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.
Negligence
- 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
Problems:
- 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
Problems:
- 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
Problems
- 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
Misrepresentation
- 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
Problems
- 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