While small claims court will limit your damages (with the limit
depending on your state), you're probably better off because neither
side can have a lawyer. You'll have to pick either the manufacturer or
Lowe's to sue in small claims, not both. I'd pick the manufacturer. 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. Also, the manufacturer is unlikely to show
up at all, and you'd win by default, though collecting could be difficult.
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.
On the other hand, everyone should know that the typical person on the
floor of the big box stores is hardly an authority on anything. They
can point you to the aisle for a product, but I think expecting them
to be a technical expert on the effects of a particular product on
concrete is pushing it. And you can't prove what the guy actually
said, can you? But even going by what you say he told you, I don't
see it as helping you much, if at all:
"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".
So, you read the label and it indicated it was OK for your application
and it must have been consistent with what the floor guy told you or
you would not have used it. Did it have the same melting ingredient
that you bought previously or not? The whole idea of "what they used
to carry" is very vague. It's not unusual to find stores like this
carrying various brands at various times. Both you and the floor guy
could be right. 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.
You keep pushing the point. When I went to the store to complain, I pointed
the associate out to the manager. The associate told the manager exactly
what he said which coincided with what I said.
No matter what you think of the store's associates, they mostly know the
store policies and usually know about the products in their aisles.
You must have very different guys working in the Lowes in your area
than here. In my experience, at any of the big box stores, it's more
common to find them anywhere from clueless to somewhat helpful.
Sometimes you find a really good guy, but it's more the exception.
I guess I'm still waiting to hear what it is that the sales associate
or Lowes did that was wrong. All you say he told you was that the
product in question was the same as "what they used to sell", except
that it has sand added. What exactly did the product contain? What
did the "product they used to sell", which could itself be multiple
things, contain? Can you show that the particular compound is not
suited to the application?
You can sue anyone you want. But it seems most people here don't
think Lowes is at fault.
On Thu, 8 Apr 2010 11:15:24 -0700 (PDT), email@example.com wrote:
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
A good quesiton for misc.legal.moderated I think.
Suit yourself. I'm just telling you where you'd have the most chance of
getting any restitution. You have a very weak case, but it's possible
that the manufacturer would offer you something just to get rid of you,
but Lowe's is unlikely to settle.
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
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
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.
I guess my 1st question would be what do you want? Second: are you going to
subpoena the associate? Because you can't use hearsay. You'll have to prove
that your cement wasn't at fault. It was a colder than avg. winter and it
may have had something to do with it. I doubt you'll be able to assess any
damage to Lowe's without a deposition or court appearance from the
associate. The product's instructions and disclaimer is what you'd be more
likely to use in court. Be prepared to furnish proof your cement isn't to
blame; partially or completely. Actually, what Lowe's told you is correct.
The associate probably wouldn't be able to assess any liability to Lowes
because he would only be expected to tell you what is stated on the product.
See? It always goes back to the product. Personally, I'd take Lowes out of
the loop. Your proof is the product's instructions and any disclaimer. Maybe
you'll get lucky and the co. lawyers will make you an offer. If you go to
court....I donno.....do your homework. They will throw it back on you.
When I see that subject line. I think of Mr. Rogers
Neighborhood and him singing "Everything grows together,
because it's all one piece."
In the Lowe's blows, everything blows together, because it's
all one department store.
I'll bet some lawyers will argue that sellers can be held responsible
for products they sell when they don't explicitly say otherwise. Also
the fact that a Lowe's employee said the new product was the same as
the old, except for the addition of sand, may be the key to getting
Lowe's to accept responsibility.
When I lived within walking distance of a Lowe's and a Home Depot, I
did 90% of my shopping at HD because Lowe's employed a much worse
class of morons. Example: one summer, it took three Lowe's
employees to find where the air conditioners were located. OTOH when
I asked a HD employee in the garden equipment dept. for a funny
electrical switch, he told me not only which aisle at the opposite end
of the store had it but also how high off the floor it would be.
We had the same problem with that stuff at work. Problem is it damaged
just some section of the concrete, pieces that had been replaced at
one time, and not others. This would indicate that the quality of the
concrete, sealer, or workmanship was also involved. Lots of luck with
sorting it all out. I put out 10,10,10 fertilizer before it freezes
over. Melts the ice, doesnt hurt anything. If I dont get it out in
time I just put it over the ice for traction.
That's between Lowes and the manufacturer. It has little or nothing
to do with you. You have a relationship with Lowes. It's called
privity. Whether you have such a relationship with the man. I'm not
sure, but I know you have it with Lowes. And btw, Lowes does
business in your state and is thus easy to sue.
If Lowes has an agreement with the man. that they must assume
liability, like he says, when lowes pays you or loses to you,
depending on what situations the agreement covers, the man must
reimburse them. Maybe this guy went to a meeting or read a memo, but
he doesn't understand law.
In fact they warranty every product they sell, whether he admits it or
not. Stated warrantees are iirc limitations on the common law
warranty. Everything is warranted to be suitable for the normal use
for which it is intended. Something like that.
Either he has no knowledge of the law or he is trying to bamboozle
you. The other side, and the other side's lawyers will often,
probably usually try to convince complainers that they have no case.
Don't take legal advice from the other side.
If you don't complain higher up, and don't sue them, I hope you got
his name so you can call him back and explain how ignorant he is on
these two points.
P&M because it's been 3 days in a busy group.
HomeOwnersHub.com is a website for homeowners and building and maintenance pros. It is not affiliated with any of the manufacturers or service providers discussed here.
All logos and trade names are the property of their respective owners.