Walsh v. Ford Motor Co.
| Decision Date | 11 March 1969 |
| Citation | 298 N.Y.S.2d 538,59 Misc.2d 241 |
| Parties | , 6 UCC Rep.Serv. 56 John J. WALSH, Plaintiff, v. FORD MOTOR COMPANY and Gerard T. McGoldrick and Paul B. McGoldrick doing business as McGoldrick Mercury Motors, Defendants. |
| Court | New York Supreme Court |
In an action to recover damages for personal injury brought against the manufacturer and seller of an automobile, the plaintiff moves for dismissal of the affirmative defense interposed by each defendant stating, in substance, that under the contract for the sale of the car, they expressly disclaimed and/or limited any warranty so that plaintiff may not recover all or any part of the damages claimed.
The plaintiff, according to the complaint, was injured on November 1, 1967, when a Mercury automobile, which he purchased new on the same date, went out of control due to defects in the throttle linkage and related parts. The complaint contains three causes of action based on negligence and breach of implied and express warranties.
Neither answer sets forth the specific warranties that are allegedly disclaimed or limited, but annexed to each such pleading is a copy of a printed warranty sheet which states at the bottom portion thereof: 'The warranties herein are expressly In Lieu of any other express or implied warranty, condition or guarantee on this vehicle or any part thereof, including any implied Warranty of Merchantability or Fitness * * *.' The express warranties extended to a purchaser limit liability to replacement or repair of defective or damaged parts.
If the pleaded defense is intended to exclude plaintiff from recovering damages for his personal injury, such limitation is prima facie unconscionable . Furthermore, in the absence of factual evidence indicating the limitation or exclusion is commercially reasonable and fair rather than oppressive and surprising to a purchaser of a new vehicle, it must be stricken as a matter of law (cf. ...
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...buyers from hidden disclaimers, any disclaimers in conflict with an express warranty are ineffective. See Walsh v. Ford Motor Co., 59 Misc.2d 241, 298 N.Y.S.2d 538 (Sup.Ct.1969). The jury, having read the words "20-year bond" in isolation from the disclaimer language under § 36-2-316(1), fo......
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...benefits inuring from the reciprocal covenants. Moreover, while recent cases concerning warranty disclaimers (Walsh v. Ford Motor Co., 59 Misc.2d 241, 298 N.Y.S.2d 538) and exorbitant financing charges (Star Credit Corp. v. Molina, 59 Misc.2d 290, 298 N.Y.S.2d 570; Jones v. Star Credit Corp......
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...to apply them neutrally to personal injury cases (see, Velez v. Craine & Clark Lbr. Corp., supra; see also, Walsh v. Ford Motor Co., 59 Misc.2d 241, 298 N.Y.S.2d 538; see also, 5 Harper, James and Gray, Torts § 28.25 [2d The warranty claim in this case was for tortious personal injury and r......
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