2001 Conference Proceedings

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THE LEMON LAW AND ASSISTIVE TECHNOLOGY

Taymour Ravandi, Senior Attorney
PROTECTION & ADVOCACY, INC.
100 Howe Avenue, Suite 235N
Sacramento, CA 95825
ph. (916)488-9950

THE LEMON LAW

In this session, the speaker will describe California's protections for consumers of assistive technology under the Lemon Law. He will give case examples of individuals using this law successfully. There will also be written materials accompanying this presentation.

Many people ask whether California's Lemon Law protects people who buy assistive technology devices that don't work as they should. It does.

The Lemon law provides legal remedies in the form of express and implied warranties for people who buy consumer goods, which include assistive devices. An assistive device is any piece of equipment that helps overcome the effects of a disability such as a medical device (e.g., a prosthetic, wheelchair, or hospital bed), an audio or tactile device for the blind, a TDD machine, a communication device. It does not, however, include prescriptive lenses and ophthalmic goods if you are not blind.

The Lemon Law has some important protections just for people who buy assistive devices. For instance, though the law generally covers only new consumer goods, it covers both new and used assistive devices. Also the use of the words "as is" or "with all faults" in the contract, in the warranty, or on the label does not affect your express or implied warranty rights. But such terms can affect your rights when you buy other consumer goods.

The warranties of the Lemon Law require that any assistive device sold at retail must be usable by, and fit for, the needs of the person with a disability who will use it. If it is not, the device is defective and you have a series of rights against the seller, the distributor and the manufacturer.

An "express warranty" is a written guarantee that the device will perform the specific functions for which you intend to use it. If it does not perform those functions, you have 30 days to return the device. At that point, the seller must either adjust the device or replace it with another device that meets your needs. Otherwise, the seller must promptly refund the total amount you paid.

For wheelchairs, the manufacturer does not have to recite any specific language in the express warranty, but there must be a written statement that the wheelchair is free of defects. The warranty applies to all types of wheelchairs ? new and used, manual and power, standard and customized. Used wheelchairs must be refurbished or reconditioned.

Assistive devices other than wheelchairs must come with a minimum 30-day express warranty. The 30-day period begins on the day you receive the device or on the date the seller completes fitting the device to your needs, whichever is later. The rule is different for wheelchairs. For new wheelchairs, the express warranty must be for a minimum of one year, and it can be as short as 60 days for used wheelchairs. The express warranty for both new and used wheelchairs begins on the first date that the chair is delivered to the person who will use it.

An implied warranty is a legal guarantee that the device must meet an acceptable level of performance. That is to say, regardless of any disclaimers by the seller or manufacturer, the law says the device must be fit for the purposes for which it is sold. If it is not, implied warranties have been breached and you may be able to have the device repaired or have your money reimbursed. You may also be able to recover damages that are caused by a faulty device.

Implied warranties last as long as express warranties. But, they cannot be for less than 60 days, nor for more than a year. Therefore, if an express warranty is to last for 60 days to one year, the express and implied warranties will cover the same period. But if the express warranty is for less than 60 days, the implied warranties will have the minimum 60-day period. If the express warranty is for more than a year, the implied warranties will be for the maximum one-year period. When the express warranty does not have any stated duration, then the implied warranties are valid for one year.

You can bring a Lemon Law action in court within four years of the date you discover the problem. If you use small claims courts, you can sue for $5,000, or two suits for not more than $2,500 each in any one calendar year.


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