Exam 22: Product Liability: Warranties and Strict Liability

With respect to horizontal privity, the strict liability in tort of manufacturers and other sellers extends to only buyers, users, and consumers, but not to injured bystanders.

Jared drives his car knowing that the brakes are defective and has an accident in which the car is damaged and he is injured. He will likely be unable to recover from the manufacturer, because he voluntarily assumed the risk of the defective brakes.

Jennifer purchased a used refrigerator from her next-door neighbor. When she took it home and plugged it in, the refrigerator burst into flames. The seller in this case is in breach of the implied warranty of merchantability.

The Code requires that the affirmations, promises, or descriptions the seller makes be relied on by the buyer to be an express warranty.

Few obstacles to recovery in warranty cases present serious problems to plaintiffs in strict liability actions brought pursuant to Section 402A because this section was drafted largely to avoid such obstacles.

a. Under the Code, what constitutes an "express" warranty? How does an express warranty arise? b. Which of the following would be an express warranty? Explain. (1) "This is the best computer available in town." (2) "This car has new brakes." (3) "This sample is just like the one in the box." (4) "In my opinion, this is a better video recorder than the one made by RCA." (5) "As a mechanic, I think this car is in good running order and should give you no problems for at least three months."

Which of the following would constitute a defect within the meaning of 402A of the Restatement?

Under the CISG, if at the time of entering into the sales contract, the buyer knew or could not have been unaware of the lack of conformity, the seller is not liable for the warranty of particular purpose, ordinary purpose, or sale by sample or model.

Implied warranties may be excluded by course of performance, course of dealing, or usage of trade.

Horizontal privity pertains to remote sellers within the chain of distribution.

Identify at least four means states have used to limit the punitive damages a plaintiff can collect in a product liability lawsuit.

Implied warranties under the Code:

The main provision of the Restatement (Third) of Torts, Section 2, recognizes three types of product defects: manufacturing defects, design defects, and failure to warn, but it imposes strict liability only for manufacturing defects.

Terrell asks a salesperson what size of water heater he should buy for a twenty-unit motel. If Terrell purchases a tank based on the salesperson's suggestion, the salesperson's recommendation is:

Karen decided to sell her stair step exerciser, because she wasn't using it as much as she thought she would. Her friend Lydia bought it from Karen for $100. The first day that Lydia used the exerciser, it fell apart, injuring Lydia's ankle. Lydia:

Barry buys a car from a dealer, which is sold to him "as is" and "with all faults." The next day, the engine blows up. Barry can sue the dealer for breach of the implied warranty of fitness.

Both design and manufacturing defects can subject a manufacturer or seller to product liability.

As of the writing of the textbook, the Restatement (Third) of Torts: Products Liability had replaced the Second Restatement in all but four of the states.

Which of the following is not an express warranty?

Which of the following products would impose strict liability in tort according to Section 402A?