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for something that it was not intended to do. Finally the defendant can argue that the plaintiff knowingly used the product in a risky way. Under the preemption defense, the defendant can claim that their product was designed under federal standards and that they were compliant with all safety laws and standards (20.3 Negligence, p. 690-91, 2012). The second theory related to product liability claims is breach of warranty. A warranty is a type of contract, expressed or implied, between the manufacturer and the product purchaser. In order for a plaintiff to make a successful claim against the product’s manufacturer for breach of warranty, the plaintiff must prove that a warranty existed between them and that the defendant breached that warranty. Additionally, the plaintiff must prove that their injuries were a direct result of the defendant’s breach of warranty.
As mentioned in the previous paragraph a warranty between the manufacture and the consumer is either expressed or implied. An expressed warranty is either spoken or written and is a guarantee that the product will meet a certain level of quality and reliability. If and when the product fails, the manufacture will fix or replace the product at no charge ("What are Express and Implied Warranties? – FindLaw”, 2016). These types of warranties can be found on the product’s label or packaging. A verbally expressed warranty can be as simple as a store employeestating “I guarantee these tires will last you 90,000 miles.” There is also a type of expressed warranties that do not use the words “guaranteed” or “warranty”, but they still are considered expressed warranties. An example of this would be a box of light bulbs that states “lasts up to 20,000 hours.” ("What are Express and Implied Warranties? – FindLaw”, 2016). When a consumer purchases a product, they are covered by an implied warranty of merchantability, meaning that it is guaranteed to work as claimed. The federal law has its own guidelines that define “merchantable”. The federal law defines merchantable with the following criteria: the manufacture (a) must conform to the standards of the trade as applicable to the contract for sale, (b) the product must be fit for the purposes such as goods ordinarily used, even if the buyer ordered them for use otherwise, (c) the product must be uniform as to quality and quantity, within tolerances of the contract for sale, (d) the product must be packaged and labeled per the contract for sale; (e) the product must meet the specifications on the package labels, even if not so specified by the contract for sale. The manufacturer can sometimes get around product liability with labeling the product with words or phrase such as “sold as is”. This is most often used in the sale of used goods. A defendant can escape liability is a product liability case by marketing the product with phrases such as “with all faults” and “merchantability in the disclaimer”. Lastly, a plaintiff may have a complaint under the implied warranty of fitness. Implied warranty of fitness is when a product is guaranteed for a different purpose than what the manufacturer explicitly intended comes with. For example, you verbally ask the shoe salesman