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Torts III

Torts III. Product liability. Product liability. 1) M anufacturers Includes wholesalers , distributors , retailers . l essors , freebies (Rest. 3rd of Torts § 1 ) 2) Unreasonably dangerous product 3) Reaches the customer without alterations. Unreasonably defective products.

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Torts III

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  1. Torts III Product liability

  2. Product liability 1) Manufacturers Includeswholesalers, distributors, retailers. lessors, freebies (Rest. 3rd of Torts § 1) 2) Unreasonablydangerousproduct 3) Reachesthe customerwithout alterations

  3. Unreasonablydefectiveproducts • 2 A) Manufacturingdefects • 2 B) Design defects • 2 C) Inadequatewarnings or instructions • Risk-utility test • Consumers’ reasonableexpectations

  4. Defences • 1) Product misuse/contributorynegligence • 2)Assumptionofrisk • 3)Sophisticatedbuyer • 4)Manufacturedaccordingto normal standards

  5. Electrolux-case (wood cutter) • The facts of the case? • Legal question? • Analysis? • Conclusion?

  6. Autoliv-case • The facts of the case? • Legal question? • Analysis? • Conclusion?

  7. Morgan Stanley case Breachofcontract: • 1)the existenceofcontract • 2) theirperformance • 3) defendant’sbreach • 4) damages Parolevidence not allowedif • 1)integration • 2)clear & unambiguouslanguage • 3) breach Exception Paroltestimony ok toproveconditionprecedent, if not contradictingwrittenagreement

  8. IRAC method • Issue: The first problem is…. • Rule: Accordingto § 302 NYCPLR…. • Analysis: In thiscase…. • Conclusion: In conclusion…

  9. Personal Jurisdiction § 301 NYCPLR: • Physical presence in New York/ domiciled in New York • Doing business in New York • Consensual jurisdiction § 302 NYCPLR: • Transactsbusiness in the state/contractoutside NY tosupplygoods and services in NY • Commitsa tortiousact in the state • Commitsa tortiousactoutside the statewhichcauses harm in NY & • A) solicitsbusiness or gets revenue from NY OR • B) shouldhaveexpected the acttohaveconsequences in the state OR • C) ownsproperty in NY • In rem jurisdiction

  10. Different association forms Soleproprietorship General partnership Limitedpartnership Limitedliabilitypartnership Tax choices S-corporation/C-corporation LLC Closedcorporation Corporation Public corporation Publiclytradedcorporation

  11. Feedback contracts • For importantcontract terms…whyareyou not using….. • CAPITALS! • Boldtype!

  12. Feedback contracts • Kilimanja Inc., a company incorporated in the state of New York, with a share capital of $3,000,000 (three million) with its head office based in Niagara Street 2000, 14207 Buffalo, New York, U.S.A. • Represented hereto by Mr. John McCain, acting in his capacity as Chief Executive Officer, • Hereinafter “Buyer”, • On the one hand, This contract for the sale of goods is between Swedchick Inc., a Swedish-American corporation organized under the laws of the State of Delaware (the “Seller”),

  13. Feedback contracts • ”The Buyershallpay all taxesthatarise from the contract.” • Who is responsibletoreportsales tax to IRS? • Whopaystaxes on gross profits? • ” the Seller shall deliver the Goods DDP [Delivered-Duty-Paid]” • What duties are we talking about? • “Failure of Buyer to comply with these conditions will constitute irrevocable acceptance of the goods by Buyer. All notices between the parties must be in writing and delivered by courier or by certified mail, return receipt requested.”

  14. Feedback contracts • ” If the Sellerfailsto make goodof the Goods as statedherein, the Buyerreserves the right withoutprejudicetoitsotherrights under the Contract or otherwisetobuysuchdefectiveGoods from alternative sources and all additionalcostsincurredtherebyshall be recoverable from the Seller.” • Force majeure clause….+”If anyof the events mentionedabovecontinues for morethansix (6) consecutivemonths”

  15. Feedback contracts • “the parties will not be responsible in any way to the other party or any third party for any loss, damage, claim or demand, including special, indirect, consequential and incidental losses or damages.” • “(a) The clause above is valid unless otherwise stated in the contract or any contradicting terms in the contract exist.”

  16. Feedback contracts • Eachparty is signingthisagreement on the date statedoppositethatparty’ssignature. • SwedchickInc. AmericanStyle Inc. • _____________ _____________________ • Kim Fogelberg Susanna Wallström September 4th, 2014 September 4th, 2014 John McCain Al Gore John McCain Al Gore _________________ ___________________ John McCain, Al Gore, CEO Kilimanja Inc. CEO Nature Products Inc.

  17. Summary…… • Remembertofill in the courseevaluation form! • Anythingthatcan be donebetter?

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