Deck 20: Product Liability

Question 1

Mr.Green purchases a treadmill from Mr.Brown.Mr.Green tells Mr.Brown that he is purchasing the treadmill to jog and sprint.The treadmill that Mr.Green purchases does not allow for speeds faster than walking.Mr.Green should be able to recover his purchase money or receive a different machine based on the UCC warranty of fitness for a particular purpose.

Answer 1

True
Explanation: Mr.Brown is liable under the UCC warranty of fitness for a particular purpose because he knew the particular purpose for which Mr.Green needed the treadmill.

Question 2

In order to be liable under the implied warranty of merchantability,a seller must be a merchant.

Answer 2

True
Explanation: Under section 2-314 of the UCC,claims of merchantability can succeed only where the seller is a merchant with respect to goods of the kind sold.

Question 3

Basis-of-the-bargain damages are almost always awarded in tort cases.

Answer 3

False
Explanation: When the buyers of defective goods have not received full value for the goods' purchase price,the resulting loss is usually called basis-of-the-bargain damages;it is the value of the goods as promised under the contract,minus the value of the goods as received.Basis-of-the-bargain damages are almost never awarded in tort cases.

Question 4

If a seller gives a written warranty for a product to a consumer,the warranty must be designated as full or limited.

Question 5

The owner of Café Coffee Day declares that his restaurant makes the world's best cup of coffee,this is an example of an express warranty.

Question 6

A statement in an advertisement can sometimes be considered an "express warranty."

Question 7

An implied warranty is created by operation of law rather than stated by the seller or written in a contract.

Question 8

A disclaimer of the implied warranty of merchantability must be in writing to be enforceable.

Question 9

A disclaimer of the implied warranty of merchantability can be oral.

Question 10

A remedy limitation is more likely to be declared unconscionable in consumer cases involving personal injury.

Question 11

A description that gives rise to an express warranty under which the goods must be as described,amounts to an express warranty regarding quality or duration of the goods' future performance.

Question 12

When determining whether a manufacturer was negligent in adopting a particular design,courts use the utilitarian test.

Question 13

The preemption defense rests on a federal supremacy premise-the notion that federal law overrides state law when the two conflict or when state law stands in the way of the objectives underlying federal law.

Question 14

Jones purchased a second hand car from Ralph with an assurance of no problems in the car. If the car turns out to have a mechanical problem,Jones will succeed in his claim under express warranty.

Question 15

Punitive damages are awarded to compensate for the losses a person has suffered.

Question 16

The increasing use of comparative principles in product liability cases is due to the dissatisfaction with the three traditional defenses used in product liability cases.

Question 17

Mental distress and pain and suffering are examples of noneconomic damages.

Question 18

Manufacturers who fail to inspect their products before being shipped can be liable for negligence.

Question 19

A disclaimer is a clause attempting to block recovery of certain damages.

Question 20

Strict liability was first promulgated in the Restatement (Second)of Torts in section 402A.

Question 21

Which of the following is an express or implied promise about the nature of the product sold?

A)Warranty
B)Caveat
C)Advertisement
D)License

Question 22

The 20th century product liability law is best characterized by the phrase:

A)res ipsa loquitur.
B)caveat venditor.
C)caveat emptor.
D)laissez-faire.

Question 23

Goods that are unmerchantable are:

A)unfit for any use.
B)unfit for the ordinary purposes for which such goods are used.
C)unfit for the particular use that the buyer intends.
D)unfit for the particular use that the buyer intends,and the buyer is a merchant.

Question 24

The most important requirement of goods regarding their merchantability is that they must:

A)be fit for the ordinary purposes for which they are used.
B)be passed without objection in the trade.
C)be adequately contained,packaged,and labeled.
D)conform to any promises or statements of fact made on the label.

Question 25

The Elle Corporation manufactures fingernail polish.Suzy buys a container of Elle's fingernail polish,applies it to her nails,and suffers a severe allergic reaction.She sues Elle under the implied warranty of merchantability.The test for determining whether Suzy will recover is whether:

A)the nail polish she bought was suitable for the needs of the average consumer.
B)the nail polish she bought properly performed its function of coloring one's nails.
C)such a reaction in an appreciable number of consumers was reasonably foreseeable.
D)the ingredient causing the reaction was foreign to the nail polish or natural to it.

Question 26

The implied warranty of fitness for a particular purpose is violated when the goods are:

A)unfit for any use.
B)unfit for the ordinary use for which such goods are used.
C)unfit for the particular use that the buyer intends.
D)unfit for the particular use that the buyer intends,and the buyer is a merchant.

Question 27

According to UCC section 2-315,________ for a particular purpose arises when the seller has reason to know a particular purpose for which the buyer requires the goods.

A)express warranty
B)warranty of merchantability
C)implied warranty of fitness
D)multiple express warranties

Question 28

Which of the following statements characterizes an implied warranty of fitness?

A)It is covered under UCC section 402A.
B)The seller relies on the buyer's skill or judgment in making a purchase.
C)Any seller,merchant or nonmerchant,may make this implied warranty.
D)It has the same tests as those for implied warranty of merchantability.

Question 29

Statements made in an advertisement may create what kind of warranty?

A)Express
B)Implied
C)Corporate
D)Fiduciary

Question 30

Which of the following doctrines often proves helpful to plaintiffs who bring a product liability lawsuit alleging negligence?

A)Res judicata
B)Res ipsa loquitur
C)Caveat venditor
D)Caveat emptor

Question 31

In order to recover for breach of an express warranty,a plaintiff must show that:

A)the warranty was part of the basis of the bargain.
B)the seller gave a sample or model of the goods.
C)the warranty was in writing.
D)the warranty used the words "warrant" or "guarantee."

Question 32

Ahmed,a lawyer,sold his car to Carlos.Has an implied warranty of merchantability been created by this transaction?

A)Yes,because a car is a "good" and the Uniform Commercial Code applies to contracts for the sale of goods.
B)Yes,because if the car is defective,Carlos will have a right to return it to Ahmed.
C)No,because Ahmed is not a merchant.
D)No,Ahmed has not implied so either orally or in writing.

Question 33

Which section of the UCC grants a warranty for fitness for particular purpose?

A)2-315
B)2-102
C)3-115
D)7-104

Question 34

Joe buys watermelon seeds from a seed manufacturer's catalog.The catalog describes the seed Joe buys as "top quality." Joe strongly relies upon this statement in making the purchase.The seeds turn out to be worthless,and Joe sues the manufacturer for breach of express warranty.You are the attorney representing the manufacturer.Which of the following is your best argument for escaping liability?

A)That a catalog statement cannot create an express warranty.
B)That the basis-of-the-bargain requirement was not met.
C)That the alleged warranty was merely sales talk.
D)That the manufacturer did not give a sample or a model of the seeds.

Question 35

What does the term "caveat emptor" mean?

A)Let the seller beware
B)Let the buyer beware
C)Taking of the body
D)Justice for all

Question 36

Palmer goes to a truck dealership and asks for a truck capable of handling a 5000-pound load.He makes it clear that it is up to the salesman to select an appropriate truck.Without saying anything about the truck's load-carrying capacity,the salesman selects a certain truck for Palmer.Relying on the salesman's choice,Palmer buys the truck in question.However,the truck can only handle a 2500-pound load.Palmer wants to sue the dealership because he did not get the truck he desired.Which of the following product liability theories gives Palmer his best chance of recovery?

A)Express warranty
B)Implied warranty of fitness
C)Implied warranty of merchantability
D)Section 402A

Question 37

A(n)________ is created by operation of law rather than the seller's express statements.

A)endorsement
B)advertisement
C)express warranty
D)implied warranty

Question 38

Joe is going on a "survival hike" in the desert.He goes to a sporting goods store,describes the hike,and asks the salesman to select suitable hiking boots for him.The boots the salesman suggests are well made and are appropriate for normal hiking,but are not suitable for Joe's plans.Relying on the salesman's selection,Joe buys the boots.After he suffers personal injury because the boots prove inadequate for the survival hike,Joe sues the store.Joe can recover under:

A)the implied warranty of merchantability.
B)the implied warranty of fitness.
C)both the implied warranty of fitness and the implied warranty of merchantability.
D)Joe cannot sue for breach because it was his responsibility to select the boots.

Question 39

Which of the following factors will be most important in determining if an express warranty has been created?

A)Whether the statements made by the seller were in writing.
B)Whether the seller intended to create a warranty.
C)Whether the promises became part of the basis of the bargain.
D)Whether the sale was made by a merchant in the regular course of business.

Question 40

Which of the following factors will be most important in determining whether an express warranty has been created concerning goods sold?

A)The seller's description of the goods formed the basis of the bargain.
B)The buyer or seller is a merchant with respect to the goods being sold.
C)The seller intended to create the express warranty.
D)The buyer relied on the seller's statements.

Question 41

What form of negligence involves the duty of a manufacturer to develop a safe product?

A)Negligent design
B)Negligent hiring
C)Negligent battery
D)Incorporation

Question 42

What is the usual UCC time limitation for claiming breach of express and implied warranty after the seller offers the defective goods to the buyer?

A)12 months
B)2 years
C)4 years
D)5 years

Question 43

Which of the following distinguishes the Restatement (Third)from section 402A?

A)It covers design defects.
B)It covers manufacturing defects.
C)It does not require that the product be unreasonably dangerous.
D)It covers sellers engaged in selling the product that harmed the plaintiff.

Question 44

Under the product liability theory of recovery known as strict liability,which parties may be held liable? (Answer using the majority rule used in most states. )

A)The manufacturer only,engaged in the business of making that product
B)Any seller who is a nonmerchant
C)The wholesaler only,engaged in the business of selling that product
D)The buyer of the product

Question 45

Which of the following statements about the Restatement (Third)of Torts is false?

A)It calls for different analyses for different types of defects.
B)It borrows concepts from negligence and strict liability.
C)It does not require that a product be unreasonably dangerous.
D)It has been adopted by enough states to make it a majority rule.

Question 46

Sellers of goods sometimes attempt to disclaim (avoid)their liability under warranties.Which type of warranty disclaimers must be written in order to be effective?

A)Disclaimers of industrywide liabilities.
B)Disclaimers of the warranty of fitness for a particular purpose.
C)Disclaimers of the warranty of the Magnuson-Moss Act.
D)Disclaimers of the warranty of strict liability.

Question 47

Which of the following characterizes cases filed under section 402A?

A)The seller must be engaged in selling the product that allegedly caused harm.
B)The product may not be in a defective condition but must have caused injury.
C)The seller must prove that suitable modifications were made to the product in order to avoid liability.
D)All cases except design-defect ones may be covered under this section.

Question 48

Which of the following is an example of noneconomic damages from a tort case?

A)Money loss from non-performance of one party
B)Money loss from loss of professional time spent associated with contract
C)Pain and suffering
D)Loss of future commerce that was budgeted for one party

Question 49

Which of the following would be most suitable to be tried under Comment k to section 402A of the Restatements (Second)of Torts?

A)Cases related to development of medicines
B)Cases of manufacturing defect
C)Cases of design defect
D)Cases of failure-to-warn

Question 50

Which of the following theories of recovery is likely to be most effective against a disclaimer of liability?

A)Express warranty
B)Implied warranty of merchantability
C)Implied warranty of fitness
D)Section 402A

Question 51

Which damages are awarded to punish the defendant?

A)Punitive
B)Compensatory
C)Monetary
D)Liquidated

Question 52

Under the product liability theory of strict liability as expressed in the Restatement (Second)of Torts,what is an essential fact that must be present if strict liability may be used in a lawsuit as the basis for recovery?

A)The product must be unreasonably dangerous.
B)The product must be un-merchantable.
C)The product must be unfit for the purpose intended by the buyer.
D)The product must be unfit for any purpose.

Question 53

Which of the following is most important for imposing strict liability?

A)Unavoidable circumstances
B)Unreasonably unsafe
C)Unreasonably expensive
D)Unavoidably protected

Question 54

A seller's ability to disclaim implied warranties is sometimes restricted by the doctrine of:

A)unconscionability.
B)remedy limitation.
C)no-privity.
D)commercial impracticability.

Question 55

A(n)________ is a clause attempting to block recovery of certain damages.

A)promissory estoppel
B)condition subsequent
C)implied warranty
D)remedy limitation

Question 56

In order to establish a cause of action based upon strict liability in tort for personal injuries resulting from the use of a defective product,the plaintiff must start the case by proving that the defendant:

A)was engaged in the business of selling the product.
B)failed to exercise due care.
C)defectively designed the product.
D)was in privity of contract with the plaintiff.

Question 57

Several firms within an industry are involved in manufacturing a harmful product.It is impossible to prove which firm produced the product and caused injury.Identify the type of liability that would arise in these circumstances.

A)Industrywide Liability
B)Strict Liability
C)No-privity determination
D)Breach of expresses warranty

Question 58

Which of the following is used by sellers to eliminate any kind of liability that may be claimed by an injured buyer?

A)Warranty
B)Disclaimer
C)Warning
D)Advertisement

Question 59

In cases where a product's risks are open and obvious,many courts hold that:

A)buyers must register a complaint with the seller.
B)strict liability must be applied.
C)the case will be covered under section 402A.
D)there is no duty to warn.

Question 60

Bob,an attorney,purchased licensed software from Bill Able Inc.to prepare his clients' invoices online.The shrinkwrap packaging for the program disks and the software manuals contained a limitation of remedies clause,which limited the buyer's remedies to the $50 purchase price of the software.Bob later discovered that his invoices for the past year were too low due to a malfunction in the software,costing him over $10,000 in lost revenue.Bob sues Bill Able Inc.for breach of warranty.What is the likely result?

A)Bob wins because he has equal bargaining power with Bill Able,Inc.
B)Bob wins because a shrinkwrap's limitation of remedies clause is generally unenforceable.
C)Bob wins because the court will likely view the limitation of remedies clause as unconscionable and unenforceable.
D)Bob loses because the disclaimer is effective.

Question 61

Which of the following refers to a direct contractual relation?

A)Privity of contract
B)Cognizance
C)Connivance
D)Tacit agreement

Question 62

In the case in the text,Wilke v.Woodhouse Ford,Inc. ,the court held that:

A)the plaintiff failed to prove that the defendant was negligent for failure to inspect the van.
B)the defendant was liable because it negligently failed to inspect the van.
C)the implied warranty disclaimer did not violate public policy.
D)the implied warranty disclaimer violated public policy because the plaintiff suffered personal injury.

Question 63

Under privity statutes adopted by some states, which of the following is not considered when determining whether a plaintiff can recover outside privity in warranty cases?

A)Whether it was reasonably foreseeable that a party such as the plaintiff would be harmed by the product defect in question
B)The status of the plaintiff
C)The type of damages the plaintiff has suffered
D)If the plaintiff can meet the reasonable-to-expect test

Question 64

Lazur Corp.entered into a contract with Baker Suppliers,Inc.to purchase a used word processor from Baker.Lazur was engaged in the business of selling new and used word processors to the general public.The contract required Baker to ship the goods to Lazur by common carrier pursuant to the following provision in the contract: "FOB - Baker Suppliers,Inc.loading dock." Baker also represented in the contract that the word processor had been used for only 10 hours by its previous owner.The contract included the provision that the word processor was being sold "as is" and this provision was in larger and different type style than the remainder of the contract.With regard to the contract between Lazur and Baker:

A)an implied warranty of merchantability does not arise unless both Lazur and Baker are merchants.
B)the "as is" provision effectively disclaims the implied warranty of title.
C)no express warranties are created by the contract.
D)the "as is" provision disclaims implied warranties because it is conspicuous.

Question 65

In the case in the text,Bissinger v.New Country Buffet,what was one reason why the intermediate court held that the trial court's decision to grant the suppliers' motion for summary judgment was proper?

A)The suppliers' labels were insufficient because they failed to mention death as a potential risk.
B)The suppliers' labels were insufficient to meet the reasonable care standard.
C)The suppliers had no ability to directly warn customers of restaurants.
D)The suppliers were responsible because the object found in the food did not naturally occur in that food.

Question 66

Under the Magnuson-Moss Act,if a seller gives a consumer a full warranty on consumer goods whose price exceeds $10,the seller:

A)may not limit the duration of any implied warranty.
B)may not modify the duration of any implied warranty.
C)may not disclaim any implied warranty.
D)may not disclaim,modify,or limit the duration of the implied warranty.

Question 67

In Moss v.Batesville Casket Co. ,the case in the text,what did the court hold?

A)The seller breached the implied warranty of merchantability.
B)The seller breached the implied warranty of fitness for a particular purpose.
C)The court found that no warranty was breached.
D)The seller breached the implied warranty of fitness for an ordinary purpose.

Question 68

A disclaimer attempts to eliminate ________;a remedy limitation attempts to block ________.

A)certain damages;liability
B)liability;privity
C)privity;certain damages
D)liability;certain damages

Question 69

A defective product moves ________ when it affects members of the buyer's family,guests in her home,and even bystanders.If the buyer or one of these parties suffers loss because of the defect in the component parts,she may recover in a negligence case against the manufacturer.

A)parallel
B)horizontally
C)vertical
D)straight

Question 70

Adam decides to eat food despite knowing that it is adulterated and brags about it to Dee.Later,Adam falls sick from infection.Adam sues the supplier of the said food for injury suffered by him.The defense which can be taken by the food supplier is:

A)contributory negligence.
B)assumption of risk.
C)product misuse.
D)comparative responsibility.

Question 71

Which of the following is not an example of consequential damages?

A)Nominal damages
B)Personal injury
C)Property damage
D)Indirect economic loss

Question 72

John buys a machine for $10,000 under a contract that excludes consequential damages and limits the buyer's remedies to repair and replacement of defective parts.John later discovers that the machine is not working properly.Under these circumstances if the remedy of limitation is enforceable,to what extent will John be successful?

A)John can recover $10,000.
B)John will have to pay an additional amount for any repair or replacement.
C)John is entitled to any damages since he did not check the machine upon purchase.
D)John can only get the machined replaced or repaired by the seller.

Question 73

________ is the plaintiff's voluntary consent to a known danger.

A)Contributory negligence
B)Product misuse
C)No privity
D)Assumption of risk

Question 74

The case in the text,Giddings & Lewis,Inc.v.Industrial Risk Insurers,is an example of how:

A)the type of harm experienced by the plaintiff can be a factor in the determination of whether the case can proceed on a tort theory.
B)recoveries for foreseeable indirect economic loss sometimes are allowed.
C)courts will allow noneconomic damages but they often place a dollar cap on them.
D)a plaintiff who lacks privity of contract with the defendant.

Question 75

In the case in the text,Branham v.Ford Motor Co. ,the court stated that the plaintiff was required to prove three things at trial for his product liability design defect action.Which of the following is not one of the three requirements?

A)Evidence of a reasonable alternative design
B)The defendant knew the product was dangerous
C)A design flaw in the product
D)How an alterative design would have prevented the product from being unreasonably dangerous

Question 76

In Royal Indemnity Co.v.Tyco Fire Products,LP,the case in the text,why did the high court of Virginia affirm the trial court's judgment?

A)Tyco did not provide an express warranty of future performance for an indefinite period of time.
B)The technical data sheet contained an express warranty of future performance.
C)Royal's delay was excused because of the discovery rule.
D)The record indicated that the language of the technical data sheet became part of the basis of the bargain.

Question 77

Jason sold Sally a car manufactured by ABC Corp.After driving the car for a couple hours,Sally found that the brakes did not function properly making it extremely difficult for her to control the car.When she finally reached home,she called Jason demanding her money back.Jason claimed that she should call ABC Corp. ,who was the manufacturer.According to Jason,he was simply selling the car.Which of the following defenses is Jason using to save himself?

A)No privity
B)Assumption of risk
C)Contributory negligence
D)Disclaimer

Question 78

As demonstrated by the case in the text,Holiday Motor Corp.v.Walters,not all courts recognize the crashworthiness doctrine.However,courts that do recognize this doctrine must determine whether a manufacturer:

A)took relevant and reasonable steps in anticipation of foreseeable harm-causing scenarios.
B)was aware of the foreseeable harm-causing scenarios.
C)designed its vehicle with safety as a main priority.
D)negligently built the vehicle.

Question 79

In a chain of distribution involving defective component parts,the parts may move ________ from their manufacturer to the manufacturer of a product in which those parts are used,and then to a wholesaler and a retailer before reaching the eventual buyer.

A)straight
B)vertically
C)parallel
D)horizontally

Question 80

Which of the following requires that certain classes of lawsuits be brought within defined limits of time after the right to begin them accrued or the right to bring the lawsuit is lost?

A)Mootness doctrine
B)Statute of repose
C)Statute of limitations
D)Ripeness doctrine