Exam Review (2nd half).docx

Exam Review (2nd half).docx - Legal Environment of Business...

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Legal Environment of Business University of St. Thomas, Opus College of Business Dr. John Dehrer-Wendt Second Half Highlight Notes Negligence and Product Liability Historically Caveat Emptor = Let the Buyer Beware Warranties (Based in Contract) Conformity to Description - A sample given or a model Express Warranties – Affirmations of Fact & Promises – A warranty that the seller creates with his/her words or actions. (versus Puffery which is an opinion) Implied Warranty of Merchantability – that the goods will be fit for their ordinary purpose. – that the goods are fit for the Buyer's special purpose , provided that the Seller knows of that purpose and that the Buyer is relying on the Seller's expertise. Disclaimers or Exculpatory Clauses On Express Warranties – Very difficult to disclaim because it is the basis if the bargain. On Implied Warranties – Can be disclaimed if conspicuously stating "as is" or "with all faults." o Cumulation – You can have both express and implied warranties in the same contract Negligence (Based in Tort) Plaintiff must prove: That Defendant owed him a duty of care -- Duty of care is measured by a standard or reasonableness (What would a reasonable do under the same or similar circumstances?) That the Defendant breached that duty by falling below a standard of care – Defendant failed to use reasonable care That the Plaintiff sustained damage – Without an injury, there is nothing to recover That the breach was the proximate cause of the damage – Was the victim's injury a reasonable result of what the tortfeasor did? Defenses: Assumption of Risk – Plaintiff knew of the specific risks and voluntarily assumed it Contributory Negligence -- Plaintiff failed to exercise reasonable care – if the plaintiff contributed only1% to their own injury they recover nothing! Most states have abandoned this approach for Comparative Negligence) 1
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Comparative Negligence -- The amount of the plaintiff’s liability is reduced by the amount the plaintiff contributed to their own injury. The plaintiff can recover even if they were partially responsible. (N.B. In Minnesota if the plaintiff is more than 50% responsible, they recover nothing!!!) Negligence per se There is a violation of a statute. Unlike ordinary negligence, a plaintiff alleging negligence per se need not prove that a reasonable person should have acted differently -- the conduct is automatically considered negligent, and the focus of the suit will be over whether it proximately caused damage to the plaintiff.
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