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BU Midterm 2 - Phelim Lennon BU 211 Professor Katz Midterm...

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Phelim Lennon BU 211 Professor Katz April 15, 2008 Midterm II: Question 1 In the law, a cause of action (sometimes called a claim) is a set of facts sufficient to justify a right to sue. The phrase may refer to the legal theory upon which a plaintiff brings suit. In the case Thomas v. Pro Bleachers there are a few different causes of action that the plaintiff could use. One cause of action that the plaintiff could use is that Pro Bleachers demonstrated negligence. The negligence the plaintiff Roy Thomas could sue on is in the design of their bleachers and failure to warn. In discovery, the plaintiff Roy Thomas had an expert examine the broken bench section. The expert found that a weld on the metal bracketing and hinge system had broken with a clean shear. In addition, he found the railing at the side of the bleacher to have been wholly inadequate. It was only 15 inches high and far too light. It may have prevented seated fans from falling, but it was totally inadequate for people climbing to their seats. The lock mechanism was not secured at the time of the collapse, however, there is no documentation stating what the repercussions are if the lock is not secured. If it collapsed because the lock was not secured, this is a foreseeable event for Pro Bleachers and some sort of action should have been taken to prevent these things from happening. Another cause of action that the plaintiff could use is suing for breach of warranty. A warranty is a guarantee or a binding promise. Warranties may be either expressed or implied. Implied warranties automatically arise out of a transaction. To meet the standard of merchantability the goods need to meet six standards. If the product does
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not conform to those standards and, as a result of this nonconformity, the purchaser or his or her property is injured, the purchaser may recover for breach of implied warranty of merchantability. The standard that the bleachers would have broken is that it must be fit for the ordinary purpose for which the goods are used. Climbing up the bleachers instead of using the stairs is a ordinary purpose that is foreseeable for any bleacher manufacturers. In this case, climbing up the bleachers instead of the stairs should not cause a collapse. Finally, a third cause of action Thomas could use is strict liability in tort. Under this theory, the manufacturer, distributor , or retailer may be held liable to any reasonably foreseeable injured party. Unlike causes of action based on negligence, product liability actions based on strict liability in tort focus on the product. The issue in such cases is whether the product was in a “defective condition, unreasonably dangerous” when sold. The clean shear of the weld could be found to be a defect in the production of the bleachers.
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