The things most frequently linked with product liability are negligence, strict liability, breach of warranty, and various consumer protection claims. A warranty is breached when the guarantee is broken or when goods are not as anticipated, at the time the sale takes place, whether or not the defect is obvious. The seller is responsible to make things right by giving a refund or replacement.
It is possible for a seller to disclaim warranties. This is usually done by a statement made by the seller that states that no other warranty is expressed or implied. The UCC covers the scope to which sellers may disclaim definite kinds of warranties such as the warranty of merchantability or fitness for a particular purpose, or even disclaim all warranties in the case of starting that the goods are sold as is. Seller can specifically disclaim warranties of merchantability and fitness for a particular function. Including the warranty of merchantability seems sensible, as section 2-316 of the UCC states that "to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability." In this case the seller could have made such a statement in order to disclaim some of the warranties in regards to their product. Not all states allow seller to disclaim warranties, especially implied warranties. Even if disclaiming warranties are allowed, these disclaimers are not very popular with judges. Judges often determine that it would be unfair to enforce a disclaimer of implied warranties against the buyer.
In this case if they seller had made the statement that the Gizmo was to be sold as is they might have been able to relieve...
Another way that the seller could have limited their liability would to not have made the statement that the product was totally harmless and that the ball would not hit the player. Instead they should have made statements more to the fact that the user assumes all risks with use of the product. There should have been a caution that there was the potential for the user to be hit and injured.
In this case there were several things that the seller could have stated that would have better protected their liability in the use of the Gizmo. Instead they chose to limit their defenses by clearly stating what would not happen. This allowed for the buyer to have a case of liability against the seller when the son was injured while using the product. The worst thing that a seller can do is to make strict statements about what will or will not happen. This only sets them up for failure. It is much better to make less strict statements as to what a product will or will not do in order to not set the seller up to backing exact, strict statements.
References
Sale of Goods. (2010). Retrieved November 9, 2010, from Trans Legal Web site:
http://www.translegal.com/lets/sale-of-goods
Uniform Commercial Code. (2005). Retrieved November 9, 2010, from Cornell University Law
School Web site: http://www.law.cornell.edu/ucc/ucc.table.html
Warranties in Sales of Goods.(n.d.). Retrieved November 9, 2010, from Lexis Nexis Web site:
http://www.lexisnexis.com/lawschool/study/outlines/html/contracts/contracts14.htm
