might the plaintiffs fare better under a 402a strict liability theory where contractual disclaimers purporting to exclude personal injuries would be deemed unconscionable?
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From: Academy of Legal Studies in Business (ALSB) Talk [[log in to unmask]] On Behalf Of Michael O'Hara [[log in to unmask]]
Sent: Sunday, November 22, 2009 8:50 PM
To: [log in to unmask]
Subject: "as is" means more than "as is"

ALSBTALK:

A consumer's reasonable expectations have a way of morphing the meaning of words.

If a used car is sold "as is" (i.e., the FTC required window card is marked "as is" rather than marked "warranty") via an express contract that disclaims all implied warranties, then does a licensed used car dealer include an implied warranty of the dealer's reasonable efforts to discover safety defects and sale warrants no such defects?  In Nebraska it does.  This dealer actively sells in all 50 States.

http://www.supremecourt.ne.gov/opinions/2009/november/nov6/s08-807.pdf


   On the same day that a couple purchased of a used van “as is” with a disclaimer of all implied warranties from dealer, the wife was injured when their 3-year-old daughter allegedly pulled the gearshift out of park. (The couple testified that the key was out of the ignition at the time of the accident.) The couple brought suit against the dealer alleging two alterative theories: negligence and breach of implied warranty of merchantability and the district court entered summary judgment in favor of the dealer. On appeal, the Nebraska Supreme Court concluded that the dealer effectively disclaimed all implied warranties, including the warranty of merchantability. However they also concluded that commercial dealers of used vehicles have a duty to exercise reasonable care to discover any existing safety defects that are patent or discoverable in the exercise of reasonable care or through reasonable inspection. Because there are genuine issues of material fact as to whether the dealer breached this duty and, if so, whether their breach was the proximate cause of the wife’s injuries, the Court concluded that the district court incorrectly granted summary judgment in favor of the dealer on the couple’s negligence claim.

Wilke v. Woodhouse Ford, 278 Neb. 800 (2009)<http://www.supremecourt.ne.gov/opinions/2009/november/nov6/s08-807.pdf>

Filed November 6, 2009. No. S-08-807.

Michael

Professor Michael J. O'Hara, J.D., Ph.D.
Finance, Banking, & Law Department
College of Business Administration
Roskens Hall 502
University of Nebraska at Omaha
Omaha NE 68182
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(402) 554 - 2823 voice fax (402) 554 - 2680
http://cba.unomaha.edu/faculty/mohara/web/ohara.htm