DOCSLIB.ORG

Product Liability Standards Under the Washington Product Liability Act for Sellers and Manufacturers by Ken M

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Product Liability Standards Under the Washington Product Liability Act for Sellers and Manufacturers by Ken M DEFENSE NEWS Fighting for Justice and Balance in Civil Courts Product Liability Standards Under the Washington Product Liability Act for Sellers and Manufacturers By Ken M. Roessler, Forsberg & Umlauf, P.S. Fall 2008 This article briefly explains the differences in tort liability standards set out in the Washington Product Liability Act (WPLA) for sellers and manufacturers of IN THIS ISSUE products, discusses some of the statutory exceptions that impose the liability of a manufacturer onto a seller, and provides examples from Washington case law. What Ten Points to follows is a discussion of the basic differences between seller liability and manufac- Ponder on Appeal 7 turer liability under the WPLA. 1. A Manufacturer Is a Seller, But a Seller Is Not Necessarily a Manufacturer The JAMS Institute – All salmon are fish, but not all fish are salmon. Similarly, all manufacturers are Learning from sellers, but not all sellers are manufacturers. If your client is sued for a product- One Another 9 related injury, it generally makes quite a difference whether your client made the product or just sold it. If your client was simply in the chain of distribution, i.e., a President’s Column: wholesaler, distributor, or retail seller, and didn’t put its own label or name on the Fall 2008 11 product, then it is generally subject to a negligence liability standard. If, however, it manufactured or designed the product, then it is subject to a strict liability standard. 2008 Convention However, there are exceptions such as when the manufacturer is insolvent or beyond Wrap Up 13 the jurisdictional reach of a Washington court, or where the seller is the controlled subsidiary or parent company of the manufacturer. Current Officers 14 Under the WPLA, a product manufacturer is generally subject to a modified form WDTL Membership of strict liability. The classic example that explains the public policy considerations Application 15 behind strict products liability is this: if a widget comes off the assembly line with a sharp, jagged edge, and that jagged edge injures an unsuspecting user, the legal Upcoming Events 16 system will not concern itself with how careful the widget manufacturer may have been. The product is by definition “defective” and “unreasonably unsafe” because the widget as manufactured departed from its intended design and the focus is on the product itself. If the defect caused the injury, then the manufacturer is liable, regardless of how non-negligent or careful the manufacturer might be. Granted, this example illustrates a “defect in construction,” which is arguably the easiest of the three types of product defects to prove.1 But the rationale of strict liability still applies for the other two types – defective design, and inadequate warning – albeit with some nuances and balancing of pros and cons, considerations of social utility and alternative safer designs vs. the likelihood and magnitude of harm posed by the existing design. Seller liability is not quite as complicated, and it’s also not as easy for plaintiffs to prove. Again, a “seller” under the WPLA is understood to be a non- Continued on Page 2 Editor: Grant Lingg Editor: Jody K. Reich www.wdtl.org T. 206.689.8500 | F. 206.689.8501 [email protected] T. 425.275.0551 | F. 425.776.2467 [email protected] Product Liability From Page 1 manufacturing seller. Sellers must be shown to be negligent for product liability to DEFENSE NEWS attach, but there are a few exceptions, as discussed below. The WPLA defines “product seller” as “any person or entity ... engaged in the Editors Grant Lingg Jody K. Reich business of selling products, whether the sale is for resale, or for use or consump- Forsberg & Umlauf, P.S. Dethlefs Sparwasser, PLLC 206.689.8500 (425) 275-0551 (direct) tion. The term includes a manufacturer, wholesaler, distributor, or retailer of the 206.689.8501 (425) 776-2467 (fax) 900 4th Avenue, 115 Second Avenue North, relevant product. The term also includes a party who is in the business of leasing Suite 1700 Suite 100 Seattle, WA 98164-1039 Edmonds, WA 98020 or bailing such products.The term . does not include [home sellers, professional [email protected] [email protected] service providers, etc.].” RCW 7.72.010(1). Conversely, the WPLA defines “manufacturer” as “a product seller who designs, Editorial Board Manish Borde Michelle Menely produces, makes, fabricates, constructs, or remanufactures the relevant product or Williams, Kastner & Gordon, Thomas, Honeywell, Gibbs PLLC Malanca, Peterson & component part of a product before its sale to a user or consumer. The term also Suite 4100 Daheim LLP 601 Union St Suite 2100, 600 University St includes a product seller or entity not otherwise a manufacturer that holds itself Seattle WA 98101 Seattle WA 98101-1176 [email protected] [email protected] out as a manufacturer.” Also, a “product seller acting primarily as a wholesaler, dis- William L. Cameron Peter E. Meyers Lee Smart, P.S., Inc. Durham Meyers Jeffers PLLC tributor, or retailer of a product may be a ‘manufacturer’ but only to the extent 1800 One Convention Place Suite B 701 Pike Street 5413 Meridian Ave. N. Continued on Next Page Seattle WA 98101-3929 Seattle WA 98103-6166 [email protected] [email protected] Douglas Lowell Davies Stacy J. Plotkin-Wolff Foster Pepper, PLLC George W. McLean, Jr 1111 3rd Ave.,Suite 3400 & Associates Seattle WA 98101 Suite 1600, 720 Olive Way [email protected] Seattle WA 98101-1890 Stacy.Plotkin-wolff.L6PH@ Melody D. Farance statefarm.com Stamper, Rubens, Stocker & Smith Janis C. Puracal Post Place, Suite 200 Bullivant Houser Bailey PC 720 W Boone Suite 2300 Spokane WA 99201 1601 5th Ave [email protected] Seattle WA 98101-3622 [email protected] Nathan L. Furman Forsberg & Umlauf, P.S. Aaron Paul Riensche Ste 1700 Ogden Murphy Wallace 901 Fifth Ave Suite 2100 Seattle WA 98164 1601 5th Ave [email protected] Seattle WA 98101-1686 [email protected] Melissa Kay Habeck Forsberg & Umlauf Jeremy H. Rogers Suite 1700, 901 5th Ave Forsberg & Umlauf, PS Seattle WA 98164-2050 Suite 1700 [email protected] 901 Fifth Avenue Seattle WA 98164 Carol Sue Janes [email protected] Bennett Bigelow Leedom, P.S. Suite 1900, 1700 Seventh Ave Michael H. Runyan Seattle WA 98101 Lane Powell PC [email protected] Suite 4100 1420 Fifth Avenue Marc A. Johnston Seattle WA 98101-2338 Prange Law Group [email protected] Suite 2120 111 SW Fifth Avenue Thomas D. Underbrink Portland WA 97204 Enumclaw Insurance Group [email protected] 1460 Wells St Enumclaw WA 98022 Laurie D. Kohli [email protected] Porter, Kohli & LeMaster, P.S. Suite 2200, 1601 Fifth Ave Christopher M. Veley Seattle WA 98101-2622 Martin & Veley [email protected] 19215 SE 34th Street, Suite 106-345 Bert W Markovich [email protected] Schwabe Williamson & Wyatt, P.C. Suite 3010, 1420 5th Ave Seattle WA 98101-3944 [email protected] The Defense News is published bi-monthly by the Washington Defense Trial Lawyers, c/o WDTL, 800 5th Ave., Suite 4141, Seattle, WA 98104. All rights reserved. Reproduction of any material appearing herein without permission is prohibited. SUBSCRIPTION: Included in dues of all active members. EDITORIAL POLICY: Defense News is edited for members of the Washington Defense Trial Lawyers. Publishing and editorial decisions are based on the editors’ judgment of the quality of the writing, the timeliness of the article, and the potential interest to Defense News readers. The views expressed in the Defense News are those of the authors and may not reflect the official policy or position of WDTL or Defense News. SUBMISSIONS: All submissions must be typewritten, double-spaced (including citations). Include with the article an electronic format – either by email or disk. Articles may be submitted to [email protected] or [email protected]. ADVERTISING: All advertising inquiries should be directed to: Kristin Lewis, 800 5th Ave., Suite 4141, Seattle, WA 98104, (206) 749-0319 or e-mail: [email protected] Defense News does not screen its advertisers/advertisements and does not vouch for the quality of the services offered for sale herein. 2 Fall 2008 Product Liability From Page 2 WDTL STAFF that it designs, produces, makes, fab- within the legally authorized scope of Member Services ricates, constructs, or remanufactures the professional practice of the provider; David Penrose the product for its sale. A product iii) A commercial seller of used 4141 Agate Road seller who performs minor assembly of a products who resells a product after use Bellingham WA 98226-8745 product in accordance with the instruc- by a consumer or other product user; Phone: (206) 529-4128 tions of the manufacturer shall not be provided, that when it is resold, the used Fax: (206) 202-3776 deemed a manufacturer. A product seller product is in essentially the same condi- Email: [email protected] that did not participate in the design tion as when it was acquired for resale; Accounting of a product and that constructed the iv) A finance lessor who is not other- Jackie Mintz product in accordance with the design wise a product seller. A “finance lessor” PO Box 27644 specifications of the claimant or another is one who acts in a financial capacity, Seattle WA 98125-2644 product seller shall not be deemed a who is not a manufacturer, wholesaler, Phone: (206) 522-6496 manufacturer for the purposes of RCW distributor, or retailer, and who leases a Email: [email protected] 7.72.030(1)(a).” RCW 7.72.010(2). product without having a reasonable op- However, a seller that labels a product Executive Director portunity to inspect and discover defects with its own name, trade name or Kristin Lewis in the product, under a lease arrange- trademark, or by advertising itself as the 800 Fifth Ave., Suite 4141 ment in which the selection, posses- maker of a product, will be held to be a Seattle WA 98104 sion, maintenance and operation of the manufacturer.
Load more

Recommended publications
  • Rescission, Restitution, and the Principle of Fair Redress: a Response to Professors Brooks and Stremitzer
    Valparaiso University Law Review Volume 47 Number 2 Winter 2013 pp.1-78 Winter 2013 Rescission, Restitution, and the Principle of Fair Redress: A Response to Professors Brooks and Stremitzer Steven W. Feldman Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons Recommended Citation Steven W. Feldman, Rescission, Restitution, and the Principle of Fair Redress: A Response to Professors Brooks and Stremitzer, 47 Val. U. L. Rev. 1 (2013). Available at: https://scholar.valpo.edu/vulr/vol47/iss2/22 This Article is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. Feldman: Rescission, Restitution, and the Principle of Fair Redress: A Re Article RESCISSION, RESTITUTION, AND THE PRINCIPLE OF FAIR REDRESS: A RESPONSE TO PROFESSORS BROOKS AND STREMITZER Steven W. Feldman* I. INTRODUCTION Analyzing a remedy that the reporter for the Restatement (Third) of Restitution and Unjust Enrichment describes as having “[e]normous practical importance and theoretical interest,”1 scholars in recent years have produced a flood of articles covering contract rescission and restitution.2 In their 2011 Article in the Yale Law Journal, Remedies on and off Contract, Professors Richard Brooks and Alexander Stremitzer weigh in on the discussion.3 Relying on microeconomic theory, which reflects the perspective of rational buyers and sellers, the authors’ thesis is that current legal doctrine is too restrictive in allowing buyers’ rescission and too liberal in granting them restitution.4 Although other commentators * Attorney-Advisor, U.S.
    [Show full text]
  • Unconscionability As a Sword: the Case for an Affirmative Cause of Action
    Unconscionability as a Sword: The Case for an Affirmative Cause of Action Brady Williams* Consumers are drowning in a sea of one-sided fine print. To combat contractual overreach, consumers need an arsenal of effective remedies. To that end, the doctrine of unconscionability provides a crucial defense against the inequities of rigid contract enforcement. However, the prevailing view that unconscionability operates merely as a “shield” and not a “sword” leaves countless victims of oppressive contracts unable to assert the doctrine as an affirmative claim. This crippling interpretation betrays unconscionability’s equitable roots and absolves merchants who have already obtained their ill-gotten gains. But this need not be so. Using California consumer credit law as a backdrop, this Note argues that the doctrine of unconscionability must be recrafted into an offensive sword that provides affirmative relief to victims of unconscionable contracts. While some consumers may already assert unconscionability under California’s Consumers Legal Remedies Act, courts have narrowly construed the Act to exempt many forms of consumer credit. As a result, thousands of debtors have remained powerless to challenge their credit terms as unconscionable unless first sued by a creditor. However, this Note explains how a recent landmark ruling by the California Supreme Court has confirmed a novel legal theory that broadly empowers consumers—including debtors—to assert unconscionability under the State’s Unfair Competition Law. Finally, this Note argues that unconscionability’s historical roots in courts of equity—as well as its treatment by the DOI: https://doi.org/10.15779/Z382B8VC3W Copyright © 2019 California Law Review, Inc. California Law Review, Inc.
    [Show full text]
  • Defenses to Breach of Warranty Actions
    Products Liability Group Defenses to Breach of Warranty Actions By: Bradley C. Nahrstadt Williams Montgomery & John Ltd. 233 S. Wacker Drive, Suite 6100 Chicago, Illinois 60606 312.443.3200 phone 312.630.8500 fax [email protected] www.willmont.com In 1982, the Illinois Supreme Court ruled that a product were mere puffery and did not become part of the benefit liability plaintiff seeking damages solely for economic of the bargain, then the defendant can show that no losses may not sue in tort. Moorman Manufacturing Co. v. express warranty existed. Whether statements made by National Tank Co., 91 Ill.2d 69, 435 N.E.2d 443, 61 Ill. the defendant constitute puffery or an express warranty is Dec. 746 (1982). Moorman and its progeny have made it generally a question of fact. Redmac, Inc. v. Computerland clear that the remedy for economic loss lies in contract. As of Peoria, 140 Ill.App.3d 741, 489 N.E.2d 380 (3rd a result, Illinois plaintiffs must look to warranties as the Dist. 1986). No bright-line distinction between express basis for economic loss claims, which in turn has increased warranties and puffing exist, but sales talk which “relates the importance of warranty law in this state. only to the value of the goods or the seller’s personal opinion It is a rare products liability case that is filed today that and commendation of the goods is considered puffing and is does not contain some type of breach of warranty claim. In not binding on the seller.” Id. at p.
    [Show full text]
  • Contract Law Fundamentals How the Position Differs Across Europe
    Contract law fundamentals How the position differs across Europe Introduction Welcome to our overview of contract law fundamentals. Key contacts We hope you find this guide helpful. The aim is to explore a number of UK important contractual issues under English law and compare the position in Victoria Gwynedd-Jones Knowledge Lawyer Director France, Germany and the Netherlands. T +44 117 917 4440 [email protected] There is an important distinction under English law between a warranty and a representation – but what is the position in other European territories? Does France Alexandre Glatz the same distinction apply under German law, with the same consequences for Partner remedies? Is a duty of good faith implied into commercial contracts in France T +33 1 84 8 24576 and the Netherlands – and, if so, does this duty apply during the negotiation [email protected] period? In this interactive document, we explore these issues and more. Isabelle do Rego Associate If you have any questions, please feel free to contact the team of specialists in T +33 1 84 8 24546 the jurisdictions listed. [email protected] Germany Felix Hilgert Counsel, Maître en Droit T +49 221 5108 4160 [email protected] The Netherlands Sophie den Held Associate T +31 20 702 8932 [email protected] UK France Germany The Netherlands Is a duty of good faith implied into the performance There is no general duty of good There is an explicit duty of good A duty of good faith is implied into all Good faith forms a general principle of commercial contracts? faith implied into all commercial faith in all commercial contracts by contracts as a matter of statutory law.
    [Show full text]
  • Express and Implied Warranties
    Campbell University School of Law Scholarly Repository @ Campbell University School of Law Scholarly Works Faculty Scholarship 1980 Some Thoughts About Warranty Law: Express and Implied Warranties Richard A. Lord Campbell University School of Law, [email protected] Follow this and additional works at: https://scholarship.law.campbell.edu/fac_sw Recommended Citation Richard A. Lord, Some Thoughts About Warranty Law: Express and Implied Warranties, 56 Notre Dame L. Rev. 4 (1980). Available at: https://scholarship.law.campbell.edu/fac_sw/25 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Repository @ Campbell University School of Law. It has been accepted for inclusion in Scholarly Works by an authorized administrator of Scholarly Repository @ Campbell University School of Law. SOME THOUGHTS ABOUT WARRANTY LAW: EXPRESS AND IMPLIED WARRANTIES* RICHARD A. LORD** I. INTRODUCTION ............................ 511 II. EXPRESS WARRANTIES ...................... 512 A. CREATION OF THE EXPRESS WARRANTY ............. 513 1. Creation by Affirmation of Fact or Promise .......... 513 2. Creation by Description....................... 516 3. Creation by Sample or Model ................... 518 4. Basis of the Bargain.:Effect of Affirmation, Promise, Description, or Sample on the Transaction........... 525 a. Basis of the Bargain: The Pre-Sale Contributionand Expectation Test ......................... 528 b. Basis of the Bargain: Contribution, Expectation, and the Transactionas a Whole - Recovery in a Post-Transaction
    [Show full text]
  • Automotive Industry Trade Practices Regulations, Which Provide Consumers with Many Protections When Buying a Car
    Dear Fellow Pennsylvanian, Whenever you spend your hard-earned money, you deserve a fair deal, but some people think they can make a quick buck by scamming you- taking your money and not giving you what they promised. As your Attorney General, I am committed to protecting all Pennsylvanians from consumer fraud and illegal business practices. There is no shortage of scammers seeking to take advantage honest consumers, and I’m ready to take on each and every one of them for you. Any of us can fall victim to a scammer, whether it be online, in person, or even someone we know and trust. The best way fight scammers is to avoid becoming a victim of consumer fraud in the first place. To help do this, you’ll need to know your rights and responsibilities as a consumer. This booklet is designed to provide you with important information on consumer- related topics, including tips for spotting a variety of deceptive practices; examples of fraudulent activities; and helpful tips for protecting yourself. As Attorney General, my job is to protect all Pennsylvanians from fraud and scams. Our staff is ready to help you, no matter how large or small the problem. If you have any questions on a consumer-related matter or would like to file a complaint, please contact my office’s Bureau of Consumer Protection using any of the following methods: Call toll-free at 1-800-441-2555 Email us at [email protected] Visit our website at www.attorneygeneral.gov and sign up for alerts Josh Shapiro Attorney General Table of Contents 5 The Bureau of Consumer
    [Show full text]
  • Construction Contract (Includes Warranty Language)
    CONSTRUCTION CONTRACT (INCLUDES WARRANTY LANGUAGE) THIS CONSTRUCTION CONTRACT (hereinafter referred to as “Contract” or “Agreement”) is made by and between the CITY OF MONTROSE, a Colorado home rule municipal corporation, whose address is 433 S. First Street, P.O. Box 790, Montrose, Colorado 81402 (“OWNER” or “City”) and _____________________________________________, (“CONTRACTOR”), a ________ corporation(?), whose address is ______________ for the Construction Project (“Project”) known as: Project Name The OWNER's Representative (“OR”) is: ____________________, Public Works Director NOW THEREFORE, in consideration of the mutual promises made herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to the terms and conditions set forth herein, the OWNER and CONTRACTOR agree as follows: ARTICLE 1 THE WORK: The CONTRACTOR shall perform all the Work required by the Contract Documents and attached exhibits, if any, for: ______________________. ARTICLE 2 TIME OF COMMENCEMENT AND COMPLETION: The Work to be performed under this Contract shall be commenced upon written notice from the OWNER to proceed, and pursued with due diligence thereafter until completion, which shall be on the ______ day of _____________________, 200___. ARTICLE 3 CONTRACT AMOUNT AND BASIS: The OWNER shall pay the CONTRACTOR an amount not to exceed that set forth in Exhibi t ‘A’ for the satisfactory performance of the Work, subject to additions and deductions by Change Order as provided in the General Conditions. ARTICLE 4 PROGRESS PAYMENTS: Based upon Applications for Payment submitted to the OR by the CONTRACTOR and Certificates for Payment issued by the OR the OWNER shall make progress payments to the CONTRACTOR as follows: 1.
    [Show full text]
  • Strict Product Liability Claim
    CHAPTER 14 PRODUCT LIABILITY Introductory Note A. STRICT PRODUCT LIABILITY 14:1 Elements of Liability 14:2 Manufacturer — Defined 14:3 Defective, Unreasonably Dangerous — Defined 14:4 Warnings and Instructions 14:5 Presumptions — Noncompliance with Governmental Standards 14:5A Presumptions — Compliance with Governmental Standards 14:5B Presumptions — Ten-Year Use of Product 14:6 State-of-the-Art 14:7 Damage Alone Not Proof Product Was Defective or Unreasonably Dangerous B. PRODUCT LIABILITY FOR BREACH OF WARRANTY 14:8 Breach of Express Warranty Under U.C.C. — Elements of Liability 14:9 Express Warranty — Defined 14:10 Breach of Implied Warranty of Merchantability — Elements of Liability 14:11 Implied Warranty of Merchantability — Defined 14:12 Implied Warranty of Wholesomeness of Food — Defined 14:13 Breach of Implied Warranty of Fitness for a Particular Purpose — Elements of Liability 14:14 Implied Warranty of Fitness for a Particular Purpose — Defined 14:15 Notice of Breach of Warranty — What Constitutes 14:16 Implied Warranties — Creation and Exclusion or Modification C. PRODUCT LIABILITY FOR NEGLIGENCE 14:17 Manufacturer’s Liability Based on Negligence — Elements of Liability 14:18 Manufacturer’s Duty as to Parts Obtained from Other Sources 14:19 Manufacturer’s/Seller’s Duty to Warn 14:20 Liability for Injury from Food or Beverage in Sealed Container — Elements of Liability 14:21 Prima Facie Negligence Liability for Injury from Food or Beverage in Sealed Container (Res Ipsa Loquitur) D. STRICT PRODUCT LIABILITY FOR MISREPRESENTATION 14:22 Elements of Liability 14:23 Misrepresentation of Material Fact — Defined 14:24 Reasonable Reliance — Defined E.
    [Show full text]
  • Restricting Disclaimer of the Warranty of Merchantability in Consumer Sales: Proposed Alternatives to the UCC
    William & Mary Law Review Volume 12 (1970-1971) Issue 4 Article 10 May 1971 Restricting Disclaimer of the Warranty of Merchantability in Consumer Sales: Proposed Alternatives to the UCC William M. Musser III Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Contracts Commons Repository Citation William M. Musser III, Restricting Disclaimer of the Warranty of Merchantability in Consumer Sales: Proposed Alternatives to the UCC, 12 Wm. & Mary L. Rev. 895 (1971), https://scholarship.law.wm.edu/wmlr/vol12/iss4/10 Copyright c 1971 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr RESTRICTING DISCLAIMER OF THE WARRANTY OF MERCHANTABILITY IN CONSUMER SALES: PROPOSED ALTERNATIVES TO THE UCC In response to the widespread support for the abolition of the re- quirement of privity of contract in suits for breach of warranty,1 the drafters of the Uniform Commercial Code offered alternatives A, B and C to section 2-318.2 The primary motivation for the promulga- tion of these alternatives was the judicial recoguition in at least twenty jurisdictions of the doctrine of strict liability in tort,' which was thought to be in conflict with the adoption of the Uniform Commer- cial Code and its intended purpose of pre-emption of the law of sales. To avoid this apparent court-legislature conflict in states which recog- nized the doctrine of strict liability in tort and to discourage other jurisdictions from adopting the tort theory, the alternatives were offered with the hope of regaining or preserving the unifornuty intended by the Code.
    [Show full text]
  • Reverberations from the Collision of Tort and Warranty (Products Liability Law Symposium in Memory of Professor Gary T
    University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 2002 Reverberations from the Collision of Tort and Warranty (Products Liability Law Symposium in Memory of Professor Gary T. Schwartz) James J. White University of Michigan Law School, [email protected] Available at: https://repository.law.umich.edu/articles/380 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Commercial Law Commons, Legal History Commons, and the Torts Commons Recommended Citation White, James J. "Reverberations from the Collision of Tort and Warranty (Products Liability Law Symposium in Memory of Professor Gary T. Schwartz)." S. C. L. Rev. 53, no. 4 (2002): 1067-84. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. REVERBERATIONS FROM THE COLLISION OF TORT AND WARRANTY JAMES J.WITE* I. INTRODUCTION ........................................... 1067 II. ANCIENT HISTORY ......................................... 1069 Ill. RECENT HISTORY ......................................... 1072 IV. DAMAGES IN TORT AND WARRANTY FOR INCHOATE INJURY ........ 1076 V. CONCLUSION ............................................. 1083 I. INTRODUCTION In his famous Stanford Law Review article, When Worlds Collide,' Professor Marc Franklin foretold the troubles for American law in the impending collision of the tort of strict liability with the warranty of merchantability.2 We daily suffer the reverberations from that collision as courts struggle with the proper application of strict tort liability and breach of warranty in products liability cases.
    [Show full text]
  • Answers to 32 Questions Public and Private Owners Ask About Contract Bonding
    National Association of Surety Bond Producers ANSWERS TO 32 QUESTIONS PUBLIC AND PRIVATE OWNERS ASK ABOUT CONTRACT BONDING A PUBLICATION ANSWERS TO 32 QUESTIONS PUBLIC AND PRIVATE OWNERS ASK ABOUT CONTRACT BONDING he National Association of Surety Bond Producers (NASBP) is a national trade association, headquartered in Bethesda, MD, comprised of agencies employing surety bond producers placing bid, performance, payment, and warranty bonds Ton federal, state, local, and private projects in the United States and around the world. Surety bonds provide critical guarantees and security for owners of construction projects and many of the subcontractors that supply labor and materials for those projects. Surety bonds are unparalleled, proven risk management mechanisms that help ensure public and private construction projects are properly built and that certain subcontractors and suppliers are paid. NASBP is aware that surety bonds can be complex and that many stakeholders in the construction industry, including owners, understandably have misconceptions about the nature and purpose of surety bonds. Sometimes those misconceptions result from lack of sufficient knowledge, and sometimes those misconceptions result from unintended misdirection. NASBP is determined to try to eliminate those misconceptions for the benefit of the construction and surety industries and public and private owners by creating a series of questions and answers that address surety bonds. To contact a professional surety bond producer, go to the NASBP membership directory on the NASBP website, nasbp.org, and click on “GET A BOND” and then “FIND A PRODUCER.” The producers are listed by state.The National Association of Surety Bond Producers (NASBP) is a national trade association of bond producer agencies, whose employees are experts in surety.
    [Show full text]
  • Eliminating the Phrase Represents and Warrants from Contracts
    ELIMINATING THE PHRASE REPRESENTS AND WARRANTS FROM CONTRACTS KENNETH A. ADAMS† The phrase represents and warrants is a fixture in English-language contracts. It’s used to introduce statements of fact, as are the verbs represents and warrants used separately. And the words representation and warranty are used to refer to statements of fact in a contract. In the United States, courts and most practitioners attribute no particular significance to use of represents and warrants to introduce statements of fact, although some U.S. commenters suggest that the phrase has implications for remedies. By contrast, in England, courts, practitioners, and commentators accept that those verbs do have implications for remedies, with represents leaving open the possibility of tort remedies for misrepresentation and warrants leaving open the possibility of contract remedies for breach of warranty. Given that the U.S. and English legal systems share so much, and given that contracts drafted in the United States and England share essentially the same language, the different treatment accorded the verbs represents and warrants under the two systems suggests that something is amiss. Something is indeed amiss, in that it’s pointless and confusing to use represents or warrants in a contract to introduce statements of fact. Those who attribute significance to those verbs, whether used separately or together, ignore the powers and responsibilities of those who draft or review contract language. This article will show that to avoid this confusion, you should do two things. First, use states to introduce statements of fact in a contract. And second, if you want to exclude particular remedies or make sure that they’re available, do so explicitly instead of relying on inscrutable code.
    [Show full text]