B. Reliance The second element that a plaintiff must prove is that the plaintiff relied on the express warranty. Courts look at whether a buyer relied on the express warranty created by the defendant when deciding whether to buy a product. Moore v. Vanderloo, 386 N.W.2d 108, 112 (Iowa 1986). Courts look at whether the warranty was important to their decision or would be important to a reasonable buyer. Id. For example, in Nationwide, the defendant was already set to be the lead company on a project before the express warranty was created. Nationwide Agribusiness Ins. Co. v. SMA Elevator Const. Inc., 816 F. Supp. 2d 631, 680 (N.D. Iowa 2011). The court found that to be a strong argument that the company did not rely on the information when reaching its decision to purchase the product. Id. Our client can argue that the plaintiff did not rely on the statement by the AMS representative. Similar to basis of the bargain, the plaintiff did not rely on the express warranty because it was made after the decision to purchase the medical device was made. From the facts, it also does not appear that the plaintiff himself had this information as the statement was made to doctors at the clinic. Therefore, the plaintiff could not have relied upon information that he did not have. C. Proximate Cause …show more content…
To prove proximate cause, a plaintiff must show that that their injuries were caused by or contributed to by the breach of warranty. Nationwide Agribusiness Ins. Co. v. SMA Elevator Const. Inc., 816 F. Supp. 2d 631, 681 (N.D. Iowa 2011). Meaning that if a breach of warranty did not occur then an injury would either not have occurred or would have been less significant. Id. As such, defects must be “substantial and sufficiently serious” instead of merely “small, minor or insignificant.” Iowa Civ. Jury Instr. 1100.4
The defense’s argument that Abigail’s offer did not specify a particular a purebred was not upheld by the jury. Alex thought that he was getting a Chihuahua, or at least a purebred dog. “Such a misrepresentation is one that is likely to induce a reasonable person to assent to a contract” (Twomey & Jennings, p. 273). By delivering a dog that did not reasonably fit within the slightest specifications of a purebred, Abigail blatantly disregarded the contract between she and Alex. Her ad stated that she was selling “purebred toy breed puppies”, not a mix bred (mutt) and definitely not a full size dog, which is what Alex later found out to be the dog he received. The plaintiff was in fact harmed by Abigail’s actions in the form of having paid money in good faith that she would uphold her half of the agreement. The fact that Alex accepted the puppy from Abigail and now has an attachment to the dog, does not excuse Abigail’s actions, nor does it acquit her of any wrongdoing. The plaintiff has established the four elements of
“In tort law, the doctrine which holds a defendant guilty of negligence without an actual showing that he or she was negligent. Its use is limited in theory to cases in which the cause of the plaintiff's injury was entirely under the control of the defendant, and the injury presumably could have been caused only by negligence”(Burt, M.A., & Skarin, G.D. (2011). In consideration of this, the defendant argues that the second foundation of this principle should be solely based on common knowledge of the situation. Although, there is a experts testimony tartar is no basis in this case , in the experts testimony or anything else, for indicating that the plaintiffs injury resulted from the negligence of the defendant. The court correctly found the defendant not liable under the Res ipsa
2. In recent years, there has been a growing attempt to measure the performance of health care providers. The federal government and the states have published data on how hospitals are compared to acceptable clinical standards with regard to pneumonia. Explain how these data could affect the consumer decision-making process.
The theories in which I base my decision on are res ipsa loquitor and negligence per se. Res ipsa loquitor means that “it creates a presumption that the defendant was negligent because he or she was in exclusive control of the situation and that the plaintiff would not have suffered an Injury”. Negligence per se means “an act of the defendant that violates a statute regulation or ordinance can be used to establish a breach of the duty of due care” (Mayer et al,. 2014, p. 163). Therefore, the injuries of the Prius driver and the people at the train station, I believe that George is at fault of negligence, because of negligence, carelessness and is foreseeable. Now as for the sparks from the wiring caught that lead to the other chain of events. I feel that George should not be held accountable for negligence, because it was unforeseeable. He could not prevent that it can cause a barn to explode and setting forth a series of
This trend began to ebb with MacPherson v. Buick Motor Co., and the ruling by an appellate court that favored MacPherson, the plaintiff. This case, however, was more a result of political expediency than a reasoned verdict based on fact. In this case, the plaintiff argued that his 1911 Baby Buick had a defective wheel that collapsed while traveling at a low rate of speed, hitting a telephone pole, and pinning him under, breaking his wrist and cracking several ribs; however, the facts of the trial revealed that the accident as it was recounted by the plaintiff was a physical impossibility, but due to the increasing pressures to dispense with privity rulings, the court imposed on the defendant the responsibility of inspecting and discarding defective wheels, implying causal negligence even though the plaintiff had driven the vehicle for more than a year in less than perfect road conditions without a mishap. (MacPherson Tort Story; MacPherson v. Buick Motor Company: Simplifying the Facts While Reshaping the Law, Pg.
The second issue is whether or not the defendant has an obligation to reimburse for an injury. The outcome of this second issue depends whether or not it is rational for the defendant to have to pa...
However prior to the modern understanding of Consumer Rights there was a understanding of Caveat Emptor – Buyer Beware –this has been a fundamental premise of consumer wellbeing prior to World War ‖ , relation to transactions, principle that the buyer purchases at his own risk in the absence of an express warranty in the contract . This common law rule assumes that buyers and sellers are in an equal bargaining position. However there has been evident change in consumer rights which have contributed to the precedence of using Caveat Emptor is no longer acceptable, apparent in the case ACCC v Hewlett Packard Australia (HP), illustrated that no longer can a company ...
Proximate Cause: The shoulder and rotator cuff injuries were within the scope of the risks that made us determine that the dropping of Vicky’s body was a breach. Because Dwayne dropped Vicky, Dwayne’s dropping of Vicky’s body proximately caused the injuries sustained. Felix’s carrying of the body was a cause in fact but not the proximate cause of the injuries Vicky
Before there can be a nursing malpractice case, the plaintiff must prove certain legal elements. These elements include: 1) duty of care: the defendant nurse had a duty of care toward the plaintiff; 2) breached of duty: that the defendant breached that duty, usually by acting negligently or carelessly; 3) causation: that the injury would not have happened if the
Charles Hughes, president and CEO of Land Rover North America (LRNA), and his executive committee want to expand LRNA’s reach within North America. Based on the growing strength of the U.S. SUV market, research which suggests consumers are seeking vehicles that can help them have “experiences” while being practical, safe, reliable and luxurious, the success of the Discovery in the U.K. and near doubling of the Land Rover brand worldwide, LNRA is seeking to become the “world’s premier 4x4 specialty company” through effective brand, product and retail strategies. LNRA’s success hinges on making the correct positioning, marketing mix and retailing decisions.
SUN Microsystems Case Analysis Sun Microsystems had an extremely tough decision to make in regards to its procurement strategy. They had to decide if they were going to take on an “E-sourcing” or “dynamic bidding” auction-type strategy with making purchases from their suppliers. Taking on this type of procurement strategy would benefit Sun with cost-savings on procurements, but may jeopardize their supplier relationships and quality of inputs for Sun products. After reviewing the enclosed financial data for Sun from 1996-1999, it is apparent that some trends are consistent. Sun’s cost of goods sold has consistently been around half of their revenue for prior fiscal years, resulting in an approximate gross margin of 50%.
Were the items specially manufactured goods? Is the defendant to blame since the items cannot be sold at any other location? Is the verbal agreement for the sale of goods more than $500 enforceable?
Would privity of contract be required for Kolchek to succeed in a product liability action against Great Lakes?
Notably, the class of potential defendants in a product liability is extensive; it may include everyone in the distribution chain of the product (Wong 2010). The defendant may range from the manufacturer of the product to the seller or the lessor of the product. In addition, anyone who services the product or installs the product after purchase may stand liable in the event that the product is defective. Principally, the basis of action in a product liability litigation are the negligence, intent, strict liability, breach of implied warranty of merchantability, and general misrepresentation (Wong 2010). In practice, prosecutions in product liability have significantly relied on the Third Restatement of Torts, on section 402A
Noel, Dix. “Defective Products: Abnormal Use, Contributory Negligence and Assumption of Risk” Vanderbilt Law Review. New York: Bedford/St. Martin’s, 2002. 313-23. Print.