[TowerTalk] Action against US Tower?

[Bill]

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 at earthlink.net>
To: <wc1m at msn.com>; "'JC Smith'" <jc-smith at comcast.net>; "'Rick Tavan N6XI'" 
<rtavan at gmail.com>; <towertalk at 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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