Exam 19: Warranties and Product Liability

The most common forms of implied warranties are the implied warranty of merchantability,the implied warranty of fitness for human consumption,and the implied warranty of fitness for a particular purpose.

On a hot summer afternoon,Rob takes his brand new Rocketski (a personal watercraft similar to a Jet Ski and sometimes referred to as a "waterbike")out to a local park at a reservoir to try it out.The Rocketski has a built-in CD stereo sound system,with speakers,but also with a headphone jack.The owner's manual contains a warning that the headphones should only be used in light traffic areas and with extreme caution.Rob takes the Rocketski out on the water and puts the headphones on with his new CD,the greatest hits of the Ultradeath Slashers and Destroyers.He takes the machine out to the open area of the reservoir and tries out the machine.He's never done this before,is having lots of fun,and then wants to show his friends back on shore how fast the Rocketski can go.He comes close to shore at full speed where there are many swimmers and sailboards in the water.Several swimmers are yelling at him to stop,but he doesn't hear anyone because he's listening to his favorite song,"Destroy Me Bad,My Love," at full volume on the headphones.He is rapidly approaching Sally on her sailboard,but doesn't see her because he's looking for his friends on shore.He would have missed Sally (just barely),but just as he got near her the engine on the Rocketski suddenly failed,causing the machine to lurch suddenly to the left and into Sally and her sailboard.Sally suffers severe injuries and sues Rocketski,Inc.Discuss the likely basis of the suit,claims raised,possible defenses,and likely outcome,assuming that the engine defect occurred in the manufacture of the Rocketski.

Susan purchases a new blow-dryer from Sizzle Corporation and sends the company her warranty card.She uses the blow-dryer for a few months without incident.Meanwhile,the manufacturer,Sizzle Corporation,discovers that after a few months of usage,some of the dryers overheat and catch on fire.Sizzle sends out notices to everyone who purchased a blow-dryer warning of the fire danger; but Sizzle was slow,and it took two months to get out the notices.Susan got the notice and planned to return the blow-dryer.She went ahead,however,and continued using the dryer until it was convenient for her to make the return.Unfortunately,prior to Susan returning the dryer,it overheated and burned a significant area on Susan's expensive,antique bedroom chest.Susan wants to sue Sizzle Corporation.Discuss the legal issues involved.

Compensatory damages in a strict liability action are meant to punish the defendant and to send a message to the defendant (and other companies)that such behavior will not be tolerated.

For which of the following warranties must the seller be a merchant?

Supervening events cannot be an effective defense in a strict liability product liability case.

In a product liability action,the plaintiff typically relies on the traditional tort theory of negligence or the modern tort doctrine of strict liability.

Under the implied warranty of merchantability:

There is no requirement that a buyer establish that an incorrect statement was part of the basis of the bargain in order to recover for breach of express warranty.