On Thu, 8 Apr 2010 08:48:20 -0700 (PDT), ransley
wrote:

On Apr 8, 8:20*am, "Sanity" wrote:
I have been a homeowner, mostly up North for the past 50 some odd years. My
family is in the construction business so I know a little about building and
maintenance.
I have used Ice Melt on my driveways and steps for many, many years without
a problem. I know not to use rock salt as that would deteriorate the
concrete.
I live in North Carolina now. For the past five years I've purchased Ice
Melt from Lowe's and have not had one problem. This year they had a product
called "Ice Melt and Traction". *I asked the associate what the difference
was from what they used to carry. He told me it's the same with sand added
to give better traction. I read the label very carefully. It said "Do not
use on concrete that is less than 1 year old or not cured. Concrete should
be sealed". *Well, my concrete is 5 years old, cured and not only is it
sealed, I sealed it with product recommended by Lowe's.
As you can guess, the concrete flaked. *I went to the manager at Lowe's and
he instituted a claim. *The manufacturer denies any responsibility. *Lowe's
sent them a 'demand' letter stating that according to their agreement the
manufacturer must assume liability. I didn't hear for awhile so I called
Lowe's back. In a nasty tone I was told by their office that Lowe's does not
warranty any products they sell and is not responsible. All they'll do is
refund the money I paid for the bag of ice melt. I asked if this was their
policy on everything they sell and they said 'yes'. I will be taking them
and the manufacturer to court. Whether I win or not is not important at this
point. I just want everyone to know that when Lowe's tells you to email
, they really don't.

Was It "Lowes" Ice melter brand, or another company, if it isnt Lowes
you wont win you need to go after the other copmpany.

Not so.

On Thu, 8 Apr 2010 13:32:05 -0400, "Sanity" wrote:



"SMS" wrote in message
...


. A
judge is likely to rule against you if you sue Lowe's because they will
say that you should know not to believe anything an employee of the store
says about any product.

That's one of the most foolish statements I've heard. A sales associate
represents the store. If he lies or misrepresents the store is responsible
for it. Just think. Go in and buy a shovel and the associate tells you that
that shovel will shovel your walk without you even holding. it. They'd sure
sell a lot of shovels but the next morning there would be a lot of screaming
customers out there. A representative of any company is exactly that, a
representative and/or agent.

Bad example. There is a point at which the customer is not supposed
to believe everything he's told. Read about "puffing".** Or maybe he
can believe it but he can't base a claim on it. Pretty sure it would
cover a statment that you don't have to hold the shovel.

**This might relate to used car ads that claim the car is a cream
puff, whatever that means. It might only apply to second hand, but I
think your example, don't have to hold it, would be included even for
something new.

But you're right about your real life case.

A lot of people think they can't subpoena people to small claims
court. I think in most or all states you can. If in your complaint
you quote the guy and the store doesn't bring him they probably won't
blame you for his not being there, but how much they will believe you
about what he said without his being there to x-examine, I don't know.
The wrapper on the stuff is more imporant and bring printed evidence
like a paid bill that says "driveway sealed" to prove that. If you
did it yourself, maybe you have at least a log entry in your company's
project schedule.

What you say IS evidence, but it helps a lot to have printed evidence.
If you seem to lie or fudge and he is convinced you have, the judge is
entitled to consider eveytthing you say to be false. Of course the
same peroblem for the store.

On Thu, 8 Apr 2010 11:15:24 -0700 (PDT), wrote:

It could be the same melting ingredient as stuff he
saw sold at times in the past and different from what you happened to
buy. Proving any of that is very problematic.

It would seem to me that you are on much firmer ground going after the
manufacturer of the product.

The question here is, Is the store responsible for the man's mistakes
in labeling, like the man is. If I ever knew, I can't remember this
particular question.

A good quesiton for misc.legal.moderated I think.

On Thu, 8 Apr 2010 09:40:39 -0700 (PDT), DerbyDad03
wrote:

On Apr 8, 12:14*pm, "Sanity" wrote:
"willshak" wrote in message

...





Sanity wrote the following:
I have been a homeowner, mostly up North for the past 50 some odd years.
My family is in the construction business so I know a little about
building and maintenance.
I have used Ice Melt on my driveways and steps for many, many years
without a problem. I know not to use rock salt as that would deteriorate
the concrete.
I live in North Carolina now. For the past five years I've purchased Ice
Melt from Lowe's and have not had one problem. This year they had a
product called "Ice Melt and Traction". *I asked the associate what the
difference was from what they used to carry. He told me it's the same
with sand added to give better traction. I read the label very carefully.
It said "Do not use on concrete that is less than 1 year old or not
cured. Concrete should be sealed". *Well, my concrete is 5 years old,
cured and not only is it sealed, I sealed it with product recommended by
Lowe's.
As you can guess, the concrete flaked. *I went to the manager at Lowe's
and he instituted a claim. *The manufacturer denies any responsibility.
Lowe's sent them a 'demand' letter stating that according to their
agreement the manufacturer must assume liability. I didn't hear for
awhile so I called Lowe's back. In a nasty tone I was told by their
office that Lowe's does not warranty any products they sell and is not
responsible. All they'll do is refund the money I paid for the bag of ice
melt. I asked if this was their policy on everything they sell and they
said 'yes'. I will be taking them and the manufacturer to court. Whether
I win or not is not important at this point. I just want everyone to know
that when Lowe's tells you to email , they really don't.

Was the second person you talked to, the same manager?
If not, the second person probably doesn't know the company policy on
claims.
Contact the manager again and ask what is going on.
You can't condemn a whole company for one person's remarks.

--

Bill
In Hamptonburgh, NY
In the original Orange County. Est. 1683
To email, remove the double zeroes after @

Spoke to two different managers in two different stores. *Spoke to
Lowe's
insurance company, SRS and they initially told me the manufacturer
was
responsible and that Lowe's had a signed contract stating that.


Isn't that eaxctly what the warranty terms I found at the Lowes site
state?

If the insurance company told you the same thing,

The insurance companyl, the managers and the webpage all work for
Lowes. Don't take legal advice from the other side.

why do you think you
have a case against Lowes?

http://www.lowes.com/cd_Terms+and+Co...d%20Warranties

Like many webpages, the Lowes webpage is oriented to web transactions.
For example "Lowe's has made a conscientious effort to display and
describe its products and services on the site accurately... " On some
webpages it's practically impossible to find out about in-store
policies and here, I don't think one can assume that limitations
imposed on webshoppers also apply to in person shoppers.

Under dislaimer:. LOWE'S AND ITS SUBSIDIARIES MAKE NO REPRESENTATIONS
OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF
THE SITE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED
ON THIS SITE. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW,

to the full extent permissable by applicable law.

LOWE'S AND ITS SUBSIDIARIES DISCLAIM ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,

I don't think they can disclaim that one, because the law covers it
afaicr. See the Uniform Commercial Code, which has been adopted by
all 50 states with very minor variation in a few states.

I don't know why they say in one place "to the full extent permissable
by applicable law" and not in this place, but if there's a law
imposing liablity, nothing they say will make it go away.

If the product were labeled "as is", I"m not sure if that would help
or not, becuase it's the labelling as to how it can be used that is a
problem, and not afawk, the condition of the product in the bag, and
what he was told posssibly (someone is right that "like I bought
before" is a problem.), but it's not labeled as is so it doesnt'
matter.

NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY
RIGHTS, AND FREEDOM FROM ERRORS, VIRUSES, BUGS, OR OTHER HARMFUL
COMPONENTS. LOWE'S AND ITS SUBSIDIARIES WILL NOT BE LIABLE FOR ANY
DAMAGES OR ANY KIND ARISING FROM THE USE OF THIS SITE, INCLUDING, BUT
NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE,
CONSEQUENTIAL DAMAGES OR DAMAGES RESULTING FROM LOSS OF USE, DATA, OR
PROFITS, OR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THE USE OF THE SITE, ANY DELAYS ON THE SITE, OR THE
INABILITY TO USE THE SITE, ANY PORTION THEREOF, OR ANY HYPERLINKED
WEBSITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY
OR OTHERWISE, EVEN IF LOWE'S OR ANY OF ITS SUBSIDIARIES HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

These last 12 lines are about the site, not about the store or the
products.

On Thu, 8 Apr 2010 13:24:19 -0400, "Sanity" wrote:



If the insurance company told you the same thing, why do you think you
have a case against Lowes?

Did you bother to read the paragraph I posted? It's from the contract
manufacturers sign with Lowe's. They must offer a warranty or guaranty and
Lowe's will enforce the contract.

I haven't seen that paragraph. Are you still reading? Can you point
me to it or post it again?

On Thu, 08 Apr 2010 18:32:24 -0400, Kurt Ullman
wrote:

In article ,
"JimT" wrote:


With all due respect, that is a different scenario. The first suspect would
be the restaurant and you'd have a hard time proving it was the mfg. In the
OP there is no doubt what caused the problem; in the OP's mind at least.

And in real life, they most likely would go after the restaurant AND
the maker.

Absolutely, including deepest pockets. I don't know if small claims
court permits that or in which states.

On Thu, 08 Apr 2010 20:36:44 -0400, wrote:



No, in real life, they go for the "deepest pockets". That being the client
with the most money.

Steve


No, in real life your lawyer will want to name as many potential
defendants as possible. It makes it less likely that the whole case
will be summarily thrown out, and gives more options for collecting
damages. S.O.P.

And less likely A willl successfully blame B and in the second trial B
will successfully blame A.

On Thu, 8 Apr 2010 21:37:45 -0400, "Sanity" wrote:


See....That is true BUT. Your case against Lowes is sour grapes because
you're ****ed. Listen....you don't have a case against Lowes, and maybe
not even the mfg. You're angry. That's not a good reason to go to court.

It's fantastic that you can tell I'm ****ed and angry. If you were willing
to make a wager I'll bet Lowe's comes through for me. Either they'll make
the manufacturer pay or they'll pay and go after the vendor.
People deal with a big store because they want to avoid problems. They
expect that if they have a problem with a product, the store will make good
and the store will argue with the vendor. Why would Lowe's have a section in
their purchase agreement telling the vendor that they must guaranty their
product and that if they don't, Lowe's legal department will enforce the
contract?

I woudn't count on that. I used to got Marketfest Pro weekend
computer shows and at one I bought the parts neede to make a computer.

The floppy drives didnt' work and the vendor at the show wouldn't make
good. I called Market Pro and they said, Well they only have to live
up to to their advertising. I said they didnt'. Reluctantly they
called the vendor and I'm sure he said he didnt' do anything wrong,
and they called me back and they were done with me.

Now Lowes *ought* to be a lot more responsble than that. You're
right, stores grow by good customer service, and while The customer is
always right is not practical in some businesses, or anywhere**, your
case is somewhere not at the extremes.


**Some people seem to think it is the law!

On Thu, 8 Apr 2010 15:18:02 -0700 (PDT), DerbyDad03
wrote:

On Apr 8, 5:49*pm, "Sanity" wrote:
"Oren" wrote in message

...

On Thu, 8 Apr 2010 13:20:12 -0700 (PDT), DerbyDad03
wrote:

You're right, I stand corrected. As someone else pointed out, this is
America and you can sue anybody you want. Actually prevailing in the
matter, well, that's a whole different story.

Reminds me a fellow, once, that had a dispute with his water company.
The company turned off his water! *He was going to "bring them to
their knees", *and somehow made them humble :-/

Maybe he could have put soil in his toilets and grew vegetables?!

Guess who won...

Apples and pears.

Why does Lowe's have the manufacturer sign an agreement to guaranty their
products. *Lowe's knows that they are the first in line to get sued and want
to be protected. So if they are sued, they in turn will sue the
manufacturer.
Let me ask you a question. You go into an Italian restaurant and order
spaghetti and sauce. * The cook opens a can of commercial sauce and puts it
on the spaghetti. *You get food poisoning because the sauce is bad. Who do
you sue? *The restaurant or the manufacturer of the sauce. * The answer is
you sue the restaurant and he in turn sues the maker of the sauce.

Spaghetti and Manicotti

Lowes didn't "cook" the ice melting product. They didn't open the
package or change it in anyway. They are in no way responsible for
what happened to your concrete.

Look up "Warranty of merchantability"

Okay, I looked it up. Wikipedia isn't the best source and I haven't
read it yet, but i"m posting it regardless

The warranty of merchantability is implied, unless expressly
disclaimed by name,

== This implies it can be disclaimed, but that mght be a generic
statement. Yes it is. It covers all countries without noting
exceptions. It's the statutes of NC that matter, probably in its
adoption of the UCC.

or the sale is identified with the phrase "as is" or "with all
faults." To be "merchantable", the goods must reasonably conform to an
ordinary buyer's expectations, i.e., they are what they say they are.
For example, a fruit that looks and smells good but has hidden defects
would violate the implied warranty of merchantability if its quality
does not meet the standards for such fruit "as passes ordinarily in
the trade". In Massachusetts consumer protection law, it is illegal
to disclaim this warranty on household goods sold to consumers etc.

Unrelated here but it was the next paragraph, so I'll quote it:
The warranty of fitness for a particular purpose is implied when a
buyer relies upon the seller to select the goods to fit a specific
request. For example, this warranty is violated when a buyer asks a
mechanic to provide snow tires and receives tires that are unsafe to
use in snow. This implied warranty can also be expressly disclaimed by
name, thereby shifting the risk of unfitness back to the buyer.

Aha, further down;
Fitness:
United States
In the United States, the obligation is in Article 2, Section 315 of
the Uniform Commercial Code. The warranty of fitness differs from a
warranty of merchantability in that it applies to all sellers, not
only professional merchants. In the United States, this warranty is
sometimes referred to simply as a warranty of fitness.

Merchantability:
United States
In the United States, the obligation is in Article 2 of the Uniform
Commercial Code (UCC). This warranty will apply to a merchant (that
is, a person who makes an occupation of selling things) who regularly
deals in the type of merchandise sold.

Under US law, goods are 'merchantable' if they meet the following
conditions:
1. The goods must conform to the standards of the trade as
applicable to the contract for sale.
2. They must [be] fit for the purposes such goods are ordinarily
used, even if the buyer ordered them for use otherwise.
3. They must be uniform as to quality and quantity, within
tolerances of the contract for sale.
4. They must be packed and labeled per the contract for sale.
5. They must meet the specifications on the package labels, even if
not so specified by the contract for sale.

If the merchandise is sold with an express "guarantee", the terms of
the implied warranty of merchantability will fill the gaps left by
that guarantee. If the terms of the express guarantee are not
specified, they will be considered to be the terms of the implied
warranty of merchantability. The UCC allows sellers to disclaim the
implied warranty of merchantability, provided the disclaimer is made
conspicuously and the disclaimer explicitly uses the term
"merchantability" in the disclaimer.[1] Some states, however, have
implemented the UCC such that this can not be disclaimed.

So we still don't know about North Carolina, but I'm pretty sure that
the disclaimer on the webpage is not applicable to purchases made in
person, unless they can show he had read the warranty on the webpage.
If he didn't read it, they can't show it.

OKay:
http://webcache.googleusercontent.com/search?q=cache:edTrgAoSQVEJ:www.lawserver.com/law/state/north-carolina/nc-laws/north_carolina_laws_25-2-314+%22North+Carolina%22+UCC+merchantability&cd=6& hl=en&ct=clnk&gl=us&lr=lang_en|lang_iw|lang_es&cli ent=firefox-a
Home For Small Business {More Business Law} Uniform
Commercial Code Sales (UCC Article 2) North Carolina Laws
25-2-314 - Implied warranty: Merchantability; usage of trade

Sales (UCC Article 2)

North Carolina Laws 25-2-314 - Implied warranty: Merchantability;
usage of trade
North Carolina Laws Chapter 25 Article 2 § 25-2-314 - Implied
warranty: Merchantability; usage of trade

Current as of: 2008
Check for updates

§ 25-2-314. Implied warranty: Merchantability; usage of trade.

(1) Unless excluded or modified (G.S. 25-2-316), a warranty that
the goods shall be merchantable is implied in a contract for their
sale if the seller is a merchant with respect to goods of that kind.
Under this section the serving for value of food or drink to be
consumed either on the premises or elsewhere is a sale.

(2) Goods to be merchantable must be at least such as

(a) pass without objection in the trade under the contract
description; and

(b) in the case of fungible goods, are of fair average quality
within the description; and

(c) are fit for the ordinary purposes for which such goods are
used; and

== The line above is important.

(d) run, within the variations permitted by the agreement, of
even kind, quality and quantity within each unit and among all units
involved; and

(e) are adequately contained, packaged, and labeled as the
agreement may require; and

(f) conform to the promises or affirmations of fact made on the
container or label if any.

== Also imporant!!!!

(3) Unless excluded or modified (G.S. 25-2-316) other implied
warranties may arise from course of dealing or usage of trade.

(1965, c. 700, s. 1.)
Prev | Next See also:
North Carolina Laws Chapter 25 Article 2 - Sales

Next section, harder to understand and apply afaic, and this is where
the answer lies, specifically was there a conspicuous notice that
there was no warranty of merchantibility. Is a notice, if there is
one, on the receipt good enough if he doesn't get the receipt until
after he pays the money and owns the stuff? I'm sure I have a
receipt somewehere for something. Is there extra writing, on the back
of the paper, or is there only what pertains to the current
transiaction, sku, description, price, total, amount tendered, change.

If it does't say it there, I think Lowes is on the hook because I've
never seen it anywhere else and the webpage doesn't count IMO.

Home For Small Business {More Business Law} Uniform
Commercial Code Sales (UCC Article 2) North Carolina Laws
25-2-316 - Exclusion or modification of warranties

Sales (UCC Article 2)

North Carolina Laws 25-2-316 - Exclusion or modification of warranties
North Carolina Laws Chapter 25 Article 2 § 25-2-316 - Exclusion
or modification of warranties

Current as of: 2008
Check for updates

§ 25-2-316. Exclusion or modification of warranties.

(1) Words or conduct relevant to the creation of an express
warranty and words or conduct tending to negate or limit warranty
shall be construed wherever reasonable as consistent with each other;
but subject to the provisions of this article on parol or extrinsic
evidence (G.S. 25-2-202) negation or limitation is inoperative to the
extent that such construction is unreasonable.

(2) Subject to subsection (3), to exclude or modify the implied
warranty of merchantability or any part of it the language must
mention merchantability and in case of a writing must be conspicuous,

== Well, it seems it can be excluded, but was it conspicuous? No
place I've seen in Lowes is there anything like this except I haven't
read the receipt. The receipt is tendered after the thing is bought.
Not sure how much that matters. Another good question for the legal
newsgroup.

and to exclude or modify any implied warranty of fitness the exclusion
must be by a writing and conspicuous. Language to exclude all implied
warranties of fitness is sufficient if it states, for example, that
"There are no warranties which extend beyond the description on the
face hereof."

=== I don't think paragraph 3 below applies to a retail consumer, who
buys only one bag, or 4, but read them.


(3) Notwithstanding subsection (2)

(a) unless the circumstances indicate otherwise, all implied
warranties are excluded by expressions like "as is," "with all faults"
or other language which in common understanding calls the buyer's
attention to the exclusion of warranties and makes plain that there is
no implied warranty; and

(b) when the buyer before entering into the contract has
examined the goods or the sample or model as fully as he desired or
has refused to examine the goods there is no implied warranty with
regard to defects which an examination ought in the circumstances to
have revealed to him; and

(c) an implied warranty can also be excluded or modified by
course of dealing or course of performance or usage of trade.

(4) Remedies for breach of warranty can be limited in accordance
with the provisions of this article on liquidation or limitation of
damages and on contractual modification of remedy (G.S. 25-2-718 and
25-2-719).

(1965, c. 700, s. 1.)
Prev | Next See also:
North Carolina Laws Chapter 25 Article 2 - Sales



If you sue the restaurant, you might have a chance of winning because
they played a major part in getting you sick, and maybe the restaurant
has chance of winning their suit with the manufacturer, but that's not
the same situation as simply buying an unaltered product from Lowes.

See above.

Look, we can argue the merits all day. Do us a favor: Sue 'em and let
us know how it works out.

Good idea.

It's amazing how much I like law, for about 10 minutes a week. No
wonder I didn't finish law school, where they expect you to do it at
least 40 hours a week.

On Fri, 9 Apr 2010 10:24:08 -0400, "Sanity" wrote:


I repeat for the umpteenth time:
The manufacturer states it's safe use if:

a. the concrete is at least one year old.
b. the concrete is sealed.

The concrete is 5 years old. I've used ice melt on this driveway every year
without mishap.

It would help to konw what is different about this sfuff from the
stuff you used before.

And btw, was there sand in it? Did the label say there was sand in
it?

?I personally sealed the driveway twice. I was here when the
driveway was poured. Specs called for a 2500psi mix. The mix that was
delivered bright and early in the morning (so as not to sit in the truck for
hours) was over 3000 psi.

On Fri, 9 Apr 2010 12:29:50 -0400, "Sanity" wrote:



As a matter of fact, I do. And if and when I go into court, which I doubt I
have to do, I can show 40 years of construction supervision to prove I know
what I'm talking about.

Of course conceivably that could take you out of the status of a
retail consumer to someone who know the usage of trade, which is
referred to in some way in exception 3c "(c) an implied warranty
can also be excluded or modified by course of dealing or course of
performance or usage of trade."

I'm not sure 3c applies at all however to this case.

As I said before, my family is in the construction
business (skyscrapers, malls, hospitals, etc.) for many, many years. I'm
retired quite awhile but I can pick up the phone, have one of our engineers
fly down, take a core sample and have it analyzed to prove my point.

Have someone check the ingredients of the Ice Melt too.

On Fri, 09 Apr 2010 01:16:03 -0400, Bill
wrote:

After a few days he called and said he could
not figure out who to talk to but that the store would honor the
warranty and I should come in and pick out a new fan. Needless to say I
am now a big Lowes fan.

How can you be a fan? I thought the fan was broken.

Oh, and the new fan also says "limited lifetime
warranty" on the box. Hopefully I won't have to use it.

Bill

On Sat, 10 Apr 2010 10:58:50 -0400, "Sanity"
wrote:



"JimT" wrote in message
...



Take, for example, the cement the OP purchased. Assuming he did not tell
the contractor which cement to use, the contractor would be responsible
for the cement. He relied entirely on the contractor's expertise (I
obviously don't know if this is true. This is just for example). My
question to you is: Why doesn't he pursue the contractor? Or for that
matter, the cement mfg? Maybe the store where the cement was purchased?
****, let's put them all on there. LOL

Again, you're an idiot that doesn't read anything but jumps to conclusions.
If you read my postings, which obviously you didn't, when the cement arrived
it came with all the certifications. It met or exceeded all standards
required. You also didn't read that I and my family have been in the
construction business for many years and know what we're talking about. You
also didn't read that I was willing to fly in one of our engineers from NY
to take a core sample, have it analyzed to prove that it met the criteria.
Yes, it would have cost me more to prove that I'm right but I would have
still will win.
Now unless you've read all the postings, stop making assumptions and get on
with something you know a lot about, like nothing.

You really can't expect someone to read all the posts in a thread this
long, or even shorter. IF someone dl's the last 100 posts in the
newsgroup, or the last 300, he may have no idea how many posts there
already have been to a given thread. And if he waits to post until he
has read every post available to him, he will have forgotten what he
wnted to say, and it won't be interesting to him anymore. All the
people who posted early in the thread did so without knowing what
added info would come later, including info from you.

On Fri, 9 Apr 2010 19:06:23 -0400, "Sanity" wrote:



"JimT" wrote in message
...

"Frank from Deeeetroit" wrote in message
...
On Apr 9, 3:12 pm, (Jonathan Kamens)
wrote:
"JimT" writes:
Anyone want to tackle "expressly disclamed by name"? Jonathan? :-)

Nothing we have been told in this thread suggests that Lowe's
disclaimed the warranty of fitness for purpose when selling
the product to the OP.

On the contrary, the OP specifically asked a Lowe's associate
if the product would perform similarly to similar products
sold by Lowe's in prior years, and the associate told him that
it would. That statement by the associate to the OP prior to
purpose established a warranty of fitness for purpose.

You are assuming the associate, in fact said that, and if the OP can
prove said associate said that.



snip

I don't think that even matters. They both had basically the same info.

Apparently, the NCGA protects businesses from frivolous law suits. As it
should be. If Lowes pays off, it will be just to shut him up. Anything
under 30k isn't worth going to court over. It's crap like this that drives
prices up.

Thanks


And how much would it cost to shut you up? You're making a Federal case over
this. I don't know who you're trying to impress, yourself or the other
idiots.

What's come over you? You've gotten quite testy since the start of
the thread.

On Sat, 10 Apr 2010 07:18:11 -0700 (PDT), wrote:

On Apr 9, 12:50*pm, "JimT" wrote:
"Sanity" wrote in message

...







"JimT" wrote in message
tnet...

"Sanity" wrote in message
...

"DerbyDad03" wrote in message
...
On Apr 8, 5:49 pm, "Sanity" wrote:
"Oren" wrote in message

om...

On Thu, 8 Apr 2010 13:20:12 -0700 (PDT), DerbyDad03
wrote:

You're right, I stand corrected. As someone else pointed out, this
is
America and you can sue anybody you want. Actually prevailing in the
matter, well, that's a whole different story.

Reminds me a fellow, once, that had a dispute with his water
company.
The company turned off his water! *He was going to "bring them to
their knees", *and somehow made them humble :-/

Maybe he could have put soil in his toilets and grew vegetables?!

Guess who won...

Apples and pears.

Why does Lowe's have the manufacturer sign an agreement to guaranty
their
products. *Lowe's knows that they are the first in line to get sued
and want
to be protected. So if they are sued, they in turn will sue the
manufacturer.
Let me ask you a question. You go into an Italian restaurant and order
spaghetti and sauce. * The cook opens a can of commercial sauce and
puts it
on the spaghetti. *You get food poisoning because the sauce is bad.
Who do
you sue? *The restaurant or the manufacturer of the sauce. * The
answer is
you sue the restaurant and he in turn sues the maker of the sauce.

Spaghetti and Manicotti

Lowes didn't "cook" the ice melting product. They didn't open the
package or change it in anyway. They are in no way responsible for
what happened to your concrete.

If you sue the restaurant, you might have a chance of winning because
they played a major part in getting you sick, and maybe the restaurant
has chance of winning their suit with the manufacturer, but that's not
the same situation as simply buying an unaltered product from Lowes.

Look, we can argue the merits all day. Do us a favor: Sue 'em and let
us know how it works out.

Just a little note. I just received an email from their claims
department. They asked for two days and then they'll make me an offer.
So evidently I was right and some of you sideline lawyers are wrong.
Lowe's protects itself by making all it's vendors offer a guaranty or
warranty in their purchase agreement. If the vendor refuses to honor
that warranty Lowe's will in most cases and subrogate against the
vendor. I'll post in a few days with the exact outcome.

Cool! *Please let us know. :-)

Post a copy of the actual letter so we can read and make our own
determination. I'd like to see that "purchase agreement" too.

Thanks

For the third time here is the paragraph. *Lowe's will not give out an
actual copy of their merchant agreement.

""I direct your attention to the Master Standard Buying Agreement,
executed
between your company and Lowe's. Please refer to Article V, WARRANTIES AND
GUARANTEES, sec (5) which contains the following indemnification
agreement.
Pursuant to this agreement your company is responsible for this matter.
Your
company is responsible to Lowe's for the defense and indemnification of
any
and all claims, including expenses and legal fees resulting from this
matter. Lowe's will exercise all available legal remedies to enforce this
agreement Failure on your part to respond to this may result in additional
expenses, as well as legal action being taken against your company.
Lowe's therefore demands immediate acceptance of this claim in writing. If
you have any applicable liability insurance coverage for this matter, you
should immediately place your insurance carrier on notice."
"

Read it: I don't see how this makes Lowes liable. In fact, I think it's
Lowe's way of insuring they won't be liable. In-other-words. If Lowe's does
get sued Lowe's could use this as a contract between them and the supplier.
So Lowe's can in-turn sue the supplier for breech of contract.

It wouldn't strengthen your case against Lowes. It's for Lowes. But of
course.....it depends on "what the deffinition of "is" is". :-) ****in'
lawyers.- Hide quoted text -

- Show quoted text -

I've read it and it's a letter, that REFERS to the actual contract.
We don't have the actual contract, the context, what comes before it,
or after it. But from what is stated there, I agree with JimT.
Nothing there says that Lowes is liable. Companies routinely put all
kinds of disclaimers in their contracts to limit POTENTIAL liability
and direct it elsewhere, just in case someone decides to sue. All
this shows is that Lowes expects the company to honor their warranty.
It doesn't say that if they don't, Lowes will.

I agree with both of you.

I've read that big box stores, and other stores too, are very good at
making their suppliers take back defective products and even good
products in boxes that have been opened, so they can reimburs the
customer, which most stores are very good at. I don't know how that
applies to forcing the supplier to pay for repairs to the driveway
though.

To a large extent, this depends on how much the supplier wants to
continue the contract. The story about the fan that could have been
made by three different suppliers, all using the same name on stuff
they made for Lowes, shows how easily lowes can change suppliers, even
on stuff that has a house brand. EVen more easily can they start
buying something that melts ice from someone other than Ice Melt.

Business has always worked this way to some degree or another. The
bigger company can push the smaller ones around often, but if the
smaller company has something no one else has, they can find another
chain to market it. Local chains don't push the computer makers
around afaik.

On Thu, 8 Apr 2010 17:15:08 -0700, "Steve B"
wrote:


And an inspection by a health department doesn't mean you won't get food
poisoning from the guy who just touched the doorknob before you. Do you
ever use the public john at a restaurant?

I do, as much as possible. I'm hoping to build up antibodies to tide
me through my old age. I have little idea if it works that way or
not.

Steve

On Fri, 9 Apr 2010 09:53:58 -0500, "JimT" wrote:


wrote in message
...
On Apr 8, 5:49 pm, "Sanity" wrote:
"Oren" wrote in message

...

On Thu, 8 Apr 2010 13:20:12 -0700 (PDT), DerbyDad03
wrote:

You're right, I stand corrected. As someone else pointed out, this is
America and you can sue anybody you want. Actually prevailing in the
matter, well, that's a whole different story.

Reminds me a fellow, once, that had a dispute with his water company.
The company turned off his water! He was going to "bring them to
their knees", and somehow made them humble :-/

Maybe he could have put soil in his toilets and grew vegetables?!

Guess who won...

Apples and pears.

Why does Lowe's have the manufacturer sign an agreement to guaranty their
products. Lowe's knows that they are the first in line to get sued and
want
to be protected. So if they are sued, they in turn will sue the
manufacturer.
Let me ask you a question. You go into an Italian restaurant and order
spaghetti and sauce. The cook opens a can of commercial sauce and puts it
on the spaghetti. You get food poisoning because the sauce is bad. Who do
you sue? The restaurant or the manufacturer of the sauce. The answer is
you sue the restaurant and he in turn sues the maker of the sauce.


Actually there was a similar case on Peoples Court last year.
Someone ordered a dish that had pitted olives in it. One of the
olives contained a pit and the customer broke a tooth on it. They
sued the restaurant and....they LOST. The judge said to prevail the
plaintiff would have to show that the restaurant was negligent and did
something wrong, which they did not. The judge said they might have
a claim against the olive maker, but even then, everyone should know
that it's not possible to guarantee 100% perfect removal of all pits.

========

That's an interesting PL case. I've heard the same thing about "fish bones".
Unfortunately, the plaintiff can't sue God. I'll bet they could if they
could serve a subpoena. (St. Peter's Square? Sistine Chapel?)

Subpoenas there may be coming.

Our court system is out of control but thankfully there are some glimpses of
sanity.

We've had a lot of Sanity in this thread already.

On Sat, 10 Apr 2010 18:33:32 -0500, "JimT" wrote:




Aside from grumpy old man needing a nap, I found some pretty interesting
stuff. I think the NCGA has some pretty comprehended statutes on the
subject. Also, I never knew you have to remove the slush before it
refreezes.

Me neither. I'm never going to do that. I guess I'll never use ice
melter.

Ehhhh. I live in Central TX. It's hardly a problem here.

On Fri, 9 Apr 2010 09:37:49 -0400, "Sanity" wrote:



If your case does end up in court, Lowe's will have a corporate person
argue their side of the case. No lawyers are permitted in Small
Claims Court in Michigan, perhaps the same is true in your area, but
the person arguing Lowe's case could very well be a corporate
attorney. Small Claims are filed against retail stores all the time,
please do not feel that you case is the first one filed against
Lowe's. Your case is frivolous.

And I've lived in the North for 60 years before moving here so:
1. I've used ice melt before without problem
2. My whole family is in the building business so we know about concrete.
(the vendors packaging said the concrete has to be one year old and sealed,
which it was).
3. The concrete used in my driveway met all specs. It cured for 5 years.
It's been sealed properly twice.

He didn't even re-ask any questions, but you're reanswering them
anyhow. Don't complain later.

so I think I know a little about concrete. And the case is not frivolous.
And lawyers for a Corporation are permitted in most small claims court.

Yes I think so. Corporations don't have mouths or hands or legs.
They can only speak through their attorney. Some states, maybe all by
now, have amended the law to allow small corporations, like family
businesses and maybe bigger, to appear without a lawyer. But this is
an exception to the normal rule.

The tv courts are not courts but arbitration forums and they could
have just about any rules they want on stuff like this. I don't think
I've ever seen a lawyer who wasn't also the plaintiff or respondent,
but I think all of the corporations I've seen have been small ones.
Maybe the big ones are too smart to appear on the show. I think it
some of the litigants were smarter, they woudn't humiliate themselves
on tv either, which might be why so many of them are poor, because for
them the 300 dollars each it pays, or 500 or 200 or something like
that is more of an incentive than it would be for someone who's not
poor. But others are middle class and just have no idea how bad they
might look, even if they win.

On Fri, 9 Apr 2010 19:12:17 +0000 (UTC),
(Jonathan Kamens) wrote:

"JimT" writes:
Anyone want to tackle "expressly disclamed by name"? Jonathan? :-)

Nothing we have been told in this thread suggests that Lowe's
disclaimed the warranty of fitness for purpose when selling
the product to the OP.

On the contrary, the OP specifically asked a Lowe's associate
if the product would perform similarly to similar products
sold by Lowe's in prior years, and the associate told him that
it would. That statement by the associate to the OP prior to
purpose established a warranty of fitness for purpose.

If you have some reason to believe, based on the information
we have been provided, that Lowe's disclaimed said warranty,
then please fully explain your reasoning.

They definitely do that on the web, but I woudl guess in person
purchasers aren't bound by what it says on the web.

Still, it would be a little strange that they do this on the web and
then make no effort to do it in the stores. Maybe that's because
that's the way stores have always been run, and they thought they
could be stricter on the web.

There is no one to consult with when buying on the web. even if
people think the store clerks are no better than no one, myabe lowes
thinks they make a difference. Although lots of people buy things
without talking to anyone.

I hate BLOWES!! Theyre crooks and they **** over their employees