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Exam 19: Warranties and Product Liability

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Question 1

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Max took his family and a couple of friends out to one of the best restaurants in town to celebrate his recent promotion.Unfortunately,several members of the group suffered injuries from items in the food that night.First,Max broke a tooth on an olive pit in one of the olives in his Greek salad.Max's wife shortly thereafter was injured by a piece of glass in her soup.Then one of Max's friends was hurt by some sharp bones in his salmon filet.Max's daughter was hurt by an olive pit that was in her mashed potatoes.His other daughter was hurt be a crusty chicken foot in her chicken salad sandwich.Max's son was injured by biting into the bone in a piece of fried chicken.Wanting to salvage some aspect of the evening,Max stopped at an ice cream shop on the way home.Upon biting into his ice cream,Max broke another tooth on a piece of bone from a cow.The next evening,as Max was straining his dinner before eating it,he wondered which problems from the prior night would support a breach of warranty claim.

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Under the foreign substance test,only the glass in the soup and the olive pit in the baked potatoes would clearly be a breach.The chicken foot and cow bone likely are breaches under the foreign substance test as well,because those parts of the respective animals are never part of the processing of these particular foods.The consumer expectation test would allow recovery for all of the items mentioned under the foreign substance test,and could possibly allow recovery also for the fish bones and olive pit in the salad since those should not have been expected by a consumer.The injury from the piece of fried chicken would likely not be recoverable even under the consumer expectation test since a person should probably expect to possibly fine a bone in a chicken sandwich.

Question 2

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A defect in design can support a strict liability action.

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Because strict liability is a tort doctrine,privity does not apply so in most jurisdictions even bystanders can recover under strict liability.

Which of the following statements regarding product liability is not true?

Under the doctrine of conditional liability,a plaintiff may recover punitive damages if the defendant's conduct has been reckless or intentional.

Little Bobby,who is 5 years old,finds his older brother's "Extendo Sword",a toy sword about a foot long that is sharp and springs out to 5 feet long when a button is pushed on the handle.The label on the sword says it is safe for children over 3 years of age.Bobby pushes the button when the sword is pointed toward his face and,just as all properly functioning "Extendo Swords" do,the sword shot out.Bobby is injured and under products liability,sues the toy store that sold the toy.Bobby will most likely:

The implied warranty of merchantability applies to the box as well as the breakfast cereal inside the box.

The failure to provide adequate instructions never constitutes a legal basis for a strict liability claim.

If a seller or lessor of a good is a merchant with respect to goods of that kind,the sales contract or lease contract contains an implied warranty of merchantability of the good,unless this implied warranty is properly disclaimed.

Strict liability applies to products or services.

In evaluating the adequacy of a product's design,a court may apply a "risk-utility" analysis.

If only one item is defective out of thousands of similar items that were manufactured without defects,this one defective product could not be the basis for a product liability lawsuit.

The implied warranty of merchantability does not apply to food products to be consumed off the premises of a restaurant.

Under the crashworthiness doctrine:

Express warranties are often found in published materials such as advertisements,brochures,and catalogs.

A statute of repose sets a limited time after a product is first sold that a product liability suit can be brought.

The doctrine of caveat emptor means:

Chuck goes to a restaurant and orders a tuna salad sandwich.He takes a bite and breaks a tooth on a bone.Chuck cannot successfully sue the restaurant,because everyone knows that fish have bones and he should have been more careful.

The majority of states have adopted the foreign substance test to determine the merchantability of food products.

In a product liability case based on negligence,all parties in the product's chain of distribution are liable for the injury,even if only one party was negligent.