Exam 25: Product Liability: Warranties and Torts

Strict tort liability is applied:

If a lawn mower will not cut any type of grass, there is a breach of the warranty of merchantability, even if the warranty was conspicuously disclaimed.

To recover liability, the plaintiff must show the defendant was negligent.

Under what type of warranty is the seller obligated to fix or replace a defective product within a reasonable time at no cost to the buyer?

The warranties of both merchantability and fitness for a particular purpose exist under the Convention on Contracts for the International Sale of Goods (CISG).

Whenever a sale of goods is made, certain warranties are implied unless they are expressly excluded.

Arthur was looking for a Father's Day gift for his dad, Tony. Tony was a cigar smoker but Arthur was a nonsmoker. Arthur went to a cigar store and was looking around when the proprietor suggested Arthur try a new imported cigar. The proprietor touted this new cigar as "just like the great Cuban cigars." Arthur was reluctant but did light one of the cigars, which had a pleasant aromatic smell and took about five to six minutes to be consumed. On this basis, Arthur bought a box of the cigars and presented them to his father as a gift. When the father smoked one of the cigars, it gave off an acrid smell and was completely consumed in less than two minutes. When Arthur saw this, he was very upset and asked his father to try another. The same situation was repeated with the acrid odor and the cigar burning down very quickly like a cigarette. After Arthur tried unsuccessfully to return the cigars for a refund, Arthur filed a small claims court action against the store. The case was based on the failure of the purchased cigars to conform to the sample, breach of the implied warranty of merchantability, and the misleading statement "just like the Cuban cigars." Discuss the probable outcome of the case.

In applying the "foreign substance/natural substance" liability test in the sale of food or drink, courts hold that there is liability if the seller does not deliver to the buyer goods of the character that the buyer reasonably expected.

Sal was at home going through his normal workout when he bent his barbell bar. Sal is a professional bodybuilder, and this fact is obvious from his appearance. Sal went to his local sporting-goods store and was approached by a clerk wishing to assist him. Sal told the clerk about his problem and the clerk asked Sal to wait while an appropriate bar was located. The clerk presented Sal with a bar that the clerk said "is just what you need for your type of weight requirements." Sal paid for the bar and was returning home when he stopped at a health food restaurant. The drink that he ordered had an unusual taste, but the food establishment refused a refund. Sal became ill from the drink, which, as it turned out, had a toxic substance in it. Sal had to be hospitalized. When Sal was able to work out again, he attached the weights to the new bar and lifted the bar under his chin. The bar snapped in the middle and severely cut Sal. Sal is angry about the drink and the barbell. What are the applicable warranties involved? Does Sal have a cause of action?

If a seller sells an automobile to a buyer and then delivers the car with an outstanding lien on it that was unknown to the buyer at the time of the sale, there is a breach of the implied warranty of merchantability.

The theories of product liability are mutually exclusive.

A seller cannot be held liable for the breach of an express warranty if the seller honestly believed that the warranted statement was true.

Provisions in a sales contract that exclude implied warranties bar the buyer from recovering damages for fraud.

By the mere act of selling, a warranty is made that the:

If there is a written contract, a disclaimer of the implied warranty of merchantability must be conspicuous.

Manufacturers who prepare goods to the buyer's specifications are under exceptionally stringent warranty obligations for fitness for a particular use.

Any warranty that does not provide the complete protection of a full warranty is called a warranty in breach.

A merchant has greater potential warranty liability than does a casual seller.

Which of the following implied warranties is created when the buyer relies on the seller to pick out the goods that the buyer requires to meet a stated need?

A seller's opinion cannot ordinarily be treated as a warranty.