The case is Roskop Dairy, L.L.C., v. GEA Farm Technologies, Inc., No. S-14-115 (Neb. Dec. 4, 2015). Long story short:
- After installing an automated milking system, a dairy farm started experiencing problems with its cows (many of the cows started suffering mastitis).
- The dairy owner blamed the provider of the milking system.
After a battle of experts in the trial court, the supreme court upheld summary judgment that the mastitis problems were in fact caused by:
- poor hygiene practices by dairy-farm workers, e.g., handling teats with bare hands instead of gloved hands and using the same towels to wipe off multiple cows’ teats, which can transmit bacteria from sick cows to healthy ones; and
- poor maintenance of the milking system, e.g., allowing vacuum vents on the udder clamps to become clogged (which apparently happens most often with manure).
I read the case thinking there might be a contract-drafting lesson there, but I didn’t find one — other than to keep in mind that when things go wrong, people will often:
- assume that correlation equals causation; and
- point fingers at any available scapegoat, with suppliers of automated systems often being convenient targets.
Just an idea
…Maybe an ”Reliance on Its Own Judgment” Clause
“Having recourse to its own skill and judgement, Customer is to make sure the Product meets its needs including animal welfare/health, …..
and, why not, with an additional “Acknowledgment” provision….
“Customer acknowledges having had adequate time to get all needed satisfactory explanation , etc. “
Patrick, your language certainly couldn’t hurt in court and might even result in early dismissal of the case on the pleadings, thus saving the defendant from the expense of discovery, hiring an expert witness, and summary-judgment proceedings. (The kind of language you suggest shows up very often in software-license warranty disclaimers.) If that were to be the case, it’d be an example of how a few extra words can be cheap insurance against creative trial counsel on the other side.
Playing devil’s advocate: The additional value of having such language in the contract would have to be balanced against (i) the extent that the customer push-back might delay getting to signature; and (ii) that’s the way that contracts grow to giant size, which can drive clients crazy.
For an example of no-reliance language such as you suggest, see the Common Draft reliance disclaimer.
Thanks for writing!