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needs to be an analysis of what extent the theory of “making as a whole” applies by following two types of compensatory damages: special and general. Special damage would apply when NBD is subjected to paying for property damage that occurred by Dualplex but also involves hospital fees and salary compensation for the work missed by the consumer. General damage is not easily quantifiable as it pertains to individual pain and suffering caused by the defendant. The amount associated with general damage will be mostly dependent on the skills of NBD attorneys, the sensitivity of the juries, etc. Another damage that could be awarded is punitive damage, which is intended to punish a tortfeasor for engaging in particularly wanton or reckless conduct that reflects a disregard for the 4
interest of others (Tort damages – UMGC, 2020). It is limited by courts to approximately three times the amount of compensatory damages. NBD cannot rule out paying punitive damages, in addition to compensatory damages, because it was found that the battery defect was fully acknowledged, and NBD proceeded with selling. When a product unreasonably malfunctions, it is the manufacturer’s responsibility to compensate for the damages incurred, regardless of the warranty status. Although NBD has proposed a disclaimer that Dualplex excludes all express and implied warranties, the exclusion of warranties does not explicitly describe what problem it is excluding from. It is difficult to tell whether the warranty is excluded from overheating, igniting, or typical malfunction that is found from other household electronics. The absence of an explicit warning label about these dangers will put NBD in a compromising position in the court. The inconsistencies in the disclaimer allow the Magnuson-Moss Act to take effect for the protection of consumers. Under the act, the terms and conditions of the product must be explicitly written if the guaranteed product becomes defective or malfunctions. (Warranties – UMGC, 2020). The potential damages surrounding an overcharged battery must have been clearly depicted and warned consumers of the potential risks. Because those critical functionalities were not in the disclaimer, the Magnuson-Moss Act overrides the warranty disclaimer in the manual.Defenses for NBD against each claimThere are several ways NBD can defend itself against the claims mentioned above but they are unlikely to avoid settlement against the lawsuit. With that said, assumption of the risk principle would be the most plausible argument NBD can make in the court. Assumption of the risk arises when the plaintiff knowingly and willfully undertakes an activity made dangerous by the negligenceof another (Fraud and negligence torts, UMGC 2020). When the majority of the consumers claim 5