Kacy Stein Blaw Notes Chapter 20 Product Liability Theories about defective products There are 2 broad categories 1 Contract theories warranty theories 2 Tort theories Contract Theories warranty theories There are 2 kinds of warranties Uniform commercial code UCC every state has one it deals with many things including the sale of goods about which there are many rules For the exam we don t need to memorize UCC section numbers Express warranties UCC section 2 313 says that an express warranty can be created in 3 different ways a 1 If an affirmation of fact or promise becomes part of the basis of the bargain there is an express warranty that the goods will conform to the affirmation of promise i Basis of the bargain means that the affirmation is a contributing factor or a substation factor in the buyers decision to buy the product Example a statement regarding storage capacity made your decision about buying an iPhone this creates an express warranty If the storage capacity isn t what its supposed to be then the express warranty has been breached b 2 Any description of the goods that becomes part of the basis of the bargain Description is specific and there are categories i The statement that the good is of a certain brand type of model Example I am selling you an iPhone 6s ii By the use of an adjective that characterizes the product Lets say you want to buy a new raincoat so you get one because its described as waterproof This description creates an express warranty iii Drawings blueprints or technical specifications Lets say you re buying a printer and the salesman describes the technical specifications If this influences your purchasing decision then it has become part of the basis of the bargain which creates an express warranty 3 Salesman sells you a sample or model c d Do these kinds of express warranties have to be in writing No they can be oral or written and don t have to include the word warranty or guarantee e Sales talk puffery Statements of value opinion do not create express warranties they are referred to as sales talk or puffery How to do we differentiate i If it is in the sales contract it is more likely to create a warranty than if it appears somewhere else ii The relative knowledge of the parties a care dealer talking to a customer implies an imbalance of knowledge If the dealer says something to the consumer it is more likely to create a warranty because of the imbalance of knowledge f Felley Case supplement Felley bought a used car that was privately for sale It was an 1991 Ford pretty old The couple said that it was in good mechanical condition and that they had experienced to brake problems After he bought it there Implied warranties was a clutch problem that he had to repair for almost 1000 and brake problems that cost another 1400 i He claimed that they breached an express warranty The trial court ruled in Felley s favor and ordered the Singletons to pay ii The Singletons appealed saying that the trial court made an error regarding the condition of the car which supposedly signaled an express warranty iii The buyer wins on appeal because there was an express warranty it was not just sales talk g Do advertisements create warranties In general the more specific the ad is the more likely it is to create an express warranty So an ad could create an express warranty but it doesn t necessarily h What if there are multiple warranties that conflict How do you know which warranty controls There are priority rules i Technical specifications trump samples or models as well as general descriptions A technical spec might be that a printer prints 30 pages in a minute so this would trump a general description of the printer ii Samples models trump general descriptions if a salesman shows you a sample or model as a representation of the product you will be buying this will trump whatever his general description of the product is o Implied warranty of merchantability A warranty that the good shall be merchantable is implied in a contract for their sale of the seller is a merchant with respect to goods of that kind Merchantable fit for the ordinary purpose for which they are used Example if you buy an iPhone you expect it will do certain things like texting calls email etc If you iPhone you buy doesn t do some of these things it isn t fit for its ordinary purpose and therefore has been a breach of the implied warranty of merchantability This only applies if a merchant is selling the goods What does it mean to be a merchant It means that you regularly deal with those kinds of goods If someone sells you their old iPhone you couldn t sue them on a breach of implied warranty of merchantability because they are not a merchant This matters if there is no express warranty because then an implied warranty would apply Summary it only applies against merchants and deals with whether or not the product does what it is supposed to do If it doesn t then it s not merchantable and you could sue the merchant for a breach Hong Case a woman bought chicken from a Roy Rodgers and there was a trachea in her chicken She sues on breach of merchantability because the food was not fit for its ordinary propose of consumption Roy Rodgers owned by Marriott moves for summary of judgment on the theory of a foreign object test asking whether or not the gross thing in the food was part of the food product The court says no to the foreign object test and instead uses a reasonable expectations test This asks if the consumer would reasonably expect to find trachea in their meal and the answer is no Roy Rodgers does not get out of the case o Breach of the implied warranty of fitness for the particular purpose there are 3 conditions goods 1 The seller agrees to know of a particular purpose for which buyer requires the 2 Seller has reason o know buyer is relying on seller s skill or judgment in selecting the particular good 3 Buyer actually relies on seller s skill or judgment in buying the goods Example you are a large person and want to buy a hammock that will support you You don t tell the salesman how much you weigh but its clear that you weigh a lot The salesman sells you a hammock but it doesn t support his weight and the buyer is injured This would be an example of a breach of the implied warranty of fitness for a particular purpose the purpose being to support the weight of a very large person o So the sale of the hammock has not breached the implied warranty of merchantability because it might fulfill
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