Dupont Vs Landscape

DuPont

Vs

Landscape Professionals

By

Kelli D. Brassfield

Bus. Law 365

20 November 2011

Landscaping is wonderful. You can take a yard from drab to fab. You can do the most elaborate landscapes (paver patios and water features) to the very basic (plain green turf). Landscape professionals meet with customers, get the ideas that they want, and then use their best judgment to use products that will satisfy their customers' needs.

Landscape professionals also need to take into consideration whether their customers are commercial or residential. As a landscaper myself, in our family business, we mainly have commercial turf maintenance. In our contracts we are to perform the best turf maintenance to our capabilities. To provide our customers with the best turf management it includes turf fertilizer, bill bug prevention, and maintenance of weeds.

The majority of our time is spent on the maintenance of weeds. This year our company, and many others, used a new product, Imprelis. Imprelis was put into the market by the company DuPont. DuPont has been a trusted company for many years.

Imprelis is a broadleaf weed control herbicide. This product is used in cool season and certain warm season turf. It can be used on all lawn types. Imprelis is designed to control major broadleaf weeds including but not limited to dandelion and clover. It was also designed to control annual and perennial broadleaf weeds (DuPont, Product Label). It was brought into the market in October 2010.

Imprelis has been used all over the country, from Delaware to Oregon. It certainly does its job; however, it also has side effects. The side effects that were unintended by DuPont include death or damage to numerous trees. Damage was first reported around Memorial Day 2011. The species of trees affected are the Norway

spruce, White Pine, Balsam Fir, and others. With the damage reported, the Environmental Protection Agency (EPA) announced that there would be an "expedited review" (Parker). Class action lawsuits have been filed in Michigan and Ohio due to the death of trees.

Among the many lawsuits against DuPont, Washtenaw Acquisition vs. DuPont and Town and Country Landscape Management LLC vs. DuPont are the most recognized. In Washtenaw Acquisition vs. DuPont the prosecution seeks jury trial and unspecified triple damages for properties that were harmed by the Imprelis chemical (Milford). In Town and Country Landscape Management LLC vs. DuPont the nature of the lawsuit is real property-property liability tort.

Product liability is a field that combines and enforces rules and principles of contracts, sales, negligence, strict liability, and statutory law. It covers the liability that manufacturers and sellers have to the people that purchase their goods. A breach of contract must be present for a company, DuPont, to be in a product liability lawsuit. It starts with a guarantee or promise such as warranty. A warranty is an obligation of the seller concerning title, quality, characteristics, or condition of goods sold (Mann, 416). In this case a creation of an expressed warranty is written descriptions of how the product is believed to perform. In the warranty it also states that the product may not perform as expected due to unexpected factors such as, weather conditions and soil factors.

Under the Uniform Commercial Code (Code), DuPont also created an implied warranty of merchantability; the merchant seller, through the warranty, implies that the

goods are fit for their ordinary purpose. To reduce liability, merchant sellers often instill disclaimers. A disclaimer is a negation of warranty. For a disclaimer to be effective, they need to be positive, explicit, unequivocal, and conspicuous.

In this case, DuPont has modified the warranty with an implied warranty of merchantability. This disclaimer must mention merchantability and must be conspicuous if in writing, which it is. The Code tests the disclaimer for being conspicuous. The terms must include 1) a heading in capitals equal or greater in size than the surrounding text, and 2) language in the body of a record or display in larger type of the same surrounding text.

In reference to the both cases mentioned against DuPont, they are product liability / strict liability tort. This portrays the breach of contract. A strict liability tort is when a merchant seller is liable for selling goods in a defective condition, unreasonably dangerous to the user or the user's property. Section 402A of the Restatement states that strict liability in tort exists if 1) the defendant was engaged in the business of selling a product such as the defective one, 2) the defendant sold the product in a defective condition; 3) the defective condition made the product unreasonably dangerous to the user or consumer or to his property; 4) the defect in the product existed when it left the defendant's hands; 5) the plaintiff sustained physical harm or property damage by using or consuming the product; and 6) the defective condition was the proximate cause of the injury or damage. DuPont violated section 402A part three and five. This breach is not governed by the Code; however, it is a tort and