Right on Jim!
Note that the disclaimer of warranties is not valid against a tort claim.
It is intended to avoid liability under contract theory for violation of the
promises made relating to the product. Certain representations made
relating to the use of the product can become "express warranties" under
certain circumstances. The warranty for merchantability only means that the
product will be recognized by persons dealing in that product as what it is
represented to be. Warranties of fitness for intended purpose are more
direct. Hence the old story about the lady who tried to dry out her cat
after a nasty winter storm in the microwave and claimed she was not properly
warned about how it could be used. So the disclaimer of warranty will not
shelter the manufacturer against a tort claim. But the biggest problem with
warranty based claims is that they are based on contract and most injured
third parties are not parties to the contract anyway (no"privity"). This
was part of the reason for the development of the "manufacturers strict
liability" concept.
The land owner will always be liable to third parties under a negligence
theory depending on the status of the person on his property. (The degree of
responsibility depends on whether the person is an "invitee," "licensee," or
"trespasser."). Having a professional provides some shelter and maybe even
some additional insurance and in many cases the landowner may have a claim
for indemnity against the professional. The manufacturer will still be on
the hook, though, if the product is defective. I had a case in Montana once
where a piece of strapping cable was being used as an elevator rope. When
it broke we were sued along with the store owner on the claim that the cable
was defective because we had not warned the store owner not to use it as an
elevator rope. The store owner paid and we received a verdict of not liable
from the jury for a variety of very good reasons.
So the bottom line is that failure to provide detailed instructions may
avoid a claim of violation of a warranty but it does not avoid the claim
that the product was defective for failure to tell the user how to use it
properly or, more importantly, how not to use it improperly.
73
Bill
W7VP
----- Original Message -----
From: "Jim Lux" <jimlux@earthlink.net>
To: <wc1m@msn.com>; "'JC Smith'" <jc-smith@comcast.net>; "'Rick Tavan N6XI'"
<rtavan@gmail.com>; <towertalk@contesting.com>
Sent: Tuesday, June 06, 2006 1:36 PM
Subject: Re: [TowerTalk] Action against US Tower?
> At 08:33 AM 6/6/2006, Dick Green WC1M wrote:
>
>>Another thing they do to avoid liability is say that the tower must be
>>installed by a professional.
>
> And who's to say what "professional" means. It's not like there's some
> governmental agency licensing tower installers as such(notwithstanding
> that
> there's a fair amount of government regulation of one sort or another
> covering tower work, as an occupation.) Is it someone who's carrying
> liability insurance? Someone who has a contractor's license (which
> essentially means they've got insurance)?
>
>>They used to have a loose network of installers
>>who knew how to install and maintain the tower. Don't know if they still
>>do.
>>If you install it yourself and claim injury or damage occurred due to lack
>>of documentation, they would probably point to disclaimers saying the
>>tower
>>is designed to be installed only by professionals.
>
> but that disclaimer, as has been pointed out, is probably worthless in a
> lawsuit. You can't really disclaim liability for defects, except in some
> fairly special cases. (all that "implied warranty of merchantability and
> fitness for use" stuff.) More to the point, in the event of a disaster,
> there's a sort of dance of the attorneys as everyone jockeys for position
> until the case settles. Rarely would it go to court, where the
> disclaimer's validity would actually get tested. What having an (insured)
> professional installer in the mix means is there's at least one more party
> in the dispute.
>
> Jim
>
>
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