a. Three elements of a cause of action i. Misrepresentation of fact (fact is info that is objectively verifiable excluding seller’s talk like opinions) 1-2 are seller’s words. 3-4 are seller’s conduct. 1. Affirmation of fact or promise, or 2. Description of goods, or 3. Sample, or 4. Model (floor model) ii. Justifiable reliance by P 1. “Basis of the bargain” (any description of goods other than the sellers opinion becomes the basis of the bargain) – you must prove the defendant would have relied on the info if given. Not necessary that P actually relied on representation. It is enough that the P would be justified in relying. a. Case: Martin v. American Medical (4 th Cir. 1997) Implant proved not to be sterile, causing infection. P sued D (provider of implant, not surgeon) for breach of express warranty. Co stated the implant was sterile to doctors, not P. P would have justifiably relied that it was though, so P wins. iii. P is damaged as a result 1. Personal injury 6
2. Economic loss – value promised v. value received (bargain damaged) and monetary losses that flow form not getting what you bargained for. b. Cases for Breach of Express Warranty i. Klages v. General Ordinance Equip. (Pa. 1976) 1. Mace weapon claiming it will instantly stop and subdue entire groups for 15 to 20 minutes. This is factual info that was misrepresented. P recovers damages. ii. Lastovich v. Ford Motor (Minn. 1987) 1. P drove on rough terrain and Ford did not repair truck because P’s expectations exceeded written warranty, but the TV Ads showed “built tough” on rough terrain. This counts as express warranty and P recovers damages. III. Breach of Implied Warranty of Merchantability (IWM) – arises from the act of selling as matter of law (versus Express, where seller’s words/conduct create warranty) a. Applies when: i. Contract for the sale of “goods” (transferrable and moveable) and ii. The seller is a merchant (makes a living selling goods of a kind) b. “Merchantable” = fit for ordinary purpose for which goods are used for c. Cases: i. Webster v. Blue Ship Tea room (Mass. 1964) 1. Food = ordinary purpose is to eat it. P chokes on fish bone, which is a natural ingredient in clam chowder. P sues for breach of IWM b/c it’s not fit to eat. P lost due to foreign substance test (fishbone is not foreign in clam chowder) and consumer expectation test (consumer should reasonably expect to find a fishbone in clam chowder. Not all foods fit this. You don’t expect chicken bones in a chicken salad). ii. Welch v. Fitzgerald-Hicks Dodge (1981) 1. Car was shimmying, and the courts determined whether the shimmying caused the car to be unmerchantable. Although bothersome, the car would NOT pass without objection in the automotive industry. Car is NOT fit for ordinary purpose, safely driving. P recovers, car is not merchantable.
- Spring '08