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Law Prof Visits Rose Store Rev. B (Version 3)

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On August 10th, Pat, a law school professor, visited Witherknife’s Rose Culture Store to purchase some roses for her rose garden. The salesperson asked her several questions and suggested that she speak to someone in their service department for a free consultation to suggest the proper roses for her garden. Pat was contacted by a service manager, Dave, who scheduled an appointment for August 15th. Dave arrived at her house and spent an hour suggesting the types of bushes that would be perfect for Pat’s yard. He also talked about the various yearly maintenance programs the company offered to assist clients with the maintenance of their gardens and informed her that if she decided to sign up for a maintenance program he would sell each rose bush to her for a discounted amount of $15/bush (the regular price was $30/bush). Dave left several brochures with Pat regarding the different service plans and services covered in the various plans. The following day, Pat sent Dave an email stating the following:
Dave- It was a pleasure to meet you yesterday. I would like to purchase the five rose bushes I’ve listed below. Additionally, I talked to my husband and we want to retain your services for the premium yearly maintenance program which is $100/month ($1200/year).-Pat
Dave received Pat’s email and immediately responded with the following email:
Pat- It was a pleasure to meet you as well. I’m glad that you have decided to give our services a try. I am confident that you will be pleased. I am attaching a confirmation of our service agreement which I have completed with the agreed upon terms. -Dave
The signed agreement detailed the terms that the parties discussed during the consultation and included its standard $5,000 limitation of liability clause, which was not originally discussed.
Pat received the email and responded in an email later that afternoon:
Dave- Got your email and attachment. Can’t wait to see my roses this year! –Pat
Witherknife sent servicemen to perform the work. Three months after the contract began, Pat got severely ill from a new fertilizer that Witherknife had recently applied in her yard. Witherknife was unaware that the new fertilizer was toxic and agreed to pay, but only $5,000 as included in their agreement. Pat comes to your law office for your assistance. Is Pat entitled to more than $5,000 from Witherknife?
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