PRELIMINARY STATEMENT
The defendant, Western Generator Co. (“WCG”), manufactures and sells a wide range of generators for personal, business, and industrial application. The plaintiff, Richard Albert Imry (“plaintiff #1”), owns and operates an auto body repair shop out of a garage connected to the back of his house. He is joined as plaintiff by his two adult sons, Max Imry (“plaintiff #2”), and Mathias Imry (“plaintiff #3”), who live with Plaintiff #1 and work at the auto body repair shop. Plaintiff #1 purchased a Western Generator Company 17,500 Watt Electric Start Portable Generator from the defendant’s online store. Before accepting the terms and completing the order, the plaintiff noticed the blue hyperlink admonishing him to view WGC’s …show more content…
WGC is entitled to summary judgment since there is no genuine dispute of fact concerning the existence of a valid warranty
The court should grant summary judgment in favor of the defendant, WGC. Per Federal Rule of Civil Procedure 56(e) the non-moving party must show a dispute regarding a genuine issue of material fact to withstand a motion for summary judgment. See Anderson, 477 U.S. 242. A genuine issue of material fact exists where a reasonable jury could find for the non-moving party based on the evidence. Id. at 248-49. If there is no genuine issue of material fact, the moving party is entitled to judgment solely as a matter of law, then the judge must grant summary judgment. Id. at 250.
Plaintiff #1 admits to making the online purchase of the generator. He admits to seeing the hyperlink, ignoring it, and clicking “ACCEPT AND PAY.” Plaintiff #1 does contend that he did not agree to the terms of the disclaimer. (Deposition of Richard Imry, p. 5, line 3). However, this is not a question of fact, but rather a question of law.
B. The hyperlink’s admonition to view the warranty disclaimer and proximity to the ACCEPT and ORDER button on WGC’s website put the plaintiff on inquiry notice of the disclaimer of warranties and therefore the plaintiff was bound by the terms in the contract of …show more content…
Unlike the website in Nguyen where the hyperlink was at times not visible to the user, WGC’s positioned the hyperlink so that user’s eye must travel past the hyperlink to reach the button necessary to proceed. Plaintiff #1 acknowledges that this hyperlink caught his eye, and that he made a conscious decision to ignore it. In addition to the conspicuous placement of the hyperlink, WCG’s hyperlink does not simply state “warranty policy.” Instead, it admonishes the user to “PLEASE CLICK TO SEE OUR IMPORTANT WARRANTY POLICY.” Exhibit A. This type of admonition satisfies the Nguyen notice requirement. WGC’s website also requires affirmative assent. The hyperlink’s position relative to the “ACCEPT AND ORDER” button suggests to any reasonably prudent person that what is being “accepted” is the terms of the important warranty policy. If acceptance of these terms was not what WGC intended, then the button would merely state
The defendant, Western Generator Co. (“WCG”), manufactures and sells a wide range of generators for personal, business, and industrial application. The plaintiff, Richard Albert Imry (“plaintiff #1”), owns and operates an auto body repair shop out of a garage connected to the back of his house. He is joined as plaintiff by his two adult sons, Max Imry (“plaintiff #2”), and Mathias Imry (“plaintiff #3”), who live with Plaintiff #1 and work at the auto body repair shop. Plaintiff #1 purchased a Western Generator Company 17,500 Watt Electric Start Portable Generator from the defendant’s online store. Before accepting the terms and completing the order, the plaintiff noticed the blue hyperlink admonishing him to view WGC’s …show more content…
WGC is entitled to summary judgment since there is no genuine dispute of fact concerning the existence of a valid warranty
The court should grant summary judgment in favor of the defendant, WGC. Per Federal Rule of Civil Procedure 56(e) the non-moving party must show a dispute regarding a genuine issue of material fact to withstand a motion for summary judgment. See Anderson, 477 U.S. 242. A genuine issue of material fact exists where a reasonable jury could find for the non-moving party based on the evidence. Id. at 248-49. If there is no genuine issue of material fact, the moving party is entitled to judgment solely as a matter of law, then the judge must grant summary judgment. Id. at 250.
Plaintiff #1 admits to making the online purchase of the generator. He admits to seeing the hyperlink, ignoring it, and clicking “ACCEPT AND PAY.” Plaintiff #1 does contend that he did not agree to the terms of the disclaimer. (Deposition of Richard Imry, p. 5, line 3). However, this is not a question of fact, but rather a question of law.
B. The hyperlink’s admonition to view the warranty disclaimer and proximity to the ACCEPT and ORDER button on WGC’s website put the plaintiff on inquiry notice of the disclaimer of warranties and therefore the plaintiff was bound by the terms in the contract of …show more content…
Unlike the website in Nguyen where the hyperlink was at times not visible to the user, WGC’s positioned the hyperlink so that user’s eye must travel past the hyperlink to reach the button necessary to proceed. Plaintiff #1 acknowledges that this hyperlink caught his eye, and that he made a conscious decision to ignore it. In addition to the conspicuous placement of the hyperlink, WCG’s hyperlink does not simply state “warranty policy.” Instead, it admonishes the user to “PLEASE CLICK TO SEE OUR IMPORTANT WARRANTY POLICY.” Exhibit A. This type of admonition satisfies the Nguyen notice requirement. WGC’s website also requires affirmative assent. The hyperlink’s position relative to the “ACCEPT AND ORDER” button suggests to any reasonably prudent person that what is being “accepted” is the terms of the important warranty policy. If acceptance of these terms was not what WGC intended, then the button would merely state