/wEPDwUKLTc4MT
ed
24229153
Week 3: Negligence, Product Liability, Warranties, and Really Hot Coffee - Discussion
Breach of Warranty (graded)
Arvo Lake, a retired 71-year-old man, bought an air conditioner in May. The unit was
installed and operated according to the manufacturer's specifications. Unbeknownst to
Lake, the unit contained a hole in the refrigeration system that allowed Freon, the
coolant, to escape from the unit. By August, the unit had ceased cooling, and Lake's
residence reached a temperature of at least 96 degrees Fahrenheit. The heat caused
Lake to suffer from hyperthermia, which caused circulatory failure and then death. The
executor of Lake's estate sued the manufacturer of the air conditioner for damages
resulting from breach of warranty.
Which warranties, if any, has the manufacturer of the air conditioner breached?
For a manufacturer to be liable for consequential damages caused by a breach of
warranty, the consequential damages must be foreseeable to the manufacturer.
Was Lake's death a foreseeable consequence of the air conditioner's failure to operate
properly?
Responses
Responses are listed below in the following order: response, author and the date and time the
response is posted.
Response
410325086,409764
Author
406485825
Date/Time
0
Week 3 Discussion 1
- Legal
Professor Devine
Claims and
Defenses
11/7/2012 8:55:35 AM
Class: When an individual is injured, there are often several possible
legal claims that can be brought against the wrongdoer.
The law of product liability is about ensuring that consumers have
recourse if they are injured by an unreasonably dangerous defective
product. Manufacturers must understand their potential liability in
the event their products are defective and personal injuries occur as
a result. The law of negligence is about ensuring that individuals or
entities that do not adhere to a "reasonable standard of care" can
be held liable for harm they cause. Last, the law of warranty
protects consumers and holds product manufacturers responsible for
standing by their product warranties.
As you look at the Arvo Lake situation, what legal claims do you
believe his estate can file on his behalf? Provide support for your
answer. Are there different claims that can be brought since he died
versus merely suffering injury?
Ginger
410325086
406485825
RE: Week
3Discussion
James Pha
1 - Legal
Claims and
Defenses
11/14/2012 9:29:24 PM
Modified:11/14/2012 9:32 PM
From the reading of chapter 10, I believe that Lake's estates can file base on Product
Liability Under Section 402A. As stated in chapter 10:
Restatement § 402A: 402A. Special Liability of Seller of Product for Physical Harm to
User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the
user or consumer or to his property is subject to liability for physical harm thereby
caused to the ultimate user or consumer, or to his property if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change
in the condition in which it is sold.
The most common types of product liability cases are based on the following types of
defects:
1. Designdefects
2. Dangersofuseduetolackofwarningsorunclearuseinstructions
3. Errorsinmanufacturing,handling,orpackagingoftheproduct
If the manufacture knows of this product defect, they should have redisgn the cooling
system to prevent this type of failure system like Lake's case here. Depending on
where you want to go with this case, I do believe that there are other avenue that you
can take this case and make a claim.
Jennings, Marianne M.. Business: Its Legal, Ethical, and Global Environment, 9th ed..
9. VitalSource Bookshelf. South Western Educational Publishing, , Wednesday,
November 14, 2012.
<http://online.vitalsource.com/books/9781133170624/page/344>
409845670,409982
409764669
406485825
RE: Week
3Discussion
Antonia Whittler
1 - Legal
Claims and
Defenses
11/13/2012 6:47:14 PM
Prof. Devine and class,
Another legal claim that a family member of Mr. Lake’s can file is a
wrongful death suit.
“A wrongful death claim generally consists of four elements: (1) the
death was caused, in whole or part, by the conduct of the defendant;
(2) the defendant was negligent or strictly liable for the victim’s death;
(3) there is a surviving spouse, children, beneficiaries or dependents;
and (4) monetary damages have resulted from the victim’s death.”
Retrieved on November 13, 2012 from www.accidentlaw.freeadvice.com/accident-law/wrongful_death/wrongful_death.htm.
With wrongful death suits a family member alleges that their family
member died as a result of the negligence of the defendant. Because
of the negligence of the manufacturer there was a hole in the
refrigeration system of the air conditioner that allowed Freon to escape
from the unit. This caused Mr. Lake’s residence to reach 96 degrees
Fahrenheit and the heat caused Lake to suffer from hyperthermia,
which led to his circulatory failure and ultimate death.
409982388,410073
409845670
409764669
RE: Week
3Discussion
1 - Legal
Dana Smicklas
Claims
and
Defenses
11/13/2012 8:47:47 PM
Antonia, I thought the same thing when I read the information provided.
However, from #1 and #2 above, it doesn't appear as if a wrongful death
suit would fit here because the the manufacturer didn't install the unit and
the manufacturer was not negligent.
410073761,410970
409982388
409845670
RE: Week
3Discussion
1 - Legal
Professor Devine
Claims
and
Defenses
11/14/2012 8:38:34 AM
Good point, Dana. That is one of the unanswered questions--who
installed the unit and was it done correctly? However, if the unit
was defective when it arrived at Mr. Lake's home and caused his
injury and death, the negligence, wrongful death, and even strict
product liability claims might be proven. Another point is raised
here--what about the pain and suffering Mr. Lake suffered prior to
his death? Can these types of "damages" be claimed here?
Ginger
410073761
409982388
RE: Week
3Discussion
1 - Legal
Dana Smicklas
Claims
and
Defenses
11/14/2012 1:05:41 PM
I would assume that his estate could sue for any types of
damages they want, but would a judge or jury give his
estate a favorable ruling based on negligence. The estate
would need to bring a personal injury lawsuit against the
manufacturer of the unit and/or the installer.
Based on this article, I would think that the estate would
have a good case because the woman in this article lost
full use of her right hand while the man in the story above
lost his life:
http://www.chicago-personal-injury-lawyerblawg.com/2011/01/illinois_product_defect_case_r_1.html
411006557,411802
410970798
409982388
RE: Week
3Discussion
1 - Legal
Jaye Ambrose
Claims
and
Defenses
11/16/2012 7:07:34
AM
Professor,
Yes, I believe these types of damages can be
claimed. If Mr. Lakes estate was able to establish
knowledge, then the estate could be entitled to
punitive damages as well as compensatory
damages against the manufacturer or seller.
411802053
411006557
410970798
RE: Week
3Discussion
1 - Legal
Professor Devine
Claims
and
Defenses
11/16/2012 9:06:52
AM
Typically, pain and suffering fall within
compensatory damages. Would punitive
damages be available or warranted in this type
of case, class?
Ginger
411802053
411006557
RE: Week
3Discussion
1 - Legal
Michael Como
Claims
and
Defenses
11/17/2012
10:50:13 PM
I do not think punitive damages would
be available or warranted because
there was not an intent to do harm. I
believe each state has its own rules on
punitive damages, but overall this was
a product defect and not an intent to
cause damage to this customer or any
customer.
410506053
409845670
RE: Week
3Discussion
1 - Legal
Jaye Ambrose
Claims
and
Defenses
11/15/2012 11:07:42 AM
Modified:11/15/2012 11:16 AM
Dana,
I also agree that there is not enough information provided to show
that the manufacturer was negligent in this case. I believe the
manufacturer could use misuse or abnormal use of a product,
contributory negligence, and assumption of risk as a defense,
because Lake could have played a huge part in his own negligence
by not allowing professionals or a certified individual to install the
air conditioner, which may have caused a hole in the refrigeration
system that allowed Freon to escape from the unit.
411007158
410823947
409845670
RE: Week
3Discussion
1 - Legal
Christopher Nordone
Claims
and
Defenses
11/15/2012 9:28:05 PM
I have to agree with Dana on this one, while the victim did die
because of hyperthermia and circulatory failure from their residence
becoming too hot was a result of the product not working, I do not
think the death can be considered a direct cause of the defendant
since the victim should have noticed the unit not functioning and
should have contacted either a repairman or the company for a
replacement unit. If the company did nothing to fix or replace the
unit then I would agree that the death was caused by the conduct
of the defendant. Also since the company was not contacted, it
cannot be considered negligence since they were not aware of the
defect. Aside from burial expenses, there are also no monetary
damages that resulted from the victim's death, so the only element
that really applies without a doubt is number three, there is a
surviving spouse, children, beneficiaries or dependents.
411007158
410823947
RE: Week
3Discussion
1 - Legal
Professor Devine
Claims
and
Defenses
11/16/2012 9:08:37
AM
Christopher: A jury could award compensatory damages
for Mr. Lake's pain and suffering and ultimate loss of life.
Expert witnesses can prove the "economic value" of his
life and award those damages to his estate. If there were
a surviving spouse, there might be damages awarded for
"loss of consortium."
Ginger
409393249
406485825
RE: Week
3Discussion
Joseph Waldrup
1 - Legal
Claims and
Defenses
11/12/2012 9:56:29 PM
The legal claim his estate can file on Mr. Lake's behalf is the Strict Tort Liability: Product Liability
Under Section 402A. Obviously the unit had a defect, sending Mr. Lake to his early death.
Manufacturing defects occur in the manufacturing process and usually involve poor-quality
materials or bad workmanship. Design defects occur where the product design is inherently
dangerous or useless (and hence defective) no matter how carefully manufactured; this may be
demonstrated either by showing that the product fails to satisfy ordinary consumer expectations as
to what constitutes a safe product, or that the risks of the product outweigh its benefits. Failure-towarn defects arise in products that carry inherent non-obvious dangers which could be mitigated
through adequate warnings to the user, and these dangers are present regardless of how well the
product is manufactured and designed for its intended purpose.
409264344
406485825
RE: Week
3Discussion
Latrice Donaldson
1 - Legal
Claims and
Defenses
11/12/2012 7:08:02 PM
Good evening Dr. Devine. Product liability law is the body of legal rules
governing civil suits for losses resulting from defective goods. After reading
Chapter 9 and Chapter 10, I think that the strict liability in tort law embraces
this week's scenario. Strict liabillity makes a person legally responsible for
the damage and loss caused by his or her acts and omissions. Another key
factor is the section that details the explanation regarding product liability,
(Section 402A), which states, "(1) One who sells any product in a defective
condition unreasonably dangerous to the user or consumer or to his property
is subject to liability for physical harm thereby caused to the ultimate user or
consumer, or to his property"and based on my interpretation of the reading in
regards to the defective unit, clearly there were poor inspections performed
on that particular unit. The manufacturers have a duty to inspect all of their
products for defects, which could create a reasonably foreseeable risk of
harm.
References:
http://biotech.law.lsu.edu/cases/products/402a-b.htm
http://public.findlaw.com/abaflg/flg-9-2c-5.html
408630236,408955
408484765
406485825
RE: Week
3Discussion
Jamie Blea
1 - Legal
Claims and
Defenses
11/11/2012 11:37:53 AM
I think the legal claim would be be under strict tort liability or under product liabilitysection 402A. This is a remedy for Arvo's family as this is a theory for defective
products. The product could be found under the requirement of unreasonably
dangerous defective condition for either design defects or errors in manufacturing,
handling, or packgaing of the product.
Text. Chapter 10
408955467,408985
408630236
408484765
RE: Week
3Discussion
1 - Legal
Conne Mcclure
Claims
and
Defenses
11/11/2012 4:51:29 PM
I agree with you Jaime with strict tort liability.The air conditioner was
purchased and installed under the manufacturers specifications. Unles there
is a disclaimer stating "as is" on the warrenty the manufacturer and the
intstaller will both be at fault which is the breach of warrenty.
408985226,409255
408955467
408630236
RE: Week
3Discussion Garrett Jones
1 - Legal
11/12/2012 8:23:38 AM
Claims
and
Defenses
I also agree with Jaime. Strict Tort Liability means a
party is liable for all damages as a result of their
dangerous actions or products. When a product causes a
foreseeable harm to a consumer, the maker of the
product and the distributor may be liable to pay
damages. If find this case interesting in ways though,
and am not convinced Strict Tort Liability would apply. Is
sound judgement not a factor in this case? Yes the
customer bought a product that was defective, but the
product itself did not cause the death. How often do
products break for one reason or another? It doesn't take
a genius to know an air conditioner is not working when
it's 96 degrees. Was the product reported by the
customer and requested to be serviced/replaced? I am
not saying in any way that the manufacturer isn't
responsible in some way, but to what extent is the
customer responsible for their own actions. Just to play
devils advocate say the customer lived in Alaska and
cranked it up full blast and froze to death, the product
was not faulty but would the manufacturer or seller be to
blame?
409255319,409509
408985226
408955467
RE: Week
3Discussion
1 - Legal
Professor Devine
Claims
and
Defenses
11/12/2012 9:48:58
AM
Jamie, Garrett, and Conne: Good start here in identifying
a possible strict product liability claim. So, what are the
elements that the Lake Estate must prove to win at trial?
Ginger
409509046,409918
409255319
408985226
RE: Week
3Discussion
1 - Legal
Jamie Blea
Claims
and
Defenses
11/12/2012 6:56:39
PM
If the whole was to to errors in manufacturings,
handling, or packaging by the AC company they
would need to prove negligence on the
company's part. It needs to be proved when and
how possibly the product was damaged and
where the manufacturere was negligent in their
process. This is one of the hardest forms of
negligence to prove according to our text.
Text Chapter10
409918885,409982
409509046
409255319
RE: Week
3Discussion
1 - Legal
Professor Devine
Claims
and
Defenses
11/13/2012 8:36:40
AM
Jamie: Good thoughts! This week, we
do need to distinguish negligence and
strict product liability claims, as
negligence requires a showing of
conduct that breaches a duty of
reasonable care. On the other hand,
there is no required showing of fault in
the strict product liability claim.
Ginger
409982591
409918885
409509046
RE: Week
3Discussion
1 - Legal
Julie Hicks
Claims
and
Defenses
11/13/2012
11:35:49 PM
Modified:11/13/2012 11:36
PM
Jamie and Dr. Devine,
Negligence is often difficult to
prove and yes, I agree that If
a consumer is injured by the
failure of a manufacturer to
exercise reasonable care in
discharging the
responsibilities, they may be
held liable under negligence.
Under strict products liability,
however, it is not usually
necessary to show that the
manufacturer or seller was
negligent or breached a
warranty in order to recover
damages for injuries
sustained from a defective
product. In a strict liability
claim, the injured party need
only show that: 1) the
product was defective, 2) the
defect existed prior to the
manufacturer releasing the
product, and 3) the defect
caused the victim's damages.
The product was defective as
it contained a hole in the
refrigeration system that
allowed Freon, the coolant, to
escape from the unit. The
defect existed prior to the
installation. And it did cause
fatal damage. The case
doesn't provide enough
details about the breach in
the sales contract
e.g..express and implied
warranties so I am not sure
here if we can apply breach
of warranty in this case.
Disclaimers are often
included in sales contracts by
the manufacturers.
409982591
409918885
RE: Week
3Discussion
1 - Legal
Professor Devine
Claims
and
Defenses
11/14/2012
8:39:13 AM
Very true, Julie. If
only we had the
specific warranties
in this case, but we
can assume there
were express
warranties in the
A/C paperwork.
Ginger
409496700
408985226
RE: Week
3Discussion
1 - Legal
Garrett Jones
Claims
and
Defenses
11/13/2012 7:54:59
AM
There are 5 elements that the Lake Estate must
prove to win at trial:
1. The Duty- is a legal obligation imposed on an
individual that they adhere to a standard of
reasonable care.
2. Breach of Duty- determination that the
defendant fell short of that standard or breached
that duty for the plaintiff to recover on the basis
of negligence.
3. Causation- After establishing breach of duty,
the plaintiff must also establish that the breach
of duty was the cause of damages.
4. Proximate Cause- Some cutoff cause must be
drawn between the causation and events that
contribute to the injury of the plaintiff.
5. Damages- The plaintiff must be able to show
damages that resulted from the defendants
negligence.
409807987
408985226
RE: Week
3Discussion
1 - Legal
Anthony Fletcher
Claims
and
Defenses
11/13/2012 7:50:21
PM
Modified:11/13/2012 7:51 PM
I agree with Garrett and everybody else
here regarding the Strict Tort Liability:
Product Liability. The product was
defective, and should be covered under the
manufacturer's warranty.
I think the Lake Estate has a lot to prove
here though. While it isn't in question
whether or not the product was defective
and caused the heat to rise, what is in
question is why wasn't anything said about
the high temperature level earlier. There
are many unknowns in this situation. First
off, even though Arvo was 71 years old, it
doesn't state whether or not he was an
able-bodied person and whether or not he
was able to walk around and take care of
himself, nor does it state that he needed
constant monitoring. If he had needed
constant monitoring, an able-bodied
individual would have noticed the
temperature level and not neglected to
deal with it. Had nobody else visited his
home over the course of 3 months to
realize the high temperature level? Like
Garrett said, it doesn't take a genius to
know an air conditioner isn't working when
it is 96 degrees.
Depending on the proximity to the air
conditioner, Arvo could have been close to
it the majority of the time, thus inhaling
the freon as it leaked. Freon can be a very
deadly chemical. Further evidence stating
the EXACT cause of death needs to be
determined. Was it strictly the heat level
that caused the death, or did the
inhalation of freon also affect the
outcome? Obviously further details
regarding the exact situation are needed
prior to the Lake Estate being able to
prove enough to win the trial.
Below is a link to some of the side effects
to freon inhalation, which could be relevant
to the case.
http://www.livestrong.com/article/174753side-effects-of-breathing-freon-or-otherrefrigerants/
409509504,409958
409188317
408955467
RE: Week
3Discussion
1 - Legal
Conne Mcclure
Claims
and
Defenses
and Death
11/12/2012 5:23:24 PM
Garrett, If Mr. Lake did the opposite then it would
of been his fault because he misused the product
and did not use the product based on
manufacturer recommendations. So in the case
of freezing to death it would be the Mr Lake fault
for misuse of the unit.
Since we do not know the medical history of Mr
Lake or any underlying conditions we have to
assume that Mr. Lake was in good health for a
man of 71. I believe under "normal" working
conditions if the air conditioner was working
properly Mr. Lake would not of died circulatory
failure. So I blame the unit malfunction and
therefore the manufacturer, As a person ages
into their 70's they start to loose their ability to
maintain their heat, so they like it to warmer
than you or I would feel comfortable. Mr. Lake
might of liked the warm temperature and may
not of realized what was happening to him
because it happen over a period of time. So yes
Mr. Lake death could be seen as foreseeable
consequence.
409958370,409887
409509504
409188317
RE: Week
3-
Professor Devine
11/13/2012 8:38:05
AM
Discussion
1 - Legal
Claims
and
Defenses
and Death
Class: Conne has done a good job of mentioning
possible legal defenses for the A/C manufacturer
based on Mr. Lake's own conduct. So, as we
identify possible legal claims, what possible legal
defenses might be raised and what are their
respective elements?
Ginger
409958370
409509504
RE: Week
3Discussion
1 - Legal
Garrett Jones
Claims
and
Defenses
and Death
11/14/2012 7:06:55
AM
Modified:11/14/2012 7:07 AM
Some of the possible legal defenses
the A/C manufacturer may use are
Contributory Negligence, Comparative
Negligence, and Assumption of Risk.
The A/C manufacturer could use
contributory negligence, which in short
states that if a person was injured in
part due to his/her own negligence the
injured party would not be entitled to
collect any damages from another
party who supposedly caused the
accident. The manufacturer could also
use comparative negligence, which
determines responsibility and damages
based on the negligence of every party
directly involved in the accident. Lastly
the manufacturer could use
assumption of risk which would say
that Mr. Lake took the risk of injury
onto himself and absolved potential
defendants from any liability. All 3
defenses would have to show in some
way Mr. Lake was aware of the
malfunction and did nothing to report
it or correct the problem, or that Mr.
Lake misused the product all together.
409983579
409887265
409509504
RE: Week
3Discussion Linda Sue Martin
1 - Legal
Claims
11/13/2012 9:59:51
PM
and
Defenses
and Death
There might be two possible
defences. One approach is the
Contributory Negligence, the
complete defense. There defense
might be Mr. Lake's misuse of
the AC, or perhaps the failure to
report its failure and get it
repaired. But one of my
concern's is the expression
"consequential damages must be
foreseeable." Many people lose
the use of their AC, but they
don't all die. That would not be a
foreseeable consequence of the
failure of the AC.
409983579
409887265
RE: Week
3Discussion
1 - Legal
Professor Devine
Claims
and
Defenses
and Death
11/14/2012
8:42:37 AM
Linda Sue and Garrett:
You're hired! The A/C
manufacturer wants you all
on its team! Seriously, good
work identifying possible
defenses. So, how do these
play out in a lawsuit? A
defendant may first challenge
the plaintiff's ability, through
evidence, to prove each
element of his claims. So, for
example, if just one element
of the four needed to prove a
negligence claim can be
disproven by the defendant,
then the plaintiff will lose on
that claim.
Alternatively, as you all have
pointed out here, the
defendant may raise
affirmative defenses. The
defendant then must prove
these defenses by a
preponderance of the
evidence. The jury will then
decide who wins on which
claims and defenses. Ex:
Lake Estate sues for
negligence; Defendant raises
comparative negligence on
the basis that Mr. Lake
should have noticed the
increasing heat and taken
steps to repair the unit
and/or remove himself from
the deadly situation. The jury
awards $100k in damages,
but finds the plaintiff 40%
responsible and the
defendant 60% responsible.
In this case, the Lake Estate
can only collect $60k.
Ginger
409797371
408630236
RE: Week
3Discussion
1 - Legal
Blanche Meriweather
Claims
and
Defenses
11/13/2012 7:34:51 PM
I agree;
I think negligence because any conduct of omission or neglect that
results in damages. Strict liability is absolute liability for conduct
with few if any, defenses available. The activity itself, while
sometimes necessary, imposes strict liability on the contractor
undertaking the project.
408852841
406485825
RE: Week
3Discussion
Julie Hicks
1 - Legal
Claims and
Defenses
11/11/2012 10:08:31 PM
In this case, Strict Tort Liability: Product Liability Under Section 402A will
apply. Part 2 of 402A states that Liability results for physical harm even
when sellers have exercised all possible care in producing the
refrigeration system. The fact that the seller is in the business of making
this product and someone is injured results in the liability. No negligent
error or omission is required as an element of proof for recovery. Section
402A applies to defective conditions regardless of the precautions taken
by the manufacturer. The type of defect that air conditioner case would
fall into would be "Errors in manufacturing, handling, or packaging of the
product".
409254120,409480
409117689
RE: Breach
of
Warranty
0
Antonia Whittler
11/12/2012 3:11:14 PM
Modified:11/12/2012 3:13 PM
Prof. Devine and class,
The warranties that the air conditioner manufacturer breached are any that
were provided in the warranty documents, as well as the implied warranties.
The implied warranties are provided below:
Warranty of Merchantability – This warranty “means that the seller promises
that the product will do what it is supposed to do. For example, a car will run
and a toaster will toast.” Retrieved on November 12, 2012 from
www.ftc.gov/bcp/edu/pubs/consumer/products/pro17.shtm. For the case at bar, the air
conditioner will provide air to cool down the location in which it is placed.
Warranty of Fitness for a Particular Purposes – This warranty “applies when
you buy a product on the seller’s advice that it is suitable for a particular use.
For example, a person who suggests that you buy a certain sleeping bag for
zero-degree weather warrants that the sleeping bag will be suitable for zero
degrees.” Retrieved on November 12, 2012 from
www.ftc.gov/bcp/edu/pubs/consumer/products/pro17.shtm. As with the case at bar, the
air conditioner should be suitable for use in hot weather, that is often seen in
the summer months, which include August, the month that Mr. Lake died from
the failure of the air conditioner working properly.
To answer the second part of this question, one must first ask what is
foreseeable?
“Foreseeability exists if the actor, as a person of ordinary intelligence, should
have anticipated the dangers his negligent act creates for others. Importantly,
‘foreseeability requires more than someone, viewing the facts in retrospect,
theorizing an extraordinary sequence of events whereby the defendant’s
conduct brings about the injury.’” (p. 303). Looking at the above-mentioned
definition I would have to say that the death was a foreseeable consequence
of the air conditioner’s failure to operate properly. The foreseeability test: “The
leading test for proximate cause focuses on whether the defendant should
have reasonably foreseen, as a risk of her conduct, the general consequences
or type of harm suffered by the plaintiff. In essence, the foreseeable harm test
requires (1) a reasonably foreseeable result or type of harm, and (2) no
superseding intervening force. The extent and the precise manner in which
the harm occurs need not be foreseeable.” Retrieved on November 12, 2012
from www.lexisnexis.com/lawschool/study/outlines/html/torts/torts12.htm. Air conditioners
are used so that people will not be too hot. When it is too hot people need to
keep cool so that nothing happens to their health or well-being. If a person
cannot stay cool the individual can be harmed with an illness due to being
overheated. In the case at bar, the consumer suffered from hyperthermia,
which caused circulatory failure and died. “Hyperthermia is elevated body
temperature due to failed thermoregulation that occurs when a body produces
or absorbs more heat than it dissipates. Extreme temperature elevation then
becomes a medical emergency requiring immediate treatment to prevent
disability or death.” Retrieved on November 12, 2012 from
www.en.wikipedia.org/wiki/Hyperthermia.
The first prong is satisfied because Lake’s
illness – hyperthermia – is a reasonably foreseeable result or type of harm
and there was no superseding intervening force. The air conditioner was
purchased and installed correctly. Thus, yes Lake’s death was a foreseeable
consequence of the air conditioner’s failure to operate properly.
409480623,409510
409254120
409117689
RE:
Breach of
Warranty
Colleen Walker
11/12/2012 6:55:06 PM
Going more in depth on the warranty of merchantability I definitely
think this is the one that executor of the estate can claim. The seller is
promising by selling the product that it will do what it's suppose to do.
It clearly did not do what it was suppose to do in this case. It did not
work and was faulty, and even caused a man's death. The
manufacturer is definitely at fault.
409510170,409688
409480623
409254120
RE:
Breach
Latrice Donaldson
of
Warranty
11/13/2012 6:49:00 AM
Good morning Colleen. I must have really missed something in my
reading of Chapter 10 because I stated in my post that the express
warranty was breached, but the class members that have posted are
stating that the implied warranty was breached. After reading
Antonia's and your post, I will add that the policy behind the implied
warranty of merchantability is basic: sellers are generally better
suited than buyers to determine whether a product will perform
properly. Holding the seller liable for a product that is not fit for its
ordinary purpose shifts the costs of nonperformance from the buyer
to the seller. This motivates the seller to ensure the product's proper
performance before placing it on the market. The seller is better able
to absorb the costs of a product's nonperformance, usually by
spreading the risk to consumers in the form of increased prices. I am
in the process of going back over the chapter; perhaps I will have a
change in opinion.
Reference:
http://legal-dictionary.thefreedictionary.com/Warranty+of+merchantability
409688573,409983
409510170
409480623
RE:
Breach
Professor Devine
11/13/2012 8:40:05 AM
of
Warranty
Latrice, Antonia, and Colleen: Good identification of the various
types of warranties and the elements of a breach of warranty claim
for the Lake Estate. Can the Lake Estate seek damages for Mr.
Lake's injuries and ultimate death on a breach of warranty claim? If
not, what are the possible remedies to this type of claim, class?
Ginger
409983870,410420
409688573
409510170
RE:
Breach
Conne Mcclure
of
Warranty
11/13/2012 4:34:03 PM
The Lake estate can seek damages from the
manufacturers and the installer. I was thinking why didn't
the licensed installer notice the leak, when he/she
installed the system. So the estate could file suit against
manufacturers and company that installed the unit into
the home.
410420192,410640
409983870
409688573
RE:
Breach
Professor Devine
of
Warranty
11/14/2012 8:43:33
AM
Depending on the specific facts, you are right,
Conne. And under strict product liability,
anyone/entity in the chain of sale
(manufacturer, wholesaler, retailer) may be held
responsible. Do you all think this is fair,
especially to the retailer with no knowledge of
the product defect?
Ginger
410420192
409983870
RE:
Breach
Julie Hicks
of
Warranty
11/15/2012 6:45:07
AM
Even though the wholesaler or
retailer where Mr. Lake bought
the air conditioner may not have
manufactured it, the retailer may
still be liable for selling him a
defective product. Lot of times,
distributors and retailers do
make considerable changes to
the original product before
selling it to the customers. The
changes may include not only
overall design and manufacturing
additions, but also component
parts, packaging, labeling and
warnings etc. So, we can't
absolve the retailer from their
responsibility irrespective of
whether they had prior
knowledge of the product defect
or not.
410640568
409983870
RE:
Breach
James Pha
of
Warranty
11/15/2012 4:41:48
PM
I use to work in Electronic sales, and
so many units are being pushed out
meaning being sold. There is really no
way for the retailers to test every unit
to make sure there is no defects.
That's why retailers offer a return
policy or exchange policy if the unit is
bad out of the box they can exchange
or return it. This way the retailers can
send the unit back for reinburstment
and customers get what they paid for a
working unit.
In this situation, where Lake's people
want to hold the retailers accountable
for the incident. I think it's really out of
anyone control of knowing the ac unit
was going bad. The manufacture and
whoever they have contract to do the
installation should be held accountable
for the event. If the Lake's people
investigate further, I'm sure they will
be able to make a better decision as
who would be held accountable for the
death of Lake.
411069773,411558
410623934
409983870
RE:
Breach
Blanche Meriweather
of
Warranty
11/15/2012 4:04:19
PM
great point Professor;
Conduct that falls below the standards of
behavior established by law for the protection of
others against unreasonable risk of harm. A
person has acted negligently if he or she has
departed from the conduct expected of a
reasonably prudent person acting under similar
circumstances.
In order to establish negligence as a cause of
action. under the law of TORTS, a plaintiff must
prove that the defendant had a duty to the
plaintiff, the defendant breached that duty by
failing to conform to the required standard of
conduct, the defendant's negligent conduct was
the cause of the harm to the plaintiff, and the
plaintiff was, in fact, harmed or damage.
411558386
411069773
410623934
RE:
Breach
Linda Sue Martin
of
Warranty
11/16/2012
11:57:05 AM
Good point Blanche. I had
similar thoughts. Under the
assumption that the installer
performed the installation
according to manufacturer
specs, stated in the case, and
he performed all the
necessary pressure test on
the line, and it passed; than
the installer should be off the
hook for liability. A leak that
took 4 months to release the
entire amount of gas, would
be a very small hole,
considering the unit was in
use. I agree with my
classmates, further
investigation may be required
to determine how the hole
was introduced in the line. It
is going to be a hard case to
resolve based on negligence.
Speaking to the professor
question "is it fair to hold
everyone accountable?",
basically yes, with
considerations. If the retailer
takes possession of the
product before it is delivered
to the customer than he may
have stored, handled, or
damaged the product while in
his possession. Hence the
idea of direct shipment to the
customer. If the retailer is
only acting as a paper
processor for transactional
purposes, it is unfair to the
retailer to make him liable for
the product.
411558386
411069773
RE:
Breach
Professor Devine
of
Warranty
11/17/2012
3:10:34 PM
Linda Sue:
Ultimately, the goal
of strict product
liability is intended
to provide
consumers with
legal recourse. The
product
manufacturer and
seller are in a
better position to
prevent defects in
the first place.
Ginger
410633542
410623934
RE:
Breach
Conne Mcclure
of
Warranty
11/15/2012
4:26:38 PM
Professor and Blanche, I
believe the estate can prove
breached of duty because the
installer did not perform on
normal standards. The unit
would of been tested after it
was installed and hole in the
unit would of been detected.
Also, depending upon where
the hole is located in the unit
the installed would of seen
the hole. There is negligent
upon the part of the installer
too.
411574052
409983870
RE:
Breach
Antonia Whittler
of
Warranty
11/17/2012 3:47:22
PM
Prof. Devine,
In all honesty, I do not believe
that this is fair to retailers who
may sell products without any
knowledge of a defect that the
products may have. I really feel
that only the manufacturer of
the parts and/or product should
be held strictly liable. The only
way a retailer should be held
liable is if it knows about the
defect and continues to sell the
product or does not have a
recall public announcement
done after it is made aware that
products that were sold from its
store may have a defect within
them. While a lot of states
adopted laws based on the
Restatement Section 402A that
held retailers liable also, there
was a public outcry from the
sellers after their expenses
started to increase, especially
for their insurance rates. Courts
reasoned that because the
retailers were within the
distribution chain within the
selling of goods and reaped
benefits they too should be
held accountable. People knew
where they purchased the
products from, which provided
them with greater security to be
able to provide the court with
jurisdiction of these in state
retailers than many
manufacturers that may be
located out of state so they
became the main targets of
lawsuits. Legislatures began to
put a stop to this and now only
twenty-five states and
Washington,D.C. have strict
liability laws that apply to
retailers also. “Insurance rates
were skyrocketing, they said,
and Mom-and-Pop businesses
were being driven out of
business. Some of this was
true, while other of it was
exaggeration. But, in the end,
many states did enact tortreform legislation that granted
greater legal protection to nonmanufacturing sellers.”
Retrieved on November 17,
2012 from
www.marlerclark.com/pdfs/chain-ofdistribution-liability.pdf. The laws in
a nutshell:




 25 states – strict
liability applicable to all,
including retailers
 9 states – pass-through
statutes, protects
retailers w/ no
knowledge or suspicion
 13 states – proof of
negligence on part of
retailer
 3 states – no strict
liability
Retrieved on November 17,
2012 from
www.marlerclark.com/pdfs/chain-ofdistribution-liability.pdf
412297735
411948737
409983870
RE:
Breach
Christopher Nordone
of
Warranty
11/18/2012
11:51:43 AM
I think it is completely fair for the
retailer to be held responsible under
strict product liability. Even though the
retailer may not know of the defect in
the product, having them included in
the liability for a defect will make the
retailer more socially responsible and
encourages them to do research on the
products they are selling and the
companies they are coming from. In
this way the retailer is responsible for
making sure the manufacture has a
good history of making quality
products instead of a history of faulty
and defective products. Also depending
on the defective, the retailer may have
even been responsible for the defect if
the product was damaged or
mishandled after the retailer received
the product.
412297735
411948737
RE:
Breach
Professor Devine
of
Warranty
11/18/2012
10:04:30 PM
Excellent look at the public
policy bases for holding the
retailer, as well as the
manufacturer, responsible,
Christopher. Of course, with
mass packaging on many
products, even the retailer
has little opportunity to
inspect. But the retailer has
better opportunity than
consumers.
Ginger
409245122
0
RE: Breach
of
Latrice Donaldson
Warranty
11/12/2012 6:43:45 PM
Modified:11/12/2012 7:11 PM
Good evening Dr. Devine and class members. First, let me state that the air condition
unit that Mr. Lake purchased clearly was a defective unit. To address the first
question, which asks "Which warranties, if any, has the manufacturer of the air
conditioner breached?", I think that the express warranty was breached. According to
the textbook, an "express warranty, as provided in the Uniform Commercial Code
(UCC) is a promise, either written or oral, by the manufacturer as to the quality,
abilities, or performance of the air conditioner (UCC §2-313)(Jennings)." From my
interpretation of this definition, I summise that the quality of the air conditioner is
what has been breached on behalf of the manufacturer. I can only assume that an
inspector of the refrigeration system did not catch the hole, which subsequently went
undetected and furthermore was not detected until after the death of Mr. Lake. For an
air conditioner to properly cool, freon is a must and if the freon seeped out due to the
hole in the refrigeration system, then the unit will not cool as it was promised to do.
Another important factor in this scenario is timing. Mr. Lake purchased the unit in
May and by August. This three month time span makes me wonder as to what size the
actual hole was; I will assume that the hole was a pin-head size hole, which would
explain why the freon seeped out slowly and sometime during the third month of
having purchased the unit, the unit's freon level was gone or extremely low, which did
cause the unit not to work effectively.
To address the second questions which asks "Was Lake's death a foreseeable
consequence of the air conditioner's failure to operate properly? I think that Mr. Lake's
death was a foreseeable consequence of the air conditioner's failure to operate
properly. I can only assume that a medical autopsy was performed to determine that
Mr. Lake suffered from hyperthermia, which is defined as a temperature greater than
37.5-38.3 ºC (100-101ºF), which in all likelihood means that Mr. Lake succumbed due
to a heat stroke. The manufacturer of the air conditioner had to predict or expect the
ultimately harmful result of their actions due to the defective unit. I am not stating that
it was an intentional act; however, they knew the potential consequences that could
arise if a unit did not operate as it should.
Reference:
http://online.vitalsource.com/books/9781133170624/page/330
http://definitions.uslegal.com/f/foreseeable/
http://medical-dictionary.thefreedictionary.com/hyperthermia
412071798
409386310
Breach of
Warranty
0
Joseph Waldrup
11/12/2012 9:45:35 PM
Which warranties, if any, has the manufacturer of the air conditioner
breached?
The warranty the manufacturer of the air conditioner breached was the "implied
warranty of merchantability."
Was Lake's death a foreseeable consequence of the air conditioner's
failure to operate properly?
I would say that Lake's death wasn't a foreseeable consequence of the air
conditioner's failure to operate properly. True enough, if the coolant would not
have escaped from the unit, it possibly could have saved him, but we can't pin
point if that "really" caused him to die. He could have died from another unknown
source, or perhaps natural causes. By the unit going out, I do believe it added to
his death.
412071798
RE:
Breach of
Warranty
409386310
Chelsey Houwen
11/18/2012 4:33:41 PM
But if the coolant leak out; he should have notice the room
getting hot. Since, the temperature reached about 96
degrees. So, when I the cashier if I want to buy a 1 year
warranty; what kind of warranty is that?
409945190,411123
409511751
Foreseeability
0
Professor Devine
11/13/2012 8:45:08 AM
Class: In the initial question this week, we are asked about foreseeability. The issue of
foreseeability is an important one in this scenario. First, what do "actual causation" and
"proximate causation" mean and what types of evidence in the Lake case might prove these
elements of a negligence claim?
Second, there is the issue of foreseeability--was it foreseeable that a defect in the A/C would
ultimately cause Mr. Lake's death?
You will see in our discussion that issues of liability are rarely easy or black and white. There are
different facts, different laws, different interpretations, and different nuances, as well as all of
the "what ifs." As always, we will be digging deeper into the facts in order to understand the
applicable law. We need to know more than the facts given. The question of "foreseeability" is a
critical one.
Manufacturers must live with the present litigious environment that surrounds products that
don't work, and personal injuries that sometimes occur because of faulty products.
The air conditioner leaked, and we will continue to debate over whether or not this is a breach of
the implied warranty of merchantability. Remedies for such a breach are normally limited to the
value of the product itself. Consequential damages are allowed only if the damages themselves
are foreseeable. In a negligence claim, proximate or actual causation must be proven.
How far in the causation chain should we permit foreseeability to go? Several in the
class may conclude that they do not believe Mr. Lake's death was a foreseeable consequence of
the failure of the A/C to work properly. The Palsgraf decision in our text presents the majority
and dissenting opinions the respective views on this issue. What do you think? Should the law of
foreseeability focus on the conduct of the injured as well as the conduct of the manufacturer
who breached a warranty? Do you see issues of foreseeability in the Lake case and in the Dole
case (I am posting a link to the Dole spinach case below)?
I post the link to the Dole complaint (the document that starts a lawsuit and is filed with a civil
court), so you can see what a complaint looks like in format and substance and get an idea of
how these legal claims we are talking about this week look in a lawsuit.
http://news.findlaw.com/hdocs/docs/spinach/zientekdole91706cmp.html
Ginger
409945190
RE:
Foreseeability
409511751
Latrice Donaldson
11/14/2012 5:37:32 AM
Good morning Dr. Devine. Actual causation refers to a cause or factor without which
the event could not have occurred. It is also termed as but for cause or cause in fact or
factual cause. The but-for test is often used to determine actual causation. With the
case of Arvo Lake and the defective air conditioner, the question is if the manufacturer
of the unit is responsible for Mr Lake's death ; this presents the question if the
defective AC unit the direct cause of Lake's death? Proximate cause is the primary
cause of an injury. It is not necessarily the closest cause in time or space nor the first
event that sets in motion a sequence of events leading to an injury. Proximate cause
produces particular, foreseeable consequences without the intervention of any
independent or unforeseeable cause. It is also known as legal cause. Some evidence of
the Lake case that may help prove elements of negligence are (1) the hole that was in
the refrigeration system of the unit, and the required freon had seeped out, (2) the
time span of the unit being purchased, properly installed, and when the unit began to
malfunction; from the month of May to the month of August), (3) after the unit
stopped cooling, the inside home temperature reached an excessive 96 degrees
Fahrenheit, which caused hyperthermia, which led to his untimely death. Was it
foreseeable that a defect in the AC would cause the death of Lake. In an injury/death
resulting from the defective design of a product, the claim is that the product
functioned as it was designed but the design, itself, was negligent. That is reasonable
manufacturer should have known that the design of the product was defective
(inspection done before leaving manufacturing location), this according to a group of
New York attorneys. References: http://www.gairgair.com/lawyer-attorney1428005.html http://definitions.uslegal.com/a/actual-cause/ http://legal-
dictionary.thefreedictionary.com/proximate+cause
411123860
RE:
Foreseeability
409511751
Dana Smicklas
11/16/2012 2:26:54 PM
I think foreseeability could depend on whether or not the type of air conditioning unit
had incurred similar issues in the past. For instance if ten other units has the same
problem as Mr. Lake's then I would say that it was foreseeable that something like this
could happen. However, if what happened to Mr. Lake's unit was the first unit to ever
have this happen, then no the event was unforeseeable. Companies do ris
assessments so that they know what the risks are with their products:
http://productliabilityprevention.com/images/2-RiskAssessmentandProductLiability.pdf
411674659
RE:
Foreseeability
409511751
Stephanie Knights
11/17/2012 7:07:25 PM
Actual cause is the cause of something that actually happened. For
instance, the cause of a person’s death was cancer. However, the
proximate cause is the cause of the cancer was smoking, because if the
person didn’t smoke they might not have gotten cancer.
In relation to the Lake case, the proximate cause would be the
assumption that the leak in the air condition caused Mr. Lake’s death.
This is because the Freon leaking from the air condition caused he
system not to function properly. However, the actual cause of death
was hyperthermia, but this would have happened even if the air
condition was never installed.
http://answers.yahoo.com/question/index?qid=20080109141443AA7PV
ZK
409783972
Re:Breach
of Warranty
0
Natia Wilkins
11/13/2012 7:15:44 PM
I believe the manufacturer has committed a strict liability in tort
because under section 402A of the restatement of torts it states:
(1) One who sells any product in a defective condition
unreasonably dangerous to the user or consumer....is subject to
liability for physical harm..."
(page 336, Business: It's Legal, Ethical, and Global Environment;
Jennings)
I also believe that Arvo had a part in this too. When his residence
started to become heated, Arvo should have discontinued the use of
the unit and sent it back to the manufacture for a refund or
replacement.
409866098
Breach of
Warranty
0
Carletta Jones
11/13/2012 9:21:27 PM
The manufacturer of the air conditioner breaches the warranty of the products design and the
design defects. Design defects is basically a product that has exposed the users of that product
to experience unnecessary risk. Mr. Lake was exposed to a faulty product due to design defect
and a breach of warranty on the manufacturers part. Mr. Lake's death was foreseeable due to
the air condition having faulty defects. It is the responsibility of the manufacturers to provide all
foreseeable risk and potential consequences that could occur with their products.
411989393,411612
Loser
Pays?
409985073
0
Professor Devine
11/14/2012 8:47:49 AM
Class: In some countries, a "loser pays" system is in place with respect to civil lawsuits. Do you
think this is a legal scheme that the U. S. should consider? Would it deter some of the frivolous
lawsuits we are discussing this week?
Ginger
411989393
RE:
Loser
Pays?
409985073
Stephanie Knights
11/18/2012 1:35:16 PM
The ‘loser pay’ system is basically when the losing side
contributes to the cost of the prevailing opponent. This is
practice in many European countries, but has not been
adopted in the United States. While there are some cost a
benefit to the legal systems in other nations, the loser pay
system is outweighed by is unforeseen disadvantages. For
instances, this systems may encourage side bets and/or split
fees between the magistrates and legal teams. Additionally,
in some nations the loser pay system has caused another
market to form, which is the ‘legal expense insurance’, just in
case you happen to be a losing plaintiff in a legal matter.
In my opinion, the United States should not ever adopt this
practice because it would discourage people from using the
legal system to resolve conflicts legally, if fear of losing and
having to pay more than what was lost.
http://www.pointoflaw.com/loserpays/overview.php
411612955
RE:
Loser
Pays?
409985073
Carletta Jones
11/17/2012 5:11:15 PM
Yes, I agree with the idea that using the loser pay system in the United States would
help to deter frivolous lawsuits. Many people in the United States feel that it is a
simple alternative to file lawsuits for every single thing, or situation that they feel is
unfair or any type of wrong doing.
“A loser pays system could be an important part of a larger effort to reduce litigation
cost, discourage meritless lawsuits, and better align tort law with its goal of deterring
socially harmful conduct. The rest of the world uses the loser pays or ‘English rule’
system,” the report said. “It’s time the United States adopts one as well.”
http://legalnewsline.com/tort-reform/217740-report-loser-pay-rule-would-curbfrivolous-lawsuits
412124436
412009134
RE:
Loser
Pays?
409985073
Linda Sue Martin
11/18/2012 2:23:16 PM
My concern would be for the lower income population who do have a
legitimate case but may be afraid of the risk. When one enters into a case
it is not known how it will be settled. If the plaintiff knows they maybe
responsible for all court costs, then they might not enter into the lawsuit.
This might work well for frivolous cases, but I'm more concerned about
the legitimates cases that will not be pursued. Some times our laws are
redefined because David fought the giant and won. And, in my opinion,
we need these cases to exercise our legal muscles and help it to grow.
412124436
412009134
RE:
Loser James Pha
Pays?
11/18/2012 6:01:01 PM
Hi Linda, you bring up an interesting point about how this loser pays system
could push the lower income that could possibly have a legitimate case away
because they could somehow lose and cant afford the fees... My initial
thoughts were this could possible eliminate cases that are pointless and could
also prevent people just making claims. Then, I read your post and it made
more sense. This system wouldn't be fair for everyone. In the system we
have now, I do agree with you that we need the cases that people aren't
afraid of big corporations or anything. Keep corporations and even
government themselves in check.
I found this in doing more reading about the Loser Pays system, "IF LOSER
PAY BECAME THE STANDARD IN THE U.S., it would probably create a market
for insurance covering the plaintiff's risk of losing and having to pay a
winning defendant's costs. That is what happened in England, where many
injury victims protect themselves against the threat of losing by obtaining
after-the-event legal insurance, the cost of which can be transferred to the
defendant if a victim wins. As a result, loser pays has had little effect on
these litigants. If successful plaintiffs in the U.S. could collect attorneys' fees
from defendants, the value of their claims would rise and more than offset
the cost of insurance. Attorneys might advance the cost and absorb it in the
relatively rare event that they lost the case."
http://www.legalaffairs.org/printerfriendly.msp?id=923
I was thinking, the loop whole for more fraud could actually rise as well...
Just thinking, with a new system put in place there will only be more wholes
that are open for people to make money by fraud and new regulations to be
put in place. Just seems like a whole mess to go though...
410518254
RE:
Loser
Pays?
409985073
Antonia Whittler
11/15/2012 11:38:34 AM
Prof. Devine’s Loser Pays: Class: In some countries, a “loser pays”
system is in place with respect to civil lawsuits. Do you think this is a
legal scheme that the U.S. should consider? Would it deter some of
the frivolous lawsuits we are discussing this week?
Prof. Devine and class,
Although we are not considered a loser pays country there are several
states that have loser pay systems and in all states the opposing party
can ask that the other party pay for attorney’s fees, as well as certain
sanctions if possible. Two states that the “loser pays” system is very
well known in are Alaska and Texas. “The one place in the U.S. that
has had extensive experience with a loser-pay system is Alaska.
Under Alaska’s rules, losers have to pay a portion of the winning side’s
costs.” Retrieved on November 15, 2012 from
www.legalaffairs.org/printerfirndly.msp?id=923 Texas expanded the
loser pays rule because Texas courts have the authority to order the
losing party to pay the attorney fees and costs for the winning party,
depending on the circumstances. Advocates for the “loser pays”
system argue that it will cut down on frivolous lawsuits. Because it is a
very litigious society our courts are congested with so many lawsuits
that it would be beneficial in our society if a “loser pays” system is
established to cut down the lawsuits. However, it was noted that the
law being used in Alaska did not cut down the number of lawsuits filed.
Texas just enacted the law in 2011 so I’m not sure that one year has
been enough time to determine the effects of the law on the cessation
of frivolous lawsuits. “According to its proponents, the law implements
several measures designed to streamline litigation in Texas courts and
allow litigants to resolve their disputes quickly and cost effectively.”
Retrieved on November 15, 2012 from
www.apps.americanbar.org/litigation/litigationnews/top_stories/080811-texas-loserpays-rule.html. It will be interesting to see the results in a few years!
411395399
410617144
RE:
Loser
Pays?
409985073
Anthony Fletcher
11/15/2012 3:47:23 PM
I agree with what the others have said about not creating a "loser-pays"
system. While the idea, in concept, is a good one and serves a purpose, it
would be difficult to standardize because every individual case is different.
Yes, the law would deter unnecessary lawsuits from happening, but for
those lawsuits that are legitimate it could potentially penalize one party
but not the other in a case where both parties are partially at fault. For
this reason, the percentage rule is used because it can better penalize
each party on a case by case basis. Under the percentage rule, the losing
party could still end up with 100% of the legal bills if they were found
completely at fault.
411395399
410617144
RE:
Loser Bryan Anderson
Pays?
11/17/2012 7:55:47 AM
I completely understand and agree with the “loser pays” philospophy. I believe that there should
be some repercusions for individuals to for frivolous lawsuits. The court system becomes
extremely congested with these cases and the cost to taxpayers is outragous. However, I believe
the reason we haven’t seen a dropoff in these types of cases being brought on the court system
is because of the ridiculous payouts. Because of these types of payouts, even with a “loser pays”
rule its still worth it for these individuals to “roll the dice.” If they lose they may have to pay a
few thousand dollars in lawyer and court fees, but if they win it could be a multi million dollar
payday. To some of these individuals the risk is worth the potential reward.
411007643
410414991
RE:
Loser
Pays?
409985073
Latrice Donaldson
11/15/2012 6:14:24 AM
Good morning Dr. Devine. Before reading up on the "loser pays" system, I
immediately said no to the question "Should the U.S. consider this legal
scheme?" After researching the topic, I did read that the "loser pays" legal
scheme would definitely deter a great portion of the frivolous suits that take
up unnecessary time and costs a great deal of money. I also read that the
"loser pays" legal scheme would only be beneficial to wealthy individuals or
major corporations. This is why I stand beside my answer NO. The most
important aspect of the article, in my opinion, is for the less financial
fortunate individuals (plaintiff, for example) who end up in court versus the
more financial fortunate individuals (defendant, for example), the strategy of
the prosecutors and the defense attorney would be swayed and the litigation
fees would become more astronomical. For anyone that is interested in
reading this article, it is located at http://phys.org/news/2012-11-loser-pays-all-
criminal-cases-wealthy-defendants.html.
Reference:
http://phys.org/news/2012-11-loser-pays-all-criminal-cases-wealthy-defendants.html
411007643
410414991
RE:
Loser Professor Devine
Pays?
11/16/2012 9:10:03 AM
Good analysis so far on the "loser pays" option, class. There are pros and
cons--elimination of some frivolous lawsuits yet possible deterrence of
meritorious lawsuits due to the risk when involving a judge or jury.
Ginger
411176227
RE:
Loser
Pays?
409985073
Christopher Nordone
11/16/2012 4:50:30 PM
After reading this article:
http://communities.washingtontimes.com/neighborhood/conservingfreedom/2011/aug/25/rick-perry-revives-hope-tort-reform/, which reviews Texas
implementing the loser pays system, I think I agree that a loser pays system is
something that the US should consider as being standard. The points that the article
brings up which makes me favor a loser pay system include the greed that the current
american system encourages with people to sue for anything in order to make money,
the amount of pointless lawsuits people file and the fact that legal costs can become
greater than the cost of damages someone may legitimately be suing for.
410074723
RE:
Loser
Pays?
409985073
Colleen Walker
11/14/2012 1:08:32 PM
I don't think that the US should consider a "loser pays" system with respect to civil
lawsuit. Definintly in some cases the loser in the case needs to pay for what they did
wrong, but not in all cases. I like the fact that the US has a % fault kind of way to do
things so that the percent of at fault is what you have to pay. Although I know people
who have had car accidents that they didn't like this type of dealing with it b/c they
didn't get 100% back on what damages they had, but it was partly thier fault, so it
makes sense to me.
410763535,411558
410151604
RE:
Loser
Pays?
409985073
Joseph Waldrup
11/14/2012 4:33:45 PM
This is a very interesting rule that I had not heard about prior to this discussion. In my opinion,
adopting a "loser-pays" rule would likely be feasible only if the rule applied to defendants who are
wealthy. A loser-pays-all rule could deter some crime when it's applied to either a corporation or an
individual with deep pockets. But when defendants are not wealthy, such cost-shifting would not
work. On the defendants side, the problem is that a significant percentage of the accused in the
U.S. are not wealthy and they might not have the financial resources to repay the prosecutor's
costs, should they be found guilty. So that might explain why this is not an issue we hear about too
often in the U.S. For that minority of cases, having a loser-pays-all rule in place could lead to
greater criminal deterrence as well as a reduction in legal errors, which may benefit some of those
civil lawsuits. Most people will think twice if they know they'll have to pay back the costs of their
prosecution if they lose. If you force companies to pay for the prosecutor's legal costs, they might
be less likely to settle, or more likely to invest more money on criminal litigation, so the probability
of losing goes down. I do not think this rule would benefit the U.S.
411558901
410763535
410151604
RE:
Loser Jamie Blea
Pays?
11/15/2012 7:58:33 PM
I would agree with Joseph that this rule would not necessarily benefit the
United States. Although, now adays many people want to take any small
argument to court and this could deter that thought- as if they lose they will
be paying in addition to their normal court costs. As Joseph mentioned, this
may not matter to those with already "deep-pockets" and may only be a
bump in the road. However, it could lead to less settlements outside of court
as both the prosecutor and defendent would want to win as not to pay.
411558901
410763535
RE:
Loser Professor Devine
Pays?
11/17/2012 3:11:49 PM
Modified:11/17/2012 3:12 PM
Like Texas, many other states have engaged in tort reform. Have
your states? Check it out: http://www.atra.org/legislation/states.
Some argue that tort reform may be an important step in bringing
down health care costs.
Ginger
410229612,411020
409999077
0
RE: Breach
of
Jaye Ambrose
Warranty
11/14/2012 9:31:57 AM
Modified:11/14/2012 9:43 AM
The breached could be based on design defects of the air conditioner.
For the manufacturer to be liable for damages caused by this breach of warranty,
the manufacturer must show that they have complied with federal and state
regulations on on the product and that adequate instructions were provided on
the proper use of installing, servicing and care for the product. It would also be
helpful if the manufacturer used the latest technology and designs available within
the industry and has met those standard s in designing its products.
Manufacturers have the ability to warn buyers of the potential dangers that can
result from the use of their product because buyers are not likely to realize the
potential dangers or threats that can occur as a result.
If the manufacturer failed to provide necessary regulations under the Consumer
Product Safety Commission (CPSC), then I would believe the faulty air conditioner
could be a foreseeable consequence of Lake's death.
411020221
410229612
RE:
Breach of
Warranty
409999077
Chelsey Houwen
11/14/2012 7:00:44 PM
All the air conditioners should have come with instructions.
There should have been a section, included with the
instructions, for warnings, which will or should have given
buyers a heads up on what could possible happen with the air
conditioner, as well. I also understand that some individuals
do not read the warning labels.
411020221
410229612
RE:
Breach
Joseph Waldrup
of
Warranty
11/16/2012 9:45:21 AM
Very god point Chelsey. Most of these companies that construct products that
we use on a daily basis print out these warning labels with a ton of writing on
them. I know I am guilty of not even looking at some of those labels. If the
manufacturer of the A/C unit did not include any special instructions or
warning, shame on them. If they did, even it had small print, they may be
covered because they actually included it.
410330143,410452
410174726
Negligence
0
Bryan Anderson
11/14/2012 5:23:09 PM
Absolutely the manufacturer is liable as the warrenty was breached. I do believe that the
company is responsible for consequencial damages that resulted from the damaged equipment.
When the company projected the potential consequences from such a malfunction i doubt that
they thought that it would result in death, but it did. Mr Lake bought the product with the
expectation that it would provide cool air. The product did not work as designed, thus they
should be held responsible.
410452428,412338
410330143
RE:
Negligence
410174726
Edwin Scales
11/14/2012 9:38:20 PM
The Breach of Duty, under Element One, is that the manufacturer breached that duty
for the plaintiff to recover on the basis of negligence. The manufacturer’s Quality
Assurance department should have found the defect in their model. In addition they
should engage in thorough contracts with specific delivery companies to reduce the
change of improper behavior with random appliance deliveries.
This is one of the saddest types of negligence cases because the appliance killed the
consumer since the Standard of Care was not met. I can imagine the executor will file
suit for punitive damages.
412338036
410452428
410330143
RE:
Negligence Colleen Walker
11/15/2012 8:40:25 AM
I agree that the manufacturer's quality assurance's department should be to
blame. There was obviously a mess up somewhere that let this air
conditioner go out to the customer's home and then in turn kill him. This will
definintly give the company a huge problem with a bad public image as well
as law suits. The company needs to find out where the problem came from,
how to deal with it, and how to get their public image up.
412338036
410452428
RE:
Negligence Kim Ornder
11/18/2012 11:35:15 PM
I cmpletely agree that the manufacture is to blame. They both
caused the problem and are in the position to make steps to
prevent it from happening again. Even if they did not anticipate that
any malfunction would result in death it did and they are
responsible for that outcome.
410373835
Warranty
0
Michael Como
11/14/2012 11:15:45 PM
Class, many of you have replied with great answers and I agree that this is a defective product.
While reading the text, two areas stand out to me, the implied warranty of merchantability and
the implied warranty of fitness for a particular purpose. These seem similar to me, but the
merchantability is where a merchant says a product will work and the other warranty of fitness
says that the product will work for the particular purpose it was designed for. The air conditioner
was faulty and did not work as it was implied to function. I can understand where some see
negliegence on the part of Arvo, but the main issue is the air conditioner did not work as it was
designed to work and the company should be held liable for damages that came as a result.
411807181,411900
410690308
Warranty
0
Chelsey Houwen
11/15/2012 6:11:26 PM
Well, unless the manufacturer knew the product was lemon
(something was wrong with it); then, I would consider that to
breach of the warranty or contract. To believe it or not some
company sell lemons. That is why have some many recalls on
products. One example would be Toyota. Yes, Lake's death could
have be somewhat foreseeable because he or someone should have
recognize the room getting hotter. Now, this is a lesson to the
manufacturer that they need to double their work before shipping
them out to the stores.
411900535
411807181
410690308
RE:
Warranty
Edwin Scales
11/17/2012 11:01:33 PM
The requirements of warranty determine what a seller must do to ensure they are not
in breach or warranty. First the company, or seller, used skills or judgments is use of
the goods. Second, the buyer relies on the seller’s skill and judgments. Most
importantly, seller had reason to know of buyer’s reliance. Finally, the seller
recommends use to the buyer. The air conditioner did not work and was subject to
warranty.
411900535
411807181
RE:
Warranty Professor Devine
11/18/2012 9:34:30 AM
Importantly, there is a privity requirement in a warranty claim, so only the
consumer can bring such a claim. Also, breach of warranty claims are limited
to economic loss rather than compensation for personal injuries.
Ginger
411316165
410695024
Breach of
Warranty
0
Stephanie Knights
11/15/2012 6:18:57 PM
Federal Magnuson-Moss Act: This is a limited warranty concerning
the consumer which regulates the length of the purchaser and user
warranties. While this act does cover the manufacturer it does not
prohibit the purchaser for filing a lawsuit under the Uniform
Commercial Code (UCC), while under the manufacturer’s written
warranty. There are several other warranties that cover the
consumer as well as the manufacturer. However, it is the
consumer’s responsibility to make sure the system is cooling the
space properly.
Unfortunately, in the case of Mr. Lake, there are no grounds to hold the
manufacturer liable for his death. The air condition unit had been installed
for three months, so during that time someone would have to notice the
air condition unit was not working properly.
http://www.justanswer.com/business-law/4k3rc-superkool-company-makes-air-conditionerssells.html
411316165
410695024
RE:
Breach of
Warranty
Edwin Scales
11/16/2012 10:14:11 PM
The refrigerator is a large, heavy, technical appliance. This package would fall under
the Express Warranty for the delivery alone. The manufacturer should ensure the
product quality because they made a promise to the quality, abilities or performance of
the product. The family visited a showroom and they observed a display model. They
could read the refrigerator’s features and specifications for the appliance. The
manufacturer and store are responsible to ensure the machine performs within
guidelines. These abilities all affirm that the buyer has express warranty that the
product works correctly.
411324740,412117
"You be
the
Judge"
411005998
0
Professor Devine
11/16/2012 9:05:13 AM
Class: I have inserted the Lake decision in Docsharing. You be the judge--how would you have
ruled?
Ginger
412117545,412145
411324740
411005998
RE:
"You be
Linda Sue Martin
the
Judge"
11/16/2012 10:39:48 PM
There are a couple of observations that I have made after reading the decision. The
first is the idea that the plaintiff did not make the complaint with special
circumstances. This was mentioned a couple of times. And at one point stipulates that
the case might have resolved differently if the "complaint alleged special
circumstances." This leads me to wonder if the decision was complete.
I found the comments on foreseeability particularly enlightening. Especially considering
our comments on the topic. The fine point centers on the definition of the term as
found in the Winnett v. Winnett case. It seems that foreseeable means "that which is
objectively reasonable to expect" not necessary what possibly could happen. With that
understanding it is easy to understand how the argument against product liability
failed. It is not reasonable to expect the owner to die if the AC should cease to
function.
Overall, I find the decision logical and in-line with the law. Admittedly, there were
perspectives that I would not have considered. Its a hard thing to read, but once on a
roll it is interesting.
412145004
412117545
411324740
RE:
"You
Michael Como
be the
11/18/2012 5:50:41 PM
Judge"
Linda Sue, after reading the decision, I have to agree with your assessment.
I think the plaintiff failed to show what the special circumstances are in this
case for Arvo Lake. Why would he have had difficulty that someone else
would not have had with this appliance? If they could have shown that Arvo
was impaired in some way if it was true, then maybe they could have used
that as a reason why the company was liable for death. I agree that an air
conditioner is not a life saving device and that death from using an air
conditioner is not a foreseeable occurrence.
412145004
412117545
RE:
"You
be the James Pha
Judge"
11/18/2012 6:31:09 PM
Hey Michael... I think you hit it on point with your last statement,
"an air conditioner is not a life saving device and that death from
using an air conditioner is not a foreseeable occurrence." Also like
Linda said, the decision base on the claims made by the plainitiff a
lone and the defendants claims seems pretty obvious what the
outcome would be. I do agree that, if the Lake's estate could have
gone a different direction with this case, maybe they would have
the outcome weighted their way more.
From the ARVO case, "Another way of formulating this concept is to
say that every time a product injures a consumer, that consumer is
disappointed, i.e., the product has failed to live up to the
consumer's expectations, but that does not automatically impose
liability upon the manufacturer. " I agree with this statement until
proven... Just because there are so many other factors that can
take place and is involved. It is hard to say a lone that the product
failing a lone cause the death... Maybe with more investigation,
other things would appear that the could have been other things
that lead to the Lake's death.
411392801
411005998
RE:
"You be
Bryan Anderson
the
Judge"
11/17/2012 7:46:08 AM
Initially reading the discussion topic, I was very much convinced that “Heat Controller Inc” was to blame for
the death. After reading the courts decision and their reasoning, I can understand why they disnt find Heat
Controller Inc responsible. In my opinion, the main reasons they sided with Heat Controller Inc are “the
manufacturer did not intend for its product to be a life-support device. And “an air-conditioner may on
occasion serve to prevent people from overheating and dying, but its purpose is incidental to their intended
use.” So I had originally vilified Heat Controller Inc in the man’s death but after reading the reasoning, I
agree with the courts decision.
411559885,411998
411239202
411005998
RE:
"You be
Julie Hicks
the
Judge"
11/16/2012 7:20:42 PM
After going through the Lake decision, I would somewhat now agree and go alongwith
the court decision. The court stated that In determining whether a duty exists, it must
apply a foreseeability test. An ordinary consumer would not expect to be killed by an
air conditioner which is defective. Failure to blow cold air does not make an air
conditioner "unreasonably dangerous". Air conditioner manufacturers reasonably would
believe that if an air conditioner failed to blow cold air, the purchaser might flip the
switch a time or two, or perhaps unplug it or perhaps call a repairman and when all
failed the purchaser could be expected to walk outside. So, it concluded that Lake's
death was not a proximate result of defendant's breach of warranty and thus not a
proper case in which consequential damages can be sought. I agree because we can't
consider the air conditioner as "Life Support Device". It served its purpose and there
could be a situation where it malfunctioned and it is the duty of the plaintiff to take
precaution or call someone immediately rather than succumb to death.
411998086,411584
411559885
411239202
RE:
"You
be the Professor Devine
Judge"
11/17/2012 3:14:09 PM
Thanks for weighing in here!
Class: As further information, a lawyer who used to teach this course
wrote the following letter:
Subject: Estate of Arvo Lake case
Dear Paula Newcomb, Esquire:
Hi! I am an attorney in Decatur, IL, and an Instructor for Keller School of
Management of DeVry University. I teach Business Law and Ethics.
An appellate case which you handled, (Estate of Arvo Lake v. Heat Controller
Inc), is the subject of one of the topics we cover in our class--breach of
warranty and product liability. The students in my class are curious about
what happened after the case was remanded back for the jury to decide
foreseeability and whether the a/c was unreasonably dangerous.
I wondered if you would mind just letting me know what happened in the
subsequent trial, or if your client ended up settling with the defendants.
Thank you for your time. I would really appreciated knowing how this turned
out!
Here is the response:
The judge who dismissed this case for failure to state a cause of action
(which we appealed) always thereafter referred to this as the case of the
killer air conditioner. We settled; for a mere $5,000, as Mr. Lake was a
bachelor, no children, few heirs and his family members were not especially
interested in a trial and could not realistically claim loss of companionship.
The attorney I had worked for as a law clerk, David Garavalia, was Mr. Lake's
friend and his executor. I began this case as the clerk, and finished it after I
graduated. Mr. Garavalia and I felt that Mr. Lake's death was unnecessary,
and Mr. G. had personal knowledge that the A/C was new, and that Mr. Lake
actually had great difficulty bearing the heat. It is of great interest to me that
it is the subject of a law class. I felt then and do now, that it was foreseeable
that certain persons would rely on the working of the A/C just as you expect
the brakes of your car to work.
Thanks for the note.
Paula Newcomb
Does this information change your analysis and conclusions about
this case? What do you all think about assessment of the
"economics" of the value of Mr. Lake's life? Unfortunately, this is part
of a wrongful death analysis.
I thought you all might be interested in how the "economic value" of
someone's life is calculated, particularly since Mr. Lake was elderly.
It is sad but a fact. Here is an excellent article about the value of life
and monetary calculation in personal injury and wrongful death
lawsuits.
http://www.behan.ws/lifevalue.htm
Ginger
411998086
411559885
RE:
"You
be the Linda Sue Martin
Judge"
11/18/2012 1:56:33 PM
Good to know the final judgement. I find the settlement
to be surprising low. Though I was not expecting a large
settlement, the amount suggest it was not even large
enough for the estate to reclaim expenses for the trial.
Though on the other hand, the judges comment do make
it clear that and AC is not a life sustain piece of
equipment and should not be used as such. I did find the
life economic value interesting. I had assumed that the
life expectancy was considered as well as earnings
projections. Did not consider the value would take into
consideration the retirement figures, or even
unemployment, and perhaps even vacation pay. Seems
to fairly comprehensive. The settlement would have no
doubt, been larger if Mr. Lake had been younger.
411584720
411559885
RE:
"You
be the Blanche Meriweather
Judge"
11/17/2012 4:11:34 PM
Wow Professor;
I never knew how the value of life and Monetary calculate in a
personal injury and wrongful death lawsuits. It's sad to say if you
don't have a great job and education as well as your age, you're not
worth anything. Thats saying you have to be young, educated and
have a great job to be worth something.
411900791,412121
411740353
RE:
411005998
Dana Smicklas
11/17/2012 8:57:10 PM
"You be
the
Judge"
When I first read the case, I did feel bad for the man, seeing as he was in his 70's.
However, as the judge states, not every 70 year old person is feeble or incapacitated
and therefore age should have no bearing on the case. I agree with that point and I
think that's why a substantial frivilous cases are brought forth. For instance, if a
woman lived along and the same thing happened to her, could she claim that because
she is a woman and not knowledgeable about air conditioners that she wasn't able to
fix it or know that it had a problem?
Therefore, the man's age should not have anything to do with the case. The case
should be based on whether or not the unit was defective and caused the man's death
and if the unit was defective, was the company aware of the potential for that issue
before they sold him that unit.
412121835,412300
411900791
411740353
RE:
"You
be the Professor Devine
Judge"
11/18/2012 9:35:22 AM
Modified:11/18/2012 9:35 AM
Still, Dana, you make good points. If it were determined that Mr. Lake had
diminished capacity, this may impact the success of defenses such as
comparative negligence. It is sad how many individuals, particularly elderly,
die in this country from heat related deaths.
Ginger
412300340
412121835
411900791
RE:
"You
be the Anthony Fletcher
Judge"
11/18/2012 5:57:05 PM
Maybe I missed it this discussion or maybe it wasn't
mentioned, but what about the effects of this situation on
the business that sold the air conditioner? I would
assume they tested the product prior to the sale, but
between the manufacturer and the retailer the product
could have been damaged in the distribution cycle. I
think it is important to discuss this side of the story as
well. Mr. Lake could have purchased the air conditioner
from a retailer, in which case the product probably spent
some time in numerous places after the manufacturing
plant. What would happen in this case if the
manufacturer could prove the product was not defective
prior to shipment? If they could prove this, then would
the distributor or the retailer also be partially liable?
While defects are typically rare due to quality assurance,
the defect in this air conditioner is a fairly common one,
and can be easily caused by mishandling. What if the
product was accidentally damaged while being installed
by the customer or a family member? Maybe the retailer
itself installed the product. Additional information is again
needed to determine liability.
Brand image is at risk here for the company. No company
ever wants a situation on their hands like this one,
because it turns into bad press and ultimately diminished
sales because of the bad word-of-mouth.
412300340
412121835
RE:
"You
be the Professor Devine
Judge"
11/18/2012 10:09:05 PM
Anthony: This is where we look back at the elements of
the strict product liability claim. One element that must be
proven is: "the product is expected to and does reach the
user or consumer without substantial change in the
condition in which it is sold." If this element (along with
the others) is proven, then the manufacturer can be held
legally responsible. Proving this is difficult, which is why
product liability cases typically require expert witness
testimony.
However, you did identify other parties that may provide
an "intervening/superseding cause" defense for the
manufacturer, such as damage in installation by a third
party installer or by the consumer. If proven, this defense
(among others) may reduce or eliminate the
manufacturer's liability.
Ginger
411899413
0
Week 3 Discussion 1 Professor Devine
- Wrap Up
11/18/2012 9:30:39 AM
Class: Thanks for your thoughts this week. Interesting discussion!
We discussed TCO C: Given an example of corporate liability arising from the sale of defective
and dangerous products, develop a business strategy that includes ethical considerations to
minimize liability for claims of product liability and breach of warranty.
For the midterm and final exams, be sure that you consider the elements of possible legal
claims--negligence, strict product liability, breach of warranty, and wrongful death. Also, review
possible defenses, such as assumption of the risk, contributory and comparative negligence,
intervening causes, statutes of limitations and repose, and misuse of product.
An additional defense that we have not discussed this week is the doctrine of governmental or
sovereign immunity. In many cases, governmental entities and officials may be held to be
"immune" from lawsuits and liability for acts within the scope of their office. For example, in one
case, a patrol officer had stopped to ticket a driver. A truck collided into the back of the patrol
car and then sued for his own injuries. The court held that the officer and the City were immune
from suit and liability under the doctrine of governmental immunity.
Ginger
_u=8678735;_dt=6
0C-90-A5-93-23-10