This is the last installment of "implied warranty" citations for a while, I promise. Forgive me for spamming; this suddenly seemed important to me once Sean pointed out that "no end user acceptance of warranty disclaimer" could be a problem.
Wow. Depending on which version of UCC 2318 a given state has adopted (or what other anti-privity statute or case law may apply), all of this implied warranty business may extend to any "person whom the manufacturer or seller might reasonably have expected to use, consume, or be affected by the goods". That's a quote from the Virginia version, cited from Buettner v. R. W. Martin ( http://caselaw.lp.findlaw.com/data2/circs/4th/941356p.html ). Virginia's version is limited (per that case, anyway) to a "third party beneficiary" theory, in which the user's warranty only extends as far as the purchaser's does; but some states (California included) seem to have rejected the whole clause, and who knows how far one's "duty of due care" might extend. Incidentally, I've been misrepresenting the "tort"/"contract" distinction a bit today by not adequately distinguishing negligence as a separate theory. Strict liability in tort requires a demonstration that a product was in a "defective condition unreasonably dangerous" (Section 402A of the Restatement (Second) of Torts, cited from Walsh below), and that's relatively hard to prove. Breach of warranty itself is a contract theory; as such, it's unusual for damages to vastly exceed the value of the contract. Unless some idiot puts unaudited GPL code into a medical device, a nuclear plant, or an industrial robot (in which case it's probably their problem and not upstream's), neither of these theories would be likely to generate a non-negligible damages award against the author. The sort of negligence I am discussing is a cause of action in tort like any other civil wrong. But unlike most forms of tort, the "rule of privity" (dating back to the 1842 case Winterbottom v. Wright: http://www.lawrence.edu/fast/boardmaw/Wntbtm_Wr.html ) says (or used to say) that it can only be found within a contractual relationship. This includes the implied contract between buyer and seller (hello civil law countries, we're not so different in this respect). Massachusetts is probably not alone in requiring a demonstration of breach of (implied) warranty of merchantability before negligence can be proven -- and that makes the warranty disclaimer much more important than it would otherwise be, since negligence bears a much lower standard of proof than strict liability in tort. Modern law in (almost?) every state breaches privity to extend the availability of remedies for negligence to third parties. (Survey, tilted towards negligence in legal malpractice, at http://www.tomwbell.com/writings/Comment.html . Another survey, this time in the construction industry, at http://www.seyfarth.com/db30/cgi-bin/pubs/cl_wint01.pdf . Professor Walsh's survey of product liability law in general, including privity issues, is at http://www93.homepage.villanova.edu/michael.walsh/pls.html .) The devil is in the details: privity is more easily breached given personal injury than mere economic loss, but there are exceptions to the exceptions, and the farther you go the more it varies by jurisdiction. The primary literature is more painful to track down in this area than in copyright law, since we are talking about causes of action under state law that don't often lend grounds for an appeal to a Federal circuit court. For instance, Aas v. Superior Court of San Diego County (2000) [24 Cal. 4th 627] would be really interesting to read, especially since it catalyzed a legislative compromise for the California construction industry analogous to automobile lemon laws (according to http://www.constructiondefects.com/pr_newlegis.asp ). Here is a quote from Aas (cited from http://www.defectlaw.com/Top60Cases.htm ): "The distinction that the law has drawn between tort recovery for physical injuries and warranty recovery for economic loss is not arbitrary and does not rest on the 'luck' of one plaintiff in having an accident causing physical injury. The distinction rests, rather, on an understanding of the nature of the responsibility a manufacturer must undertake in distributing his products." Another quote from Aas seems to imply that negligence recovery in California is limited to actual damages to person or property. I'd also really like to track down the grant of partial summary judgment (in district court, presumably on diversity grounds) described at http://www.burnhambrown.com/publications/article.cfm?pubid=99 ; maybe I'll go down to the law library and shell out for the PACER search. Cheers, - Michael (IANAL, TINLA) P. S. Random case encountered when hunting for the Sears opinion: the entertainment value of Ninth Circuit opinions seems to extend also to the local district court. See http://www.the10b-5daily.com/archives/000293.html . Now I have to decide whether I want to clerk for Alex Kozinski or Vaughn Walker someday. Another random case (Bates v. Dow AgroSciences) makes me glad that the US Supreme Court is not yet totally co-opted by the forces that own Congress and the White House. I'll give you a break and link to a summary: http://library.findlaw.com/2005/May/3/172951.html . #306 in the list of reasons to appreciate a federal system -- and a reminder of how much good lawyers matter: if you were harmed by a pesticide in California a few years ago (before the Supremes straightened things out), you really needed to know which court to go to and what sort of claim to file. See http://www.toxictorts.com/art_fifra.html .
