended to hurt them because he did nothing to fix the defect
and he did not warn them about the defect. Mr. Cunningham could argue that they
assumed the risk by getting into the car with him. He could argue that they should
have the dangers that go along with riding in a car.
10.)
Did the seller know that the buyer was relying on their knowledge?
The seller must know that the buyer is relying on the information that they are
giving the buyer. In most cases this is not an issue because as a seller you should
know that the buyer will believe what you say because the seller should have the
knowledge of the product that they are selling. If however the injury occurs
because of something that they are not supposed to have knowledge about then
they cannot be held liable. Cunningham could argue that he was relying on what
the seller told him so he did not think that he had to inspect it to make sure that it
was safe. He could also argue that the as seller Speedy Motors should have the
right information and it should be the truth about the product. Once again Speedy
Motors could argue that they did not know about the defect and even if they knew
that Mr. Cunningham was relying on their information they told him everything
that they knew about the product. They could also argue that he should not always
take the word of an expert because something could go wrong after the product
leaves their hands so Mr. Cunningham should have gone and inspected it himself.
11.)
What was the time limit on the warranty?
Warranties most of the time have a time limit on how long the manufacturer is
still held liable. It also covers how long the owner of the product has to report a
defect. If the owner does not report the defect in that time period then the
manufacturer of the product can no longer be held liable. Motors could argue that
Mr. Cunningham was not under warranty now. This makes them not liable for the
things that happened due to the defect. Mr. Cunningham could argue that the
defect did not show up until now so he should still be compensated because it is
still the manufacturers fault because they are the ones that made the product. Total
Motors could argue that if the defect did not show up until now then Mr.
Cunningham misused the product making the defect come show up. They could
say that if Mr. Cunningham would have not misused the product then the defect
would have not shown up and the accident would not have occurred so they
should not be held liable because Mr. Cunningham misused the product. Mr.
Cunningham could argue that he was not misusing the product and he was acting
like any other reasonable person was.
12.)
Would the statute that was broken prevent the injury?
In order for a person to sue for negligence per se there has to be a statute that was
broken. Not only does a statute have to be broken but the statute has to be a
statute that if not broken it would have prevented the injury. Mr. Cunningham and
the others would have to prove that if Total Motors had followed the statute then
the accident would not have occurred by breaking the statute Total Motors should
be held liable. Total Motors could have an excuse as to why they broke the
statute. They could say that they thought the way the made the car made it safer to
drive. Total Motors could argue that they did not know they were breaking a
statute however ignorance to the law is never and excuse. Total Motors does not
really have that strong of an argument in this issue because while they could come
up with and excuse it is the judges choice as to whether that excuse is a good
enough one to break a statute especially if that statute is put into place in order
to keep things like accidents from happening.
13.)
Was the product unfit when it was delivered?
In implied warranty it is required that the product be defected upon delivery. If it
is not then manufacturer is not held liable. Mr. Cunningham and everyone else
could argue and say that the product did not fit the standards when it was
delivered so it should have been inspected and sent back to the manufacturers.
Speedy Motors and Total Motors could both argue that they product was safe as
far as they knew. They could say that they inspected the car but since the defect
was not visible then they should not be held liable. Total Motors can argue that
they thought that the product was safe upon delivery. They could argue that the
car might have become defective on the way to the dealership however this would
be a hard point to prove and the Cunninghams could say that they made a product
that in the end it became defective so they should be held liable no matter what
because a defect usually occurs because of something the manufacturer did.
Part four: Apply the law you have identified
Negligence
Cunningham/Potsy /Mrs. Weber/ Chaci/Other Car V. Total Motors
Mr. Cunningham/Potsy/ Mrs. Weber/ Chaci/Other Car argument- the argument for
them would be that Total Motors knew about the defect and did nothing to fix the
problem. According to Black Law Dictionary if a manufacturer knows about a
product that is defective and does nothing to try and fix the problem then the
manufacturer is being negligent because they are not doing their duty (Black Law
Dictionary). They argue that Total Motors duty as a manufacturer is to make a safe
product that. In negligence there has to be a duty of care and that duty of care has to
be broken in order for the plaintiff to sue for negligence. In the case of Wellington v.
Reynolds, filed a suit for negligence. The plaintiff claimed that the defendant had a
duty of care owed to the plaintiff. The plaintiff continued and said that the defendant
broke that duty of care due to the breach of the duty of care the plaintiff ended up
being injured (Wellington v. Reynolds, 97 N.E. 155, 177 Ind. 49). In the Total Motors
case Total Motors has a duty. It is the duty of the manufacturer to make sure that
the breaks and other safety features are in working condition.(9 Burn’s Rev. St. 144145). Total Motors owed a duty of care to not only Mr. Cunningham but also the
passengers and the other car. They had the duty to make sure that the safety
features were in good working condition. The Cunninghams could say that Total
Motors breached their duty because they gas pedal did not work and there was no
safety feature put in to fix this problem. Total Motors must also has a duty to have
knowledge of the defect. The way that they can find the defect is by inspecting the
product even if the product is inspected but the defect is not visible then Total
Motors could still be held liable because it goes back to the fact that Total Motors
has a duty to make a car that is safe to operate. Negligence with products say a
person is not always held liable even if the product was inspected. If the product’s
defect is not visible then the seller or manufacturers may not be held liable for
damages caused by the defect (36 Ind. Dig. 250). This can only hold true if they have
a justifiable excuse for not following the statute. The Cunninghams could argue that
the upon inspection the defect should have been able to be seen. As a manufacturer,
Total Motors, has the duty to warn about defects even it hurts their business in the
end. If Total Motors has the knowledge of the defect and fails to warn the seller or
the buyer then they risk being sued for punitive damages along with other
damages.Breach of Contract: punitive or exemplary damages for breach of contract,
other than contracts to marry and actions on statutory bonds(84 A.L.R. 1345
).
Another element that has to deal with negligence is that it has to be the
proximate cause. The plaintiffs could argue that if the manufacturers would have
fixed the problem then the accident would have not occurred therefore the losses
and injuries would have not occurred either. The Cunninghams could plead that if
the safety feature were put in then they would have not been in the accident. If
there is a missing part then it can be seen as the proximate cause (3A I.L.E 212).
Manufacturers are supposed to act as a reasonable person but they are also
held to the same standard as other manufacturers are. The Cunninghams could
claim that if Total Motors was acting as a reasonable person and was acting like any
other manufacturer then they would have seen the defect and fixed it. There also
has to be sufficient evidence that the injuries were caused by defect. In the case of
Cunninghams and Total Motors it is clear that there is enough evidence to show that
the injuries the occurred were caused because of the defective gas pedal.
In order for the Cunninghams and the others that were affected by the defect
to win the case for negligence, they are going to have to show that Total Motors has
a duty of care owed to their customers. It does not matter if they knew about the
defect or not because if they hold themselves to the same standards as other
manufacturers they need to make cars that are safe to drive. They breached their
duty because they let the product go into the market while it was defective. If total
motors tries to get Cunningham for negligence. Cunning ham can argue that he acted
as any reasonable person would by applying the brakes. However, the breaks did
not work because of the defect that Total Motors should have fixed. In order for
Total Motors to claim contributory negligence they will have to prove that Mr.
Cunningham has a duty of care and he also breached his duty of care (Black’s Law
Dictionary 6th ed. 1990).
Argument for Total Motors
Total Motors will also have things that they can argue against in negligence.
The biggest one that they can say is comparative negligence. Total Motors can claim
that they were not the only ones that were negligent. They can say that Mr.
Cunningham was not acting as a reasonable person. Total Motors could claim that
Mr. Cunningham had a duty to the people who were traveling with him in the car as
well as other drivers on the highway and he breached that duty by not operating the
car in the proper way. They could also claim misuse of the product. Total Motors can
say that Mr. Cunningham did not use the car in the correct way. Therefore he
breached his duty of care as an operator. All drivers have a duty to not be negligent.
They should consider the safety of others. It is the duty of the motorist to avoid
collisions (3a I.L.E. 141). Total Motors could argue that as the driver of the car Mr.
Cunningham had the duty to avoid the collision. He also had the duty to make sure
the people traveling with him were safe. Therefore they could argue that it was Mr.
Cunningham’s duty to make sure that all the passengers were wearing a seatbelt.
Total Motors could say that Mr. Cunningham was negligent because Chuck and
Arthur were not wearing a seatbelt. The only element that is lacking in this case is
the proximate cause but Total Motors could say that due to Mr. Cunningham’s
negligence with not making sure that all his passengers were wearing seatbelt was
the proximate cause because if Chuck and Arthur were wearing seatbelts they could
have survived the accident and had minimal injuries if any. Total Motors could bring
up the “It may be necessary and proper to instruct the jury on the issue of
contributor negligence, concerning the use of seatbelts where there is evidence
indicating a causal relationship between the injuries sustained by the plaintiff and
the failure to use seatbelts” ( 3A I.L.E. 370). With these elements present Total
Motors could claim comparative negligence. According to Indiana Digest
comparative negligence is “ when negligence of two persons contributes to an
injury, injured party may sue either or both…” (6 Ind. Dig. 2d 134). Therefore if
Total Motors claims that Mr. Cunningham was driving reckless or was not doing his
duty as an operator they could try and say that it was not just them being negligent
but it was also Mr. Cunningham resulting in comparative negligence. Total Motors
will try and claim this because then they do to pay, as many damages and their
reputation will not be as damaged.
Total Motors could claim that they were not negligent in the design of the car.
They could claim that they did not know of the defect therefore they could not warn
or tell the seller or the buyer of the defect because they themselves had no idea that
the defect existed. If they did not know of the defect they have a chance of not being
liable for the deaths and injuries that occurred. They could also argue that as far as
they knew the car met the Indiana standards. A manufacturer or seller is not
negligent if 1.) It was safe when the product was designed, manufactured, packaged,
and labeled. 2.) The product complied with the United State or Indiana standards
(34Burn’sRev.St.407). If Total motors can prove that the car was safe when it was
designed, manufactured, packaged and that it met with the standards of the United
States or Indiana then they can have a chance of not being negligent. Total Motors
would have to argue that as far as they were concerned the car was safe. It will be
hard to prove this. Total Motors could also argue that Mr. Cunningham should have
gotten the car serviced and inspected after the car was sold to him. If he would have
had it serviced there is a possibility that the defect would have been found.
Speedy Motors versus Cunningham
Speedy motors being a seller of total motors cars is held to the same
standards as Total Motors. Therefore the argument that the Cunninghams made for
Total Motors will hold true for Speedy Motors as well because as a seller Speedy
Motors should have inspected the car and made sure that it was safe as well when
they received the car. Cunninghams could claim that Speedy Motors should produce
a car that is safe to drive. They should take the same actions as the manufacturer
does. Total Motors could say that Speedy Motors was negligent in the fact that they
did not warn Mr. Cunningham about the defect even after he asked about it. The
seller said that the problem was fixed. Mr. Cunningham being a reasonable person
believed the Speedy Motors because they should have the knowledge about the
defect and if they do not they are being negligent. The Cunninghams are the only
ones that could sue Speedy Motors for negligence because they are the only ones
that really made a deal with Speedy Motors. Mr. Cunningham bought a car from
them therefore they made a sale and along with the sale there are duties that are
required from Speedy Motors since they are the sellers of the car.
Speedy Motors argument would be similar to Total Motors. They could argue
that they could not warn Mr. Cunningham about the defect because Total Motors did
not let them know about the defect therefore they could not warn Mr. Cunningham.
They could also argue in this case that they should not be held liable because they
rely on the manufacturer to make a safe car and that they should not have to inspect
it again because they believed that it was safe. This argument would probably not
hold however because as a seller of the car they should have inspected the car again.
Speedy Motors could argue that they did inspect the car and the defect was not
visible therefore they could not fix the defect in order to make the car safe to drive.
They could also just like Total Motors claim that Mr. Cunningham was negligent as
well. Speedy Motors is very similar to the arguments made by Total Motors.
Potsy/Mrs. Weber/Chaci/Other Car v. Cunningham
Potsy, Mrs. Weber, Chaci, and the other car can sue Mr. Cunningham for
negligence. They could argue that Mr. Cunningham should have inspected the car to
make sure that it was safe to dive before inviting them to ride in his car with him.
They could also claim that Mr. Cunningham was negligent in the case of knowing
about the defect. If Mr. Cunningham knew about the defect and failed to tell the
others then he was being negligent because he is putting other people’s lives in
dangers. Negligence with motorist states that all the drivers have the duty to not be
negligent. It is the duty of the driver to avoid collisions (3A I.L.E. 212). If Potsy, Mrs.
Weber, Chaci, and the other car can claim that Mr. Cunningham was being
negligence then they can win the case. Another way that they could argue that Mr.
Cunningham was negligent is to claim that he did not act as a reasonable person
would have in the situation they were put in. They could claim that when Mr.
Cunningham realized that the car was accelerating he did not do anything to try and
stop the car therefore the car hit the other car because Mr. Cunningham did not try
and stop the car and it was not the defect that caused the accident. This would also
cover the proximate cause issue. If they argue that Mr. Cunningham not doing
anything when he realized that the car was accelerating then they can also claim
that Mr. Cunningham hit the other car and they ended up getting hurt because Mr.
Cunningham did nothing. Mr. Cunningham is held to the same standard as a
reasonable does and in this case a reasonable person would try and stop the car
once they realized the car was accelerating instead of slowing down.
The Cunninghams are not going to just let the other people in the accident
claim that Mr. Cunningham was negligent. The Cunninghams are going to come back
and make an argument. They are going to argue that Mr. Cunningham acted as a
reasonable person would. They are going to claim that Mr. Cunningham upon
realizing the car was not slowing down but was actually accelerating tried to stop
the car but his efforts did not work because of the defect that was involved with the
car. As for the proximate cause issue they are going to argue that the proximate
cause was the defect and had nothing to do with how Mr. Cunningham acted
because as far as they know Mr. Cunningham acted the way that he was supposed to
in the situation that he was put in. They would claim that Mr. Cunningham tried to
apply the breaks but the breaks did work like they were supposed to so the car
instead of slowing it accelerated causing Mr. Cunningham’s car to hit the other car
resulting in the deaths and injuries. Therefore he was not negligent because the
element that would be lacking would be proximate cause. If Mr. Cunningham was
not negligent and acted like a reasonable person then his action cannot lead to the
proximate cause of the injuries and deaths that occurred. The Cunninghams could
also claim that the passengers in the car assumed the risk when they got into the
car. The passengers should have known that the a car can be a dangerous product
that can lead to an accident. Therefore if they got into the car knowing this then they
assumed the risk of the car and accepted the consequences when they got into the
car.
Liability
Strict
Cunningham/Potsy/ Mrs. Weber/ Chaci v. Total Motors
As far as they know the product was defective when they bought the car.
Total Motors is in the regular business of selling this vehicle or product. The
product must be in a defective condition when the defendant sells it (Restatement of
Torts, section 402A). Because of the faulty gas pedal, the product is dangerous
because of the inability to drive the car. In the restatement of torts it says that the
product must be unreasonably dangerous to the user or consumer because of its
defective condition. The plaintiffs could argue because of the defective gas pedal the
car was unreasonable dangerous. According to the Indian law a motor vehicle is not
a dangerous product (3a I.L.E. 141). Therefore if the Cunninghams claim that the car
was dangerous there would have to be something wrong with the car in order to
make it dangerous because a car made the right way is said to not be dangerous.
Because of the defective product the outcome was an accident that ended in deaths
and injuries. The defective gas pedal was the proximate cause of the deaths and the
injuires because it would have been in working order then the deaths and injuries
would not have occurred. In the restatement of torts it says that the defective
condition must be the proximate cause of the injury or damage (Restatement of
Torts, section 402A). If the Cunninghams claim that the defect caused the deaths
and injuries that occurred then they could say that it is the responsibility no matter
what the manufacturer did to compensate for the injuries and deaths under strict
liability. Strict liability is the responsibility despite circumstances (Black’s Law
Dictionary 1990). They did not do anything to the car themselves to make the gas
pedal not work properly. They could argue that the car was defective when they
bought it and nothing that they did made the defective appear. The Cunninghams
could argue that they handled the car properly and how a reasonable person would
therefore the defect would have had to have been there when the purchased the car.
Total Motors are the experts on the vehicle therefore they should be held liable for
the deaths and injuries that occurred in the accident.
Total Motors does not want to be held liable for the defects because it could
potentially ruin their company. So Total Motors is going to claim that they did not
know of the defect therefore they should not be held liable because they had no
knowledge of the defect. They can also argue that the product upon delivery was
safe and if it was not safe they did not know that it was not safe. Total Motors could
also argue that Cunningham being a knowledgeable person should have know that a
defect could be present especially since there had been problems before with the
car. For Chuck and Arthur Total Motors could argue that they should not be held
liable because they were not wearing seatbelts so the defect may have not been the
proximate cause. The proximate cause in this case would be that they were not
wearing seatbelts and due to this fact they died.
Cunningham v. Speedy Motor
The argument for the Cunninghams would be the same for Speedy Motors as
it was for Total Motors. Speedy Motors however has a duty to warn the
Cunninghams about the defect and Cunninghams can say that they failed to do this.
In the Dudley Sports Co. Inc. v. Schmitt case they argued that Dudley Spots failed to
warn about any defect on the product. The product ended up being defected which
lead to the injury of the Schmitt (Dudley Sports Co., Inc. v. Lawrence Robert Schmitt
151 Ind. App. 217;279 N.E. 2d 266; 1972 Ind. App. Lexis 827). This cause had to do
with a product that was defective just like the case with the Cunninghams.
Speedy Motors argument would be the same as Total Motors in the case of
strict liability due to the fact that they are held to the same standard. The only thing
that they can say is that they did not know about the defect because Total Motors
did not tell them about it so their failure to warn was not their fault but Total Motors
fault.
Product
Cunningham/ Potsy/ Mrs. Weber/ Chaci/ Other Vehicle v. Total Motors
The product was defective making the product dangerous and the proximate
cause of the injuries and deaths of the accident. According to Black’s Law Dictionary
product liability is the responsibility for defected or hazardous product, which
threatens the consumer’s safety no matter what. Applies to the seller no matter if
they warn the buyer or not (Black’s Law Dictionary 1990). According to Burn’s the
plaintiff must prove that the product is defective, The defect must make the product
dangerous ( 34Burn’s Rev.St 433). The Cunninghams can argue that the product
upon purchasing it was defective and because cars are not a dangerous product that
the defect made the car dangerous. If there is a question of whether the defect made
the car dangerous the Cunninghams can say that defect caused the accident there it
made the vehicle dangerous. The Cunninghams can argue that Total Motors put the
car into the market knowing that there was a defect. They can also argue that the
product got to them without the defect being fixed. According to Indiana Digest “if
the product gets to the consumer without the problem being fixed the seller or
manufacturer can be held liable without warning the consumer of the defect (39 Ind.
Dig. 343). The plaintiffs can argue that the defect was the proximate cause and even
though Chuck and Arthur were not wearing seatbelts they would have still probably
died because there were others in the car that had seatbelts on and they did not
make it. The plaintiffs can argue that if Total Motors knew about the defect they
should have seen the accident and seen it ended in the way it did. According to the
crashworthiness doctrine, in Indiana the defected product is the proximate cause
and has to be foreseeable I order to collect damages ( 3A Ind. Dig. 349).
Total Motors can come back and argue that they did not know about the
defect. Since they did not know about the defect they thought that it was safe to put
into the market. They let it get into the consumers hands because when they
checked it they did not see anything wrong with it. They can say that they did
everything they could in order to get the car ready for sale. According to Indiana
Digest the seller/manufacturer has done all it can with care in order to get the
product ready for sale (Ind. Dig. 343). They can even argue that if they had known
about the defect they did not see it ending in the way it did. They could say that they
thought that the defect would not cause big problems therefore they did not fix it.
They could say that they should not be held liable for the people in the other car.
According to motorist liability in Indiana a motorist can be held liable for guest and
occupant in another car if the motorist was being negligent. It does not just have be
the negligence of the motorist but it can also be the negligence of the driver plus a
third party’s negligence (3A I.L.E 214). Total Motors could argue that Mr.
Cunningham was being negligent and that lead to the accident. They can also argue
to get out of the others for product liability that they were negligent as well. They
could say that the others were distracting Mr. Cunningham while he was trying to
drive. In this way total motors can get out of product liability all together. They can
also argue that Mr. Cunningham knew about the defect therefore he is held liable. If
a product has a defect and the owner knows about the defect they are held liable
(3A I.L.E 144). Total Motors can argue that there should be join liability between
them and Speedy Motors because Speedy Motors sold the defective car. If there is
more than one defendant being held liable they are responsible for their portion of
fault ( 34 Burn’s Rev. St. 405).
Cunningham v. Speedy Motors
Cunninghams can have the same argument that they had for Speedy Motors
that they would have for Total Motors. Speeding Motors was the seller of the
defective car. They should have known that what they told them Cunninghams was
relying on their information to right. They can argue that Speedy Motors should
have checked the car when they received it. As a seller Speedy Motors is held to the
same standards as Total Motors.
Speedy Motors can argue that they did not know about the defect because
Total Motors did not tell them about the defect therefore they should not be held
liable for joint liability. They can also argue that they relied on Total Motors
information about the car because they are the one that created it therefore they
should know about any defect.
Warranty
Express
Cunningham v. Total Motors/Speedy Motors
Cunninghams can argue that they agreed to buy a car that was like the
sample. Express Warranty is the seller gives the buyer the reason to believe that the
quality, description, and performance are what they are supposed to be. It is a
promise that is made by the seller as part of the agreement (Black’s Law Dictionary
1990). The product that the buyer is getting should be like the sample when it is
delivered to the buyer (67 AmJur.2d. 77). The Cunningham could therefore argue
that the car did not conform to what Total Motors and Speedy Motors told them it
should be like. They can also argue that the car is not at all like the sample because
the car had a defect where the car that they actually agreed to get was not the like
the sample. If Total Motors or Speedy Motors said that the car was safe or if they
said that there was nothing wrong with the car. The Cunninghams could argue that
the product is supposed to conform to what they say because that is part of an
express warranty. The Cunninghams can also argue that Total Motors and Speedy
Motors should have told the Cunninghams about the defect when they found out
about it. An express warranty may include a provision imposing a duty on the buyer
in case of a breach, such as an onligation to notfy the seller of defects within a stated
period of time, or may specify how the buyer must care for the product or use of it
(57 AmJur.2d.77).
Total Motors and Speedy Motors could argue that they did not say anything
about the car being safe or the car conforming to anything that they said. They could
also argue that as far as they knew the car that they sold to the Cunnighams was like
the sample. If Total Motor or Speedy Motors did not know about the defect then they
would think that they were giving Cunninghams a car that was safe and it was like
the sample. They can also argue that Mr. Cunnigham being a reasonable person
should have realized that some of the things that were said by the seller was puffery
and should not be relied upon. As for finding out about the defect and then letting
the Cunninghams know, they can argue statute of limitations meaning that when
they found out about the defect the time had run up to tell the Cunninghams about
the defect.
Implied Warranty
Cunningham v. Total Motors/Speedy Motors
The Cunninghams thought that the car was safe because there were not told
otherwise. An Implied warranty is assuming that something is safe unless they say
otherwise the person should have enough knowledge about the product. The buyer
has to be relying on the seller for safe and suitable goods (Black’s Law Dictionary
1990). Cunningham could argue that Speedy Motors held themselves to a merchant
status therefore they should be held liable. There was implied warranty because if
there is a sell of goods then there is automatically an implied warranty. Under the
U.C.C unless excluded or modified (section 2-316), a warranty that the goods shall
be merchantable is implied in a contract for their sale if the seller is a merchant with
respect to good of that kind (UCC 2-314)). The Cunninghams could argue that before
the car was delivered it should have been inspected to see if the car was defective. If
something is known a court will look at it as part of the warrant. For example if
something is suppose to be done before a product is delivered and the person fails
to do it the are held liable (UCC 2-314(3)). The Cunninghams could argue that if
Total Motors or Speedy Motors delivered the car they could have found the defect
and therefore they could have warn the Cunninghams about the defect which would
have prevented the accidents and the injuries and deaths.A cause of action accrues
when the breach occurs, regardless of aggrieved party’s lack of knowledge of the
breach. A breach of warranty occurs when tender of delivery is made, except that
where a warranty explicitly extends to future performance of the goods and
discovery of the breach must await the time of such performance, the cause of action
accrues when the breach is or should have been discovered (Ind. Ann. Code 26-1-2725).
The Cunningham could argue that Total Motors and Speedy Motors breached the
implied fitness contract because the car was not fit for the driving. An implied
warranty of fitness is breached when goods are not fit for the purpose they are
made for. The U.C.C requires that upon delivery the good was unfit for fitness. Does
not require proof of defect (57 AmJur.2d77). The car had the defect when it got to
the dealership therefore it should have been sold because it was not fit for the
purpose of which it was made. A car is made to be something safe to drive since the
defect was present then the car was not fit for the purpose that most cars are made
for. The Cunninghams can argue that they were relying on Speedy Motors to provide
them with good information about the car because they are supposed to be the
experts on the car. Implied Warranty of Fitness the buyer is relying on the seller’s
skill and judgment to give them a suitable good(26 Burn’s Rev. St. 103).
Speedy Motors and Total Motors are going to try and argue the points that
the Cunninghams pointed out. They will however not be able to say there was not
implied warranty because there was a sale of goods and every time there is a sale of
goods there is an implied warranty. Speedy Motors can argue however that they are
suppose to be the experts but they rely on Total Motors for the information about
the car and since Total Motors did not tell Speedy Motors they did not have the
knowledge about the defect. Total Motors could argue that they did not know about
the defect therefore they should not be held liable. The only other thing they can
argue is that the product was not defective upon delivery to the dealership or to Mr.
Cunningham and therefore they did not breach the implied warranty. As for the
implied warranty of fitness they can argue that as far as they know the product was
fit for the purpose it was made for. They can argue that they inspected the car and
they believed that the car met the standards it was supposed to be and that the car
was fit for the purpose it was supposed to be.
Wrongful Death
Cunningham/Mrs. Weber/ Potsy/ Chaci v. Total Motors and Cunningham v. Speedy
Motors
Because of Total Motors and Speedy Motors negligence the defect resulted in
death. The deaths that occurred were not natural deaths and deaths that would have
not occurred if the defect were had to been fixed. When the death of one is caused
by the wrongful act or omission of another, those represent the deceased may hold
liable the person(s) responsible ( 10 I.L.E 860). The deaths happen because of Total
Motors and Speedy Motors. The defects were because of the defect the defect was
also the proximate cause of the deaths and injuries that occurred. If the defect had
caught during the making of the car the people who died because of it would still be
alive today. Death or personal injury- test or criterion of gross negligence or other
misconduct that will support recovery of exemplary damages for bodily injury or
death unintentionally inflicted (98 A.L.R. 267).
Total Motors and Speedy Motors would not really have a argument for
wrongful death. The only way that Total Motors can get out of part of it is to say that
the deaths of Chuck and Arthur were not because of the defect but because they
were not wearing seatbelts.
Fraud
Cunningham v. Speedy Motors
The Cunninghams can try and argue fraud. They can say that the information
that was given to them by Speedy Motors was not true. The Cunningham relied on
the information that Speedy Motors gave them and since they relied on them they
thought the car was safe and that is the reason why there is a case going on right
now because there were injuries and deaths the occurred. In fraud the Cunninghams
must prove: “Including a representation of material facts which was false and which
was made scienter or with fraudulent intent and which deceived the victim who
relied thereon, and which resulted in damage or injure. Positive proof is not
essential to prove a fraudulent intent but such intent may be inferred from the facts
and circumstance in evidence” (14 I.L.E. 453-454). The Cunnighams can argue that
someone over heard the salesperson saying that the vehicle was safe.
Speedy Motors can come back and say that the facts that Cunningham
omitted should be struck down because it is hearsay because it was over heard. The
Cunninghams are the only ones that can say that the salesperson actually said that
the car was safe but since it was over heard it should not be considered in this case.
Part 5:Decision
Negligence
Cunningham/ Potsy/ Mrs. Weber/ Chaci
Total Motors wins due to the fact there is not enough evidence to prove that
the defect was the not the proximate cause of the accident. The jury found that not
wearing the seatbelt could have enhanced the injuries to Chuck and Arthur. The
jury questioned whether the defect was the actual proximate cause of the accident.
Cunningham’s cannot prove that Total Motors did not use reasonable care in
manufacturing the vehicle. Although Total Motors owed a duty of care to the
Cunningham’s it cannot be proved that it was breached. In the Karczewski case it
deals with a defective automobile as well. The court decided that the manufacturers
was not negligent because it could not be proven for sure that the defect was the
proximate cause or if the accident occurred just because of the defect or if there
were other things in involved (Karczewski vs. Ford Motor Co. 382
F.Supp.1346D.C.Ind.1974) . The Karczewski case is very similar to the Cunningham’s
case because they both deal with a defected car and in both cases it cannot be
proven that the manufacturer knew about the defect or that they breached their
duty of care. Total Motors could of done everything that they could and defect could
have still occurred. Since everyone got in the car they assumed the risk. Since there
was no way of proving the defect, there is no argument for foreseeability. As far as
the court is concerned the car met the standards of Indiana when it was sold. The
product must comply with the United States or Indiana standards
(34Burn’sRev.St.407).
Cunningham v. Speedy Motors
Speedy Motors wins the case for negligence for the same reason that Total
Motors wins the case for negligence. Since Speedy Motors is held to the same
standard as Total Motors they were not negligent. It cannot be proven that they
were negligent. There is not enough evidence to prove that Speedy Motors was
negligent. It was not their duty to warn them about the defect especially if it cannot
be proven that Speedy Motors was negligent. While Speedy Motor might have no
inspected the car when they got the car it may not be their duty to inspect the car
because they are expecting Total Motors to provide them with a safe car and if it is
not safe then Total Motors should have let Speedy Motors know so they could warn
there customers. However, since Total Motors did not tell Speedy Motors that the
car had a defect they did not fail to warn because they did not know about the
defect. In the court opinion Speedy Motors did what they were suppose to and were
not negligent.
Chaci/Potsy/ Mrs. Weber v. Cunningham
Cunningham will win because it cannot be proven that he was negligent. He
acted as a reasonable person. He also did not breach his duty because of the
evidence that was presented it seems that Cunningham did try and prevent the
accident like he was supposed to do. He was not driving like a crazy person. He
applied the breaks when he realized the car was accelerating. And even though
Arthur was not wearing his seatbelt Cunningham is not liable for him because he is a
hitchhiker and a driver is not liable for picking up hitchhikers. Everyone assumed
the risk when getting into the vehicle. Also because of the guest statute he has no
duty to his passengers because he was not being paid by any of them. Liable under
the guest statute the driver is not held liable for death, injury, or damages of
passengers unless he or she is paid or is doing it purposefully (3A.I.L.E60). It cannot
be proven that Mr. Cunningham was doing anything wrong on purpose. The court
found that Mr. Cunningham acted as a reasonable person. There was no evidence
provided that made the court think that Mr. Cunningham acted unreasonable or that
he purposefully got into the accident. The court also found that since the passengers
got in the car they did assume the risk. While a car is not considered a dangerous
product a reasonable person would know that it is likely that an accident can occur.
Product/Strict Liability
Cunningham/Potsy/Mrs. Weber/ Chaci v. Total Motors
Product liability is hard to win in Indiana because it is hard to prove that the
product was defective when sold. Also no one can prove that Total Motors knew of
the defect. Most prove that there is a defect. They cannot prove the defect was the
proximate cause of the accident and that it may have been the misuse of the product
by Mr. Cunningham. The plaintiff must prove that the product is defective. The
defect must make the product dangerous(34 Burn’s Rev. St. 405) Cunningham may
have misused the product making the vehicle more dangerous. It is unknown
whether the defect actually enhanced the injuries. The plaintiff has the duty to prove
thtat the defect enhanced his injury (39B Ind.Dig.349). The plaintiff did not provide
enough evidence for the court to believe that the defect enhanced the injuries that
occurred. There are many other factors in this case that could have caused the
injuries to occur. The fact that some people were not wearing seatbelts could be
look at as enhancing the injuries. It can be said that if they were to have worn
seatbelts they would still be alive today. It can also be said that Mr. Cunningham
himself was being negligent because he did not make sure that everyone was
wearing a seatbelt. The consumers do not have enough evidence to prove that that
defect was the proximate cause. The plaintiff needs sufficient evidence to prove
proximate cause (39 Ind.Dig.343). Total Motors will win this case because of lack of
proof. Since there is lack of proof of whether or not Total Motors knew about the
defect then there is also lack of proof for foreseeablitiy of the accident. In Indiana
the defected product is the proximate cause and has to be foreseeable in order to
collect damages (39Ind. Dig.349). There is just not enough evidence to prove that
Total Motors knew about the defect. The seller/ Manufacturer has to warn the buyer
if they know that there is a defect that is potentially going to hurt the buyer
(39Bind.Dig343). It cannot be proven that Total Motors knew about the defect then
they had no duty to warn the Cunninghams about the defect therefore, Total Motors
cannot not be held liable for product liability or strict liability. This is similar to the
to the Latimer case. Latimer was trying to claim product liability because there was
a defective brake. However the court held that it could not be determined what the
proximate cause of the accident actually was. They believed that is could have been
because of “misuse” of the truck. Since there was not enough evidence the court
sided with General Motors saying that they should not be held liable (Latimer v.
General Motors corp. 535 F.2d.1020C.A.Ind. 1976).
Cunningham v. Speedy Motors
Speedy Motors will win because of the same reason that Total Motors won
the product/ strict liability case. There is not enough evidence to prove that Speedy
Motors knew about the defect. If they did not know about the defect then they could
not warn Mr. Cunningham about the defect and since the court cannot say that
Speedy Motors knew about the defect then they should not be held liable because
they did everything that they were supposed to. Once again Mr. Cunningham could
have misused the product, which lead to the defect showing up in the car.
Warranty
Cunningham v. Total Motor/Speedy Motors
Express Warranty
As far as Total Motors knew the vehicle that was sold was the same as the
sample. No one can prove that they may have known it was different from the
sample. It is promised that the will conform to what they say it is (Black’s Law
Dictionary). It cannot be proven that Total Motors or Speedy Motors promised that
the car conformed to anything. They never said that it was safe or that it was not
defective. Therefore the Cunninghams cannot win on express warranty because the
car was like the sample as far as Total Motors and Speedy Motors knew. There is no
way of proving that Total Motors or Speedy Motors knew that the car they sold to
Mr. Cunningham was not like the sample. Total Motors and Speedy Motors will win.
Since Total Motors did not say anything about the safety of the car, so Cunningham
cannot prove that it did not conform to what they said.
Implied Warranty
Cunningham will win. There was a defect so there was a breach of implied
warranty. Even though they do not know of the defect they will still be held liable
under implied warranty. Cunningham relied on the skills of Total Motors and
Speedy Motors to sell a product that is safe. Even though when the product was sold
it may have been safe it ended up with a defect. Cunningham can receive any
damages that are reasonable (Coyle Chevrolet Co. vs. Carrier). In this case the
plaintiff was given damages from implied warranty. Because the car was defected
he received damages. This case is very similar to the Cunninghams case. There is a
defected car. The Cunninghams will be reward damages for implied warranty. The
reason that the Cunninghams won implied warranty is because there is a defect and
even if Total Motor or Speedy Motors knows about it does not matter with implied
warranty. Breach of implied warranty does not require proof of defects
(57AmJur.2d77). The seller is held liable for the defect even if they do not know
because it is their duty to know (67AmJur2d120-121). Even though Total Motors
and Speedy Motors did not know about the defect they are still held liable because
they should have known about the defect according to the Indiana law about
implied warranty.
Wrongful Death
Cunningham/Chaci/Potsy/Mrs. Weber else vs. Total Motors
Total Motors will win. It cannot be proven that the defect was the proximate
cause of the accident. Allegation that death “was caused proximately by the
negligence of this defendant as aforesaid” is of itself insufficient to show causal
connection between negligence and death (Indiana Union Traction Co vs. Love).
Since they were not negligent they cannot be held liable for the deaths that occurred
whether they knew about the defect or not. There is not enough proof to connect
the defect to the deaths that occurred and for this reason the court cannot charge
Total Motors for wrongful death. Total Motor also did all they could in order to
make the car safe and since it cannot be proven that they knew about the defect
then the court cannot say they caused the accident. They did not act wrongfully as
far as the court can tell.
Cunningham vs. Speedy Motors
Speedy Motors will win. The same reasons as above for Total Motors. There is lack
of proof. There was not enough evidence provided to prove that the proximate
cause of the accident was the accident. Speedy Motors did not have a duty to warn
about the defect because they as far as we know did not know about the defect.
Speedy Motors and Total Motors are held to the same standard and since the court
cannot find Total Motors guilty of wrongful death then the court cannot blame
Speedy Motors for wrongful death. Once again it cannot be proven that either Total
Motors or Speedy Motors knew about the defect therefore it cannot be said that
either one of them acted wrongfully.
Chaci/Potsy/Mrs. Weber vs. Cunningham
Cunningham will win. As far as the court can tell Mr. Cunningham acted as a
reasonable person. He tried to prevent the accident from happening and since he
did this then the court cannot find him guilty for wrongful death. There is just not
enough evidence to prove that he was the reason the accident occurred. It cannot be
proven that Mr. Cunningham’s action were wrongful. When the death of one is
caused by the wrongful act or omission of another….(10I.L.E. 860). Since they
cannot prove that Mr. Cunningham’s actions are wrongful the court cannot charge
him or his family with wrongful death. Especially in the case of Arthur because he
was a hitchhiker and Mr. Cunningham owes him the least duty because hitchhiking
is illegal.
Fraud
Cunningham vs. Speedy Motors
Speedy Motors wins because of hearsay. The only evidence about what
Speedy Motors promised about the quality of the car was heard by someone else
therefore that evidence will not be allowed because of hearsay. There has to be clear
evidence of fraud and in this case there was not clear evidence proving that Speedy
Motors was fraudulent.
Part 6: Comparing
Negligence
Negligence is a pretty straightforward theory. Therefore few ethical issues
exist with negligence. Negligence keeps society safe because everyone has a duty of
care to someone else. That duty is to make sure they act as a reasonable person
would. It is reasonable difficult to sue for negligence because then everyone would
sue for negligence like in the case above it was hard for the Cunninghams to prove
that Total Motors was negligent. There was a duty to be upheld but it could not
have been proven that there was a breach because of the situation. Negligence is
hard to prove because of the proximate cause factor. In most cases it is hard to know
if someone’s negligence is actually the proximate cause. This could be an issue with
negligence. It should be less difficult to prove negligence. I believe there should be
some compensation for the injuries if it can be proven that someone is a little bit
negligent because even if they were not totally negligent a little bit of negligence can
cause great injuries. I believe that if there is a defect even if the product is inspected
and it is not visible the manufacturer should still be held liable. It should be easier to
get comparative negligence because the injured person should be compensated
somewhat for the little negligence that was contributed by the other party. I do not
believe that the person should have knowledge of the defect or the injuries that
could occur because they are professionals and should have knowledge no matter
what. If they do not have the knowledge then they should be consider as being
negligent. Even if them not having the knowledge that they should would not be
considered negligent they still have a duty to compensate for the injuries because
someone did end up hurt and whether or not the defect was the proximate cause
should not be the question because it is a possibility. A driver of a car should not be
considered negligent if people in his car do not have seatbelt on if they are legally
adults because adults should have the knowledge to know that by not wearing a
seatbelt they are running the risk of being injured if the driver were to get into an
accident. If however it is a parent traveling with a child and the child is not wearing
a seatbelt then the parent should be held liable for negligence because they have a
duty to make sure that children that are under their care are safe. The Second
Restatement of Torts would extend liability for negligent manufacture to anyone
whom the manufacturer should expect to be endanger by probable use (California
Law review). Meaning that anyone that uses the product of a negligent
manufacturer should get some sort of compensation.
Product/Strict Liability
I do not agree with how hard it is to sue for product liability. If it can be
proven that there is a defect then the manufacturer should be held liable for the
injuries even if it cannot be proven that the defect caused those injuries. The new
watchword is the cost of the product should bear the blood of consumers (California
Law Review). The design standards should be changed so a manufacturer is held to
a higher standard. The Traffic and Motor Vehicle Safety Act reflected a definite
public judgment on the inadequacy of existing design standards (California Law
Review). This statement is basically saying that the standard of design right now is
not doing the job. That manufacturers are getting away with making defective
products without consequences because it is so hard in Indiana to prove that the
manufacturer knew about the defect. I believe that if there is a defect then the
manufacturer should be held liable for product liability because it is the duty of a
manufacturer to make a safe product and obviously Indiana law is doing nothing
about manufacturers making defective products. A manufacturer should be held
liable for a defective product whether it was the proximate cause of the injury or not
because a defective product is a defective product and manufacturer should be
punished for a defective product so the next time they will know to inspect the
product more thoroughly to make sure the product is safe for usage. The
manufacturers make enough money in order to compensate for injuries that occur
from a defective product. The line beyond which a product becomes “defective” is
drawn by the industry. There appears to be no reason why industry standards
should determine the actionable quality of goods (California Law Review). This
statement basically says that the industry should not determine if a product is
unsafe or defective. I believe that there should be a third party that decides if a
product is reasonably safe. The third person should be able to collect damages as
well (California Law Review). They should be able to collect damages because they
were put into danger as well. They do not have the duty to produce the safest car
possible. This should not be the case (California Law Review). A manufacturer
should have the duty of care to produce the safest car possible that way if something
does happen the defect may not be as severe. A manufacturer should want to
produce the safest car possible so they do not get sued for problems with their
vehicles. If manufacturers make defective vehicles then they can be held liable and if
word gets out that they produced a defective car then they will lose business.
Therefore it would be in the manufacturers best interest to want to produce the
safest car that they possibility can. In cases like Campo v. Scofield and Evans v.
General Motors Corporation the big issue in these cases should be whether or not the
risk was unreasonable, not whether it was their fault (California Law Review). A
court should not a decide a product liability case on whether or not it was latent or
patent( California Law Review). It should be decided on the risk that the plaintiff is
taking. The defendant cannot say that they assumed the risk when they got into the
car because they did not know about the defect therefore they should not be held
liable for assumption of risk unknowingly. I believe that is ethical wrong that it is so
hard to get product liability because it tells business that it is ok to make defective
products and there will be no consequences. It can be said that it is easier to collect
damages on product liability in California-A California jury's $4.9 billion judgment
against General Motors to compensate survivors of a Chevrolet Malibu's fiery crash
(Automotive News).
Warranty
There are not many issues with warranty. Overall Indiana has a good law for
warranties. The fact that a warranty is based on a sample is a good idea because it
holds the manufacturer up to a standard that they have to meet if they do not want
to get sued for anything. It is also good that every time you buy something you get
an implied warranty because it holds the manufacturer and seller liable for things
that are covered by that warranty. The seller should be held to some sort of
standard and a warranty holds a seller to that standard by making them liable for
certain things. A full warranty is also a good idea because it makes the seller think
about what they are saying. Anything that they say the product better conforms to
that or else they could be hit with a lawsuit. The time limit on warranties are a good
idea because if there was no time limit then people would be suing all the time for
things that happened to their cars as they were just getting older and have nothing
to do with actually problems with the car. Maybe for the dealership and
manufacturers sake there should be more investigation to make sure that the owner
held their end of the warranty up. In the case Porsche v. Rim there was an issue with
the warranty Porsche’s lawyer’s made a good statement:” Porsche has not had an
opportunity to inspect the vehicle. He also said Rim didn't properly maintain the car
as required by the warranty.” (Porsche returns to court). Implied warranty how it is
set up right now the plaintiff does not even have to prove that there was a defect
they automatically just win. Which could be an ethical issue because then people
could just start suing manufacturers saying that there was something wrong with
their car and more than likely they will end up getting money for it because they do
not actually have to prove that there is something wrong with their car. Under
warranty the court should look and see if the owner is keeping up with what they
are supposed to do and if they do not keep up their end of the warranty then neither
one should get money for the accident. In the case of the Cunninghams they did not
even have to show that there was a defect with the car in order to get compensated
for implied warranty. I believe that the Cunninghams should have shown that there
was a defect. Overall warranty does a good job of protecting consumers if there is a
defect because they do not have to prove that there is actually a defect and the court
does not look to see if they did anything wrong. There should however be more
elements that make up an implied warranty so that the dealership and
manufacturer may have a fighting chance at not having to compensate for their
products. However the fact that everything else that you can sue for in an
automobile accident like the Cunninghams they cannot really get compensation for
anything because it is so hard to sue for the other theories. Indiana probably
thought that it was best that the people suing for automobiles accident get some sort
of compensation. I do not believe that the other people in the car accident should get
compensated because they did not make a deal with the dealership therefore the
dealership has no duty to them. Indiana makes this part of the implied warranty law.
People who are involved in the accident cannot get compensated for implied
warranty because they did not make a deal with anyone and they assumed the risk
when getting in the car.
Wrongful Death
I do not agree with wrongful death in Indiana. I believe that it can cause some
ethical problems because it goes back to product liability. People once again have to
prove that it was actually the manufacturers fault. I believe that if there is a defect
with the product then the manufacturer who made the product should also be held
liable for the death regardless of whether the defect caused the deaths or not. There
should be more money given to the survivors that are left behind. As of right now it
is hard for people to get wrongful death and if the do it is very little money. In
Sweden people can get compensated more than in Indiana. Another proposal being
looked at is whether courts should deduct a fixed amount of 25 per cent from a payout for personal living expenses that the victim of the wrongful death would have
run-up had they lived (The Sctosman). I believe that more should be given for the
families that lost someone due to wrongful death. I agree that the people who were
left behind should be compensated to what they were before because if there is a
defect that wrongfully took a person from them then they should be compensated
and not have to suffer. I know that no amount of money will bring the person back
but it will help the family members know that the person who did this to their lost
one is suffering too. I believe that people should have an easier time getting
wrongful death. I do not believe that people should have to prove that the other
person is totally responsible if the other person that may have caused the death was
involved in the little bit they should have to pay for a least a little bit of it. In Texas
there was a case for wrongful death that was due to a defect. The court found that
the manufacturer was held liable for wrongful even though the manufacturer tried
to argue differently (Automotive News). The plaintiff should not have to prove that
the defect was the cause of the death if the person can prove that the deaths could
have been caused because of the defect then the manufacturer should have to pay
something. It is unethical for a business to be able to make a defective product that
has the potential to kill someone and then get away with it when actually kills
someone. The business can just keep thinking that they can make defective products
and it is okay because they will not have to pay anything when someone ends up
dead. The manufacturer should also be liable if they did not know about the defect
because the defect is still present and it killed someone. In Indian we have wrongful
death but it is hard to get it because you have to prove that it is solely that one
person’s fault and it had nothing to do with anything else. The family should get
some of kind of compensation for the loss that they are suffering it is unfair for them
to have to suffer and them to know that the person that is responsible is not being
punished and does not have to pay any money for the defective product they have
made. Statute of limitation is a good idea because then you cannot randomly just sue
for something that happened ten years ago. I like that we have a law for wrongful
death because the survivors deserve to get some kind of compensation. The courts
are just very strict about when people will get compensated for wrongful death. It is
hard to prove that it is totally one person’s fault because a lot of other factors can go
into because that is just how the world works. It is not like manufacturers do not
have the money to pay for it (California Law Review).
Fraud
I agree with fraud because people have to have an intent in order to be fraudulent. I
also agree that the person who is suing should hear things about a product rather
than another person because another person can make things up and it is harder to
prove that they are wrong. It also acceptable that the buyer should not believe
everything that the seller is saying because as a buyer they should realize that the
seller is trying to get them to buy the product so they are going to talk it up.
However I do believe that if the seller knows about the defect and then lies about
then it is fraud and the plaintiff should not have to ask specifically about the defect
because it is the duty of the buyer to warn them about any defects. I also agree that
the buyer should be able to rely on the buyer to extend. The seller is held to a certain
standard, which is a good thing because we cannot all be experts on everything.
Therefore it is reasonable for a buyer to rely on the seller for good and truthful
information. The seller should also know that the buyer is relying on their
information so they should no talk they product up too much because then they
could be sued for fraud. If the seller does say something that is false I think that it is
a good idea for them to it with intend because if they did not intend to lie about the
product then they really did nothing wrong because they were just trying to sell
their product. There really no-good way to be able to sell a product without using
puffery and it is hard for the buyer to distinguish between things that are puffery
and things that are right. It is a give and take relationship. The buyer has to realize
that some things that the seller says is puffery while the seller has to realize that the
buyer is relying on them for good and truthful information. In the end fraud is a
good law because it keeps both the buyer and the seller in check.