The essential elements of a claim based upon an alleged manufacturing defect are:
1. The defendant [__________] was the __________ (manufacturer, supplier, etc.) of a product, namely __________ (identify the product);
2. The product possessed a defect in its manufacture;
3. The defect in manufacture existed when the product left the defendant's possession;
4. The defect in manufacture was a cause of injury to the plaintiff; and
5. Plaintiff's injury resulted from a use of the product that was reasonably foreseeable to the defendant[s].
A defect in the manufacture of a product exists if the product differs from the manufacturer's intended result or if the product differs from apparently identical products from the same manufacturer. | TOP |
The essential elements of a claim based upon an alleged design defect are:
1. The defendant was the ____________ (manufacturer, supplier, etc.) of a product, namely __________ (identify the product);
2. The product possessed a defect in its design;
3. The defect in design existed at the time it left the defendant's possession;
4. The defect in design was a cause of injury to the plaintiff; and
5. Plaintiff's injury resulted from a use of the product that was reasonably foreseeable by the defendant[s].
A product is defective in design:
[if it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner] [.] [, or]
[if there is a risk of danger inherent in the design which outweighs the benefits of that design.]
[In determining whether the benefits of the design outweigh such risks you may consider, among other things, the gravity of the danger posed by the design, the likelihood that such danger would cause damage, the mechanical feasibility of a safer alternate design at the time of manufacture, the financial cost of an improved design, and the adverse consequences to the product and the consumer that would result from an alternate design.] | TOP |
The __________ (manufacturer or seller) of a product is not liable for [injuries] [death] caused by a defect in its design, which existed when the product left the possession of the __________ (manufacturer or seller), if:
1. The product is inherently unsafe and the product is known to be unsafe by the ordinary consumer, who has the ordinary knowledge common to the community, and who consumes the product; and
2. The product is a common consumer product intended for personal consumption. | TOP |
The essential elements of a claim based upon an alleged defect from failure to warn are:
1. The defendant was the manufacturer of a product, namely __________ (identify the product);
2. The product was defective;
3. The product defect was a cause of injury to the plaintiffs;
4. Plaintiff's injury resulted from a use of the product that was reasonably foreseeable to the defendant.
A product is defective if the use of the product in a manner that is reasonably foreseeable by the defendant involves a substantial danger that would not be readily recognized by the ordinary user of the product and the manufacturer knows or should have known of the danger, but fails to give adequate warning of such danger.
[A manufacturer has a duty to provide an adequate warning to the user on how to use the product if a reasonably foreseeable use of the product involves a substantial danger of which the manufacturer either is aware or should be aware, and that would not be readily recognized by the ordinary user.]
[A manufacturer has a duty to provide an adequate warning to the consumer of a product of potential risks or side effects which may follow the foreseeable use of the product, and which are known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge at the time of manufacture and distribution.]
[In the case of prescription drugs, such warning must be given to the physician.] | TOP |
The plaintiff __________ [also] seeks to recover damages based upon a claim of a defective product.
A product may be defective because of a defect in [manufacture] [or] [design] [or] [a failure to adequately warn the consumer of a hazard involved in the foreseeable use of the product]. | TOP |
In this case plaintiff [also] seeks to establish liability on the part of the defendant on one or more different claimed bases of recovery.
The first is the claim that the product in question was defective. I will now instruct on the law as it relates to the claim of a defective product. | TOP |
Comparative fault is negligence on the part of a plaintiff which combining [with the negligence of a defendant] [or] [with a defect in a product] [or] [with negligent or wrongful conduct of others] contributes as a cause in bringing about the injury.
Comparative fault, if any, on the part of plaintiff does not bar recovery by the plaintiff against the defendant but the total amount of damages to which plaintiff would otherwise be entitled shall be reduced by the percentage that plaintiff's comparative fault contributed as a cause to plaintiff's injury. | TOP |
If you find that a cause of plaintiff's injury was [a defendant's negligence] [or] [a defect in the product] and that the comparative fault of the plaintiff was also a cause of said injury, you will determine the amount of damages to be awarded by you as follows:
First: You will determine the total amount of damages to which the plaintiff would be entitled under the court's instructions if plaintiff had not been comparatively at fault.
Second: You will determine what percentage of the combined causes of plaintiff's injury is attributable to plaintiff's comparative fault and what percentage of such combined causes is attributable to the [defective product] [and] [or] [a defendant's negligence].
Third: You will then reduce the total amount of plaintiff's damages by the percentage that plaintiff's comparative fault contributed as a cause to plaintiff's injury.
Fourth: The resulting amount, after making such reduction, will be the amount of your verdict. | TOP |
The plaintiff ____________________ [also] seeks to recover damages based upon a claim of negligence by the [supplier] [manufacturer] of a product.
The essential elements of such a claim are:
1. The defendant was the __________ (manufacturer, supplier, etc.) of a product;
2. The defendant was negligent; and
3. The negligence of the defendant was a cause of injury and damage to the plaintiff. | TOP |
One who supplies a product [directly or through a third person,] for another to use, which the supplier knows or has reason to know is dangerous or is likely to be dangerous for the use for which it is supplied, has a duty to use reasonable care to give warning of the dangerous condition of the product or of facts which make it likely to be dangerous to those whom the supplier should expect to use the product or be endangered by its probable use, if the supplier has reason to believe that they will not realize its dangerous condition. A failure to fulfill that duty is negligence.
This rule applies to a __________ (type of supplier) of a product. | TOP |
One who supplies a product [directly or through a third person,] for another to use, which the supplier knows or has reason to know is dangerous or is likely to be dangerous for the use for which it is supplied, has a duty to use reasonable care to give warning of the dangerous condition of the product or of facts which make it likely to be dangerous to those whom the supplier should expect to use the product or be endangered by its probable use, if the supplier has reason to believe that they will not realize its dangerous condition. A failure to fulfill that duty is negligence.
This rule applies to a __________ (type of supplier) of a product. | TOP |
The maker of a component part which is incorporated into a product finished or assembled by another has the same duty of care as to such component parts as that of a manufacturer. | TOP |
A seller who puts out as [his] [her] [its] own a product manufactured by another has the same duty of care as that of a manufacturer. | TOP |
Ordinarily, one who sells in the usual course of trade a product which was made by another, does not have a duty to inspect or test the product for possible defects. However, a seller who has reason to know that the product is likely to be dangerously defective, has a duty to exercise reasonable care to inspect and test the product before selling it.
A failure to fulfill that duty is negligence. | TOP |
The [lessor] [bailor] of an article has a duty to those whom [he] [or] [she] should expect to use it, or be endangered by its probable use, to use reasonable care to make it safe for use in a manner for which, and by a person for whose use, it is [leased] [bailed], or to disclose its actual condition to those who may be expected to use it.
A failure to fulfill that duty is negligence. | TOP |
The plaintiff ____________________ [also] seeks to recover damages based upon a claim of negligence by a [lessor] [bailor] of an article of personal property.
[When one gives possession and the right to use personal property to another and the latter agrees to return the same property to [him] [her] at a future time, the transaction is known in law as a bailment. The person who gives possession is known as a bailor. The person who takes possession is known as a bailee.]
The essential elements of such a claim are:
1. The defendant was a [lessor] [bailor] of an article of property;
2. The defendant was negligent;
3. The negligence of the defendant was a cause of injury, damage, loss or harm to the plaintiff. | TOP |
One who delivers possession of __________ (subject of bailment) to another for the purpose of __________ (kind of bailment) has a duty to warn such other person of any dangerous condition of the article of which the one delivering possession has knowledge and which would constitute a danger to person or property if such other person were not so informed.
A failure to fulfill that duty is negligence. | TOP |
When the bailment is for the benefit of both parties or for the sole benefit of the bailor, the bailor has a duty to those whom [he] [she] should expect to use the property, or be endangered by its probable use, to use reasonable care to make it safe for use in a manner for which, and by a person for whose use, it is bailed, or to disclose its actual condition to those who may be expected to use it.
However, when the bailment is entirely for the benefit of the bailee, the bailor has a duty to use reasonable care to warn the bailee and those whom [he] [she] should expect to use the property, of any defects actually known to the bailor which make the property dangerous for the purpose for which it is ordinarily used. [He] [She] is not liable for defects of which [he] [she] was not aware. | TOP |
The plaintiff __________ [also] seeks to recover damages based upon a claim of breach of warranty.
The essential elements of such a claim are:
1. There was a sale of goods; the defendant was the seller, and plaintiff a buyer;
2. Defendant [expressly] [or] [impliedly] warranted the goods sold;
3. There was a breach of warranty;
4. The breach of warranty caused plaintiff to suffer injury, damage, loss or harm;
[5. The plaintiff gave defendant timely notice of the breach of warranty]. | TOP |
A "sale" consists of the passing of title of goods from the seller to the buyer for a price. [It has been established that] [You must determine if] there was a sale of __________ by __________, as seller, to __________, as buyer, at the time and place alleged by the plaintiff.
[The term "goods" includes the __________ involved in this case.] | TOP |
As used in these instructions "goods" means any personal property [including food]. "Goods" is used interchangeably with the words "product" and "article". ["Goods" includes the __________ involved in this case.]
As used in these instructions "goods" means any personal property [including food]. "Goods" is used interchangeably with the words "product" and "article". ["Goods" includes the __________ involved in this case.] | TOP |
The term "affirmation of fact" means a positive assertion of a fact or a statement concerning the subject matter of a transaction, which might otherwise be only an expression of opinion, which is affirmed as an existing fact material to the transaction and reasonably induces the other party to rely upon it as a fact. | TOP |
One of the elements of a sale of goods may be an affirmation of fact or promise by the seller that the goods possess certain characteristics. Such an affirmation of fact or promise is called a warranty. It may be made expressly in so many words by the seller or it may be implied from the circumstances of the sale. | TOP |
One of the elements of a contract to __________ may be an affirmation of fact or promise that the [goods] [__________] possess certain characteristics. Such an affirmation of fact or promise is called a warranty. It may be made expressly in so many words or it may be implied from the circumstances of the contract. | TOP |
Any affirmation of fact [or promise] made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise. Such affirmation [or promise] may be oral or in writing.
[Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.]
[Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.]
No particular word or form of expression is necessary to create an express warranty, nor is it necessary that the seller use formal words such as "warrant" or "guarantee" or that seller have a specific intention to make a warranty.
[No affirmation of the value of the goods shall be construed to create a warranty.] [No statement purporting to be merely the seller's opinion or commendation of the goods shall be construed to create a warranty.] | TOP |
An opinion is the expression of a conclusion or judgment which does not purport to be based on actual knowledge. In determining whether a particular statement was a statement of fact or merely an expression of opinion, you may consider the surrounding circumstances under which it was made, the manner in which the statement was made and the ordinary effect of the words used. You may also consider the relationship of the parties and the subject matter with which the statement was concerned. | TOP |
Where the seller at the time of the sale has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such purpose.
[This warranty is known as the implied warranty of fitness.] | TOP |
When food is purchased, there is an implied warranty that it is reasonably fit for human consumption.
[Food is not reasonably fit for human consumption when it contains a foreign substance, which is likely to cause injury to the consumer.]
[Food is reasonably fit for human consumption although it may contain a bone or other substance which is natural to that type of food and might reasonably be anticipated by the consumer. Only those substances which are not natural to the type of food concerned may be classed as foreign substances. It is for you to decide from the evidence whether there was a foreign substance in the food involved in this case at the time it was [sold to] [and] [consumed by] the plaintiff.]
This warranty is known as the implied warranty of fitness of food. | TOP |
In a sale of goods such as that which [is claimed to have] occurred in this case, there is an implied warranty that the goods shall be merchantable. By this is meant that the goods are at least fit for the ordinary purposes for which such goods are used [and shall at least conform to the promises or affirmations of fact made on the container or label, if any].
[This warranty is referred to as the implied warranty of merchantability.] | TOP |
When goods are supplied under a contract [to] [for] [of] __________ there is an implied warranty that the goods will be reasonably suitable for the purpose[s] for which such goods are ordinarily used. | TOP |
An implied warranty that the goods will be of a particular quality or fit for a particular purpose may arise [from the course of dealing between the seller and the buyer or] by a usage of trade. A usage of trade is any practice or method of dealing having such regularity of observance in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question. [A course of dealing is a sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.] | TOP |
Any warranty of the ________________ sold to ________________ extended to the plaintiff ________________. | TOP |
Any warranty that the goods involved in this case possessed certain characteristics or were suitable for a certain purpose was based on the assumption that the goods would be used by a normal person. There is no breach of warranty when a product is harmless to a normal person.
If you should find that whatever injury or damage the plaintiff suffered in this case resulted solely from an allergy or physical hypersensitivity to which normal persons are not subject, then plaintiff cannot recover damages for breach of warranty. | TOP |
Any warranty of the goods involved in this case was based on the assumption that they would be used in a reasonable manner appropriate to the purpose for which they were intended. If you should find that whatever injury or damage the plaintiff suffered in this case resulted solely from plaintiff's improper use of the goods involved, then plaintiff cannot recover damages for breach of warranty. | TOP |
If the buyer before making the purchase has examined the goods [or the sample] [or model] as fully as desired or has refused to make such examination when demanded by seller, there is no implied warranty from the seller as to defects which a reasonable examination ought in the circumstances to have revealed. The examination or refusal to examine will not, however, relieve the seller from liability for defects which could not have been discovered by a reasonable inspection.
[The buyer may rely on an express warranty even though an opportunity to examine the goods before making the purchase may have been available. If the goods were actually examined, the buyer may still rely on the seller's express warranty rather than the examination as to any defect which is latent and concealed.] | TOP |
The buyer and seller may agree that there shall be no express warranties relating to the goods [or they may agree that only certain warranties shall apply and all others be excluded]. If such an agreement has been made, there can be no express warranty contrary to its terms. | TOP |
Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is", "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty.
[Also, the implied warranty of merchantability may be excluded or modified if, at the time of the sale, the seller specifically makes known to the buyer that the warranty of merchantability is excluded or modified and if this is made by a writing it must be conspicuous.]
[Also, the implied warranty of fitness for a particular purpose may be excluded or modified by a notice in writing to that effect or to the effect that there are no warranties which extend beyond the description of the goods and such notice must be conspicuous.]
[A written term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it.] | TOP |
A warranty will not be implied contrary to [a course of dealing or course of performance between the seller and the buyer] [or] [a usage of trade]. [A usage of trade is any practice or method of dealing having such regularity of observance in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question]. [A course of dealing is a sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.] | TOP |
One who seeks recovery for breach of warranty may not recover damages for injuries caused by use of a product which occurred after the person learned of the defect or condition which is claimed to constitute a breach of warranty, unless you find that under the particular circumstances a person of ordinary prudence would have used the product despite knowledge of such defect or condition.
Nor may a party recover for injuries caused by use of the product which occurred after such defect could have been discovered by the party in the exercise of ordinary care, unless you find that under the circumstances a person of ordinary prudence would have used the product without such inspection as would have revealed the defect.
However, a party may recover for injuries caused by a breach of warranty before the defect or condition constituting the breach was discovered or could have been discovered by the party in the exercise of ordinary care. | TOP |
[There is a breach of warranty when the goods sold do not reasonably conform to the expressly [warranted] [or] [promised] quality, characteristic or performance.]
[There is a breach of the implied warranty of fitness, if the goods sold were not reasonably fit for the purposes for which they were sold.]
[There is a breach of the implied warranty of fitness for food if the food sold was not reasonably fit for human consumption.]
[There is a breach of the implied warranty of merchantability if the goods sold were not reasonably suitable for the ordinary purposes for which such goods are used.]
[There is a breach of the implied warranty of merchantability if the goods sold did not reasonably conform to the promises or affirmations made on the [container] [or] [label].] | TOP |
A seller is not liable for a breach of warranty unless the buyer gave the seller notice of such breach within a reasonable time after the buyer knew, or as a reasonable person ought to have known of the alleged [defect in the goods] [breach of warranty]. What amounts to a reasonable time depends on the circumstances and the kind of product involved.
Notice may be oral or in writing; no particular form of notice is required. It merely must inform the seller of the alleged breach of warranty and the buyer's intention to look to the seller for damages. Whether the buyer gave this information to the seller and if so whether the seller acted within a reasonable time in this case is for you to determine.
[For the purposes of this instruction, the word "seller" includes the manufacturer, and the word "buyer" includes __________.] | TOP |