Accompanying claims to defective product under 402A

Under 402A, a plaintiff would allege a variety of claims along with a claim for defective product. Restatement (Third) seeks to encourage plaintiffs to making a unified claim. Below is a brief description and critique of the claims that typically accompany a defective product claim under 402A.


  • Allows recovery if the defendant failed to exercise reasonable care in the manufacturing or distribution of its product and the plaintiff was injured by this failure


  • Often difficult to prove that a manufacturer’s negligence led to the defect that injured the plaintiff; although a plaintiff can invoke res ipsa loquitur, the jury may deny negligence recovery, accepting the defendant’s argument that although it used due care such defects may still occur
  • Will frequently provide no remedy against the available defendant (personal j-d issues; i.e. Asahi)

Breach of express warranty (UCC 2-313)

  • Allows recovery if a seller makes specific representations about the qualities of a product, and the buyer is injured due to the failure of the goods to fulfill those representations


  • Only applies when specific representations were made to the buyer about the product feature that caused the injury
  • Statutory notice provisions
  • The claim can only arise if the feature that was the subject of the warranty causes the injury

Breach of Implied Warranty of Merchantability

  • A plaintiff may recover by showing that the defendant was a dealer in goods of that kind, sold the goods, that they were not fit for the ordinary purposes for which they were sold, and that she suffered personal injury as a result of their unfitness for that purpose
  • Allows recovery without any showing of negligence or misrepresentation by the seller


  • It can be disclaimed, if it is done clearly
  • UCC has alternative limits to who can recover
  • Requires timely notice of the breach to the seller


  • The defendant made a public misrepresentation (intentionally, recklessly, negligently, or innocently) about a material fact, the plaintiff acted in reliance, and suffered injury because the product was not as represented by the seller
  • The plaintiff may recover even if the product is not defective, as long as failure to live up to the representations led to the plaintiff’s injury


  • Must have been an inaccurate representation by the seller about the particular characteristic of the product that led to the plaintiff’s injury
  • May not support recovery by third parties such as bystanders