Deck 22: Product Liability: Warranties and Strict Liability

Question 1

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 barred from suing the manufacturer, because he voluntarily assumed the risk of the defective brakes.

Answer 1

True

Question 2

Despite 402A's bar of contributory negligence in strict liability cases, some courts apply comparative negligence to strict liability cases.

Answer 2

True

Question 3

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.

Answer 3

True

Question 4

Bradley buys a television set that turns out to be stolen.He can sue the seller for breach of warranty.

Question 5

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

Question 6

Fitness for a particular purpose and merchantability are implied warranties that apply only to sales by commercial vendors.

Question 7

The warranty of merchantability is found in Section 402A of the Restatement of the Law of Torts.

Question 8

Contributory negligence is a defense to a warranty of merchantability cause of action.

Question 9

The Code does not label the warranty of title as an implied warranty, despite the fact that it arises out of the sale and not from the words or conduct of the parties.

Question 10

Ed buys a car from a friend "as is." The friend tells him, "In my opinion, this car is in excellent mechanical condition." The friend has made an express warranty.

Question 11

Under comparative negligence, the court apportions damages between parties in proportion to the degree of fault or negligence it finds against them.

Question 12

An express warranty requires that the warranty be expressed in words.

Question 13

Jennifer purchased a used refrigerator from her next-door neighbor, a mail carrier.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.

Question 14

All warranties are construed as consistent with each other and cumulative, unless such construction is unreasonable.

Question 15

The Magnuson-Moss Warranty Act is administered by the Federal Trade Commission.

Question 16

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.

Question 17

The Magnuson-Moss Warranty Act applies only to the sale of consumer goods.

Question 18

Section 402A of the Restatement applies only if the defective product is unreasonably dangerous.

Question 19

Comment (m) to Section 402A provides that the basis of strict liability rests solely in tort and, therefore, is not subject to contractual defenses.

Question 20

The word "merchantability" must be mentioned in a disclaimer of an implied warranty of merchantability.

Question 21

Lucille bought a new lawn mower on sale at a local discount store.The mower did not come with an instruction book nor did it have warning labels placed near dangerous parts of the mower.If Lucille injures herself while using this mower, she can claim that she purchased a defective product.

Question 22

The Restatement (Third) of Torts: Products Liability has experienced rapid adoption by the states.

Question 23

An implied warranty is found in the language of a sales contract.

Question 24

Misuse or abuse of the product is a defense to an action brought under 402A of the Restatement (Second) of Torts.

Question 25

A warranty of title may be included only by specific language or by certain circumstances.

Question 26

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

A)an express warranty of merchantability regarding the water heater.
B)an implied warranty of merchantability regarding the water heater.
C)an implied warranty of fitness for a particular purpose.
D)no warranty, but only a statement of opinion.

Question 27

The Code does not permit a seller to seek to impose time limits within which a warranty is effective.

Question 28

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

Question 29

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

Question 30

The liability of manufacturers and sellers of goods for a defective product or for its failure to perform adequately may be based on one or more of the following: negligence, misrepresentation, violation of a statutory duty, warranty, and strict liability in tort.

Question 31

Under Alternative A of the Code's horizontal privity provision, a corporation may bring a case against the manufacturer of a defective product for breach of the warranty of merchantability.

Question 32

Section 402A provides that liability exists only if the product reaches "the user or consumer without substantial change in the condition in which it is sold."

Question 33

If the seller of goods is an expert and gives an opinion with regard to the goods, the seller may be liable for breach of warranty.

Question 34

An implied warranty exists by operation of law.

Question 35

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.

Question 36

Under the CISG, the seller must deliver goods, unless otherwise agreed, that are fit for the purposes for which goods of the same description would ordinarily be used.

Question 37

Statutes of repose were enacted to give consumers more rights against large manufacturers.

Question 38

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.

Question 39

An express warranty may consist of a sample.

Question 40

In Greene v.Boddie-Noell Enterprises, Inc., the court found that the fact that the plaintiff was burned proved the product was dangerously defective.

Question 41

Strict liability in tort imposes liability on:

A)a manufacturer of a component used within a larger product, the manufacturer of which modifies the component for use in its finished product.
B)a manufacturer of a defective component used in a larger product if the manufacturer of the finished product made no essential change in the component.
C)a merchant or nonmerchant seller of a defective product which is unreasonably dangerous to the user or consumer.
D)All of the above.

Question 42

Bob rented a lawn mower from Scott Rentals.The lawn mower wheel was loose when Bob picked up the mower.When he began to use it, the wheel fell off, causing the mower to tip over onto his foot.Under what theory can Bob hold Scott liable for his injuries?

A)Breach of warranty of merchantability.
B)Strict liability in tort for a defective condition.
C)Both of the above.
D)Neither theory is applicable to leases.

Question 43

An express warranty within the meaning of the Code is created by which of the following?

A)A sample.
B)A description.
C)A promise.
D)All of the above.

Question 44

Which of the following is true with regard to implied warranties under the Code?

A)They depend on the type of contract or sale entered into.
B)They are a result of specific language in the sales contract.
C)They continue the common law rule of caveat emptor.
D)They are intended to protect the seller rather than the buyer.

Question 45

Which of the following is generally NOT a defense to a claim against a manufacturer under 402A?

A)Contributory negligence on the part of the plaintiff.
B)Voluntary assumption of the risk.
C)Misuse or abuse of the product.
D)Subsequent alteration of the product by the plaintiff.

Question 46

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

A)Popcorn containing large amounts of genuine butter.
B)150-proof Virgin Island rum.
C)A chainsaw sold with the safety shielding removed.
D)A sports car capable of speeds in excess of 150 mph.

Question 47

Whether an implied warranty arises out of the circumstances under which the parties enter into a contract may depend on:

A)the type of contract entered into.
B)the seller's merchant or non-merchant status.
C)applicability of other statutes.
D)All of the above.
E)None of the above.

Question 48

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.In this situation:

A)Lydia can sue Karen for breach of the warranty of merchantability, because the exerciser is not fit for the ordinary purpose intended.
B)Karen can sue the manufacturer for breach of the warranty of merchantability, because she was the original buyer.
C)Lydia cannot sue Karen for the warranty of merchantability because Karen is not a merchant.
D)Lydia cannot sue Karen, because they are not in privity of contract.

Question 49

The warranty of title for the sale of goods found in the Code:

A)may be excluded with the phrase "as is."
B)will vest title under Article 2A.
C)may not be excluded or modified by the seller.
D)will apply regardless of whether it is provided for in the contract unless the parties have specifically excluded it.

Question 50

An obligation of the merchant-seller that the goods are reasonably fit for the ordinary purposes for which they are manufactured and sold, and the goods are of fair average quality is known as:

A)a warranty of merchantability.
B)strict liability.
C)an express warranty.
D)a warranty of fitness for a particular purpose.

Question 51

Mark tells Leslie that his stereo has quadraphonic speakers because he was told that when he bought it.Leslie buys the stereo, but it does not have quadraphonic speakers.Is Mark liable for breach of warranty?

A)No, because he did not know his statement was false.
B)No, because he did not promise her that the speakers were quadraphonic.
C)Yes, because the statement was false.
D)Yes, because Mark was not acting in good faith.

Question 52

Eric bought a new snowmobile from the North Pole Manufacturing Company.After buying the machine, Eric then modified the spark plugs and a few other things in order to soup it up.In February, just after a snowfall, Eric was driving the snowmobile, when it tipped over, trapping him beneath it.His leg was severely burned.Eric now wants to sue North Pole for strict liability in tort.Eric:

A)will likely win the suit, because of the faulty design of the snowmobile.
B)will likely lose the suit, because the machine has been altered since its manufacture.
C)has assumed the risk of using the snowmobile.
D)cannot sue the manufacturer, because horizontal privity is lacking.

Question 53

In the In Re L.B.Trucking, Inc.case:

A)warranty provisions of the UCC did not apply because the sale of goods was merely incidental to the service aspect of the contract.
B)Thomas's statements were found by the court to be mere puffing or sales talk.
C)Southern States was found to have breached both express and implied warranties.
D)Durham did not rely on Thomas's statements, so they could not be considered warranties.

Question 54

Matt tells Ron that the snow boots he is selling are capable of protection at temperatures of 20° below zero.Ron orders a pair for his trip to Greenland.Upon delivery the box states "will protect your feet in temperatures down to 30° below zero".The first night's temperature goes down to 27 below.Ron suffers frostbite on all of his toes.Ron then sues for breach of warranty.What is the result?

A)Breach, because the latter express warranty is valid.
B)No breach because Matt's statement was merely opinion.
C)No breach because Matt said 20° below zero.
D)No breach because Matt is allowed to be wrong.

Question 55

Which of the following is NOT included within the Code definition of merchantability?

A)Reasonably fit for the ordinary purposes for which the goods are used.
B)Pass without objection in the trade under the contract description.
C)In the case of fungible goods that they be of a quality that exceeds the description and be above average.
D)Be of fair, average quality.

Question 56

Which of the following would most likely be a defect under 402A of the Restatement of Torts?

A)A chair produced without inserting the appropriate screws.
B)A product with a defective design that is nevertheless the "state of the art."
C)Vodka that is 100 proof and makes people drunk and causes liver damage after years of heavy use.
D)All of the above are defects under 402A.

Question 57

Which of the following is not an express warranty?

A)Restating facts or market figures about a product.
B)The opinion of an expert in a certain field regarding a product in that field.
C)A statement of the product specifications.
D)The seller's opinion of the value of goods.

Question 58

Product liability exists if:

A)the consumer misuses the product.
B)the consumer alters the product before he or she uses it.
C)the product reaches the consumer without substantial change in the condition in which it is sold.
D)the consumer abuses the product.

Question 59

If the buyer inspects the goods before entering into the contract, then implied warranties:

A)still apply to any defects.
B)will in no circumstances be applicable.
C)do not apply to defects that are apparent upon reasonable inspection.
D)None of the above.

Question 60

Leslie purchased 100 flower pots from a local merchant.Warranties which are not included in her sales contract, but exist by "operation of law," are the:

A)express warranties.
B)exclusive warranties.
C)quasi warranties.
D)implied warranties.

Question 61

The UCC permits a seller to limit or modify the buyer's remedies for breach of warranty:

A)in all cases.
B)except for unconscionable limitations or for exclusions of consequential damages.
C)in no cases, as this would be contrary to public policy.
D)except when the seller seeks to limit the time within which the warranty is effective.

Question 62

In bringing a warranty action, the buyer must prove that:

A)a warranty existed.
B)the warranty has been breached.
C)the breach of the warranty proximately caused the loss suffered.
D)All of the above.
E)None of the above.

Question 63

Alice is browsing in a commercial art gallery when she sees a painting that she likes.Arthur, who is the manager of the gallery, tells her that in his opinion the painting is a genuine Leroy Neiman work.Based upon that representation, Alice buys the work for $5,000.She later discovers that the painting is only a cheap copy of the original that is worth no more than $50.Arthur has:

A)breached an express warranty to Alice that the painting is a Neiman work.
B)breached the warranty of merchantability.
C)not breached a warranty because he was merely expressing his opinion.
D)breached an express warranty, the warranty of merchantability, and the warranty of fitness for a particular purpose.

Question 64

Discuss the various means by which states have limited the punitive damages a plaintiff can collect in a product liability lawsuit.

Question 65

Greg has been in the business of selling encyclopedias for twenty years.Margaret agreed to buy a set if Greg would also bring her a bookcase for them.Greg bought one and sold it to Margaret along with the books.While shelving the books, she ran her hand over the back edge of the shelves and cut herself severely.The wood was not finished on that side and nails were protruding through the shelf.Can Margaret sue Greg under strict liability?

A)Yes, because the bookcase was in an unreasonably dangerous condition.
B)Yes, because the bookcase was defective.
C)No, because she was not a true consumer under Sec.402A.
D)No, because Greg is not a seller under Sec.402A.

Question 66

Geoff's fiancée, Susan, comes to meet his parents for the weekend.On Saturday morning, while using Geoff's mother's hair dryer, the blower short-circuits sending sparks across the guest room.Susan's angora sweater and her hands are covered with tiny burns.Susan's mother is a lawyer and wants her to sue the seller of the dryer.Can she?

A)No, because horizontal privity would extend only to members of the family.
B)No, because privity would require that Geoff's mother sue.
C)Yes, since she is a guest in the home of the buyer, the warranties would extend to her in most states.
D)Yes, since under the Code all reasonable users are protected from injury.

Question 67

Define and discuss horizontal and vertical privity.Explain the effect of the Code and the courts on the concept of privity of contract.

Question 68

Strict liability can be avoided where:

A)the seller uses due care and diligence in preparing the goods.
B)the seller manufactures products of this type on a regular basis.
C)the seller gives a disclaimer of the defect to the buyer in the sales contract.
D)the product was not in the same condition when the consumer bought it as it was when the manufacturer sold it.

Question 69

Hubert bought heavy-duty, sharp hedge clippers to trim the hedges in his yard.In the process of using the clippers, he severely cut his hand.He is now suing the manufacturer because the clippers are unreasonably dangerous.Can he recover? Explain.

Question 70

Article 2A carries over the warranty provisions of Article 2 with relatively minor revisions that reflect differences in:

A)style.
B)leasing terminology.
C)leasing practices.
D)All of the above.
E)(a) and (c) but not (b)