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You be the jury | by SnappingTurtle | 2007-02-16 08:15:20 |
| I'd doubt he would win agains BuySmart |
by basher20 |
2007-02-16 08:39:16 |
However, if filing a suit, a lawyer would probably name the grocery as a defendant, especially if it is headquartered in the state where Joan lives. This would allow the suit to be brought in state, rather than federal court. there are reasons for this that are too numerous to name, other than to say that there is normally much more of a houme field advantage in state courts.
The issue comes down to two factors: did the grocery not have a good faith expectation that the peanut butter was not contaminated and does the grocery have a duty to warn that they did not meet.
The first critera could be met only if there was a visible means of detecting the contamination as the jars were being handled in the normal course of business, or if the store continued to sell the affected jars after the recall notice had been issued.
The duty to warn issue is more complicated. It would depend if the information that the peanut butter may be contaminated was generally available or not. If the recall notice was communicated by the proverbial guys in dark suits who show up at the grocery and tell the manager to take the peanut butter off the shelves, the grocer would have a much greater duty to warn than if the recall notices were broadcast through national and local media.
A likely defense of the grocery is that although they could determine which customers with discount cards had purchased the peanut butter, they would have no way of accounting for jars sold to people who did not use the cards or determining if the jar Joan purchased was from a defective lot. Thus, they might inadvertently create the impression that if you were not contacted by the store, the peanut butter you purchased was OK. |
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