Breach of Warranty and Personal Injury
Loss of Consortium: A Derivative Action in Most Jurisdictions
Depending on the jurisdiction, spouses, children, and parents may be able to recover for a “loss of consortium” in personal injury and wrongful death actions. Some states have extended the availability of loss of consortium..
Damages Recoverable for Injuries Affecting Quality of Life
Relatively recently, courts have begun awarding damages in certain cases for “loss of enjoyment of life,” also called “hedonic damages,” named for the ancient Greek school of philosophy called…
Work-Related Injuries and Employer Liability
Workplace injuries are usually followed by a Workers’ Compensation claim filed on behalf of the injured employee. However, in certain situations a lawsuit against the employer may be more appropriate and more rewarding for the…
Breach of Warranty and Personal Injury
Although the public tends to trust the integrity of a product and the company that produces it, not all products are made safely and injury can result from products that are improperly designed, manufactured or distributed.
In order to recover damages for injuries sustained as a result of faulty consumer products, the victim must prove that the product was defective or unreasonably dangerous. One method by which a product’s defectiveness or unreasonable danger can be proven is where there has been a breach of warranty.
A breach of warranty occurs where a product purchased by a consumer is not what the manufacturer, retailer or other individual responsible for product distribution promised. The laws governing breach of warranty are covered under the Uniform Commercial Code (UCC). Two types of warranties are covered under the UCC: express warranties and implied warranties.
Express Warranties
An express warranty is one where a seller “expressly represents” that the product offered has specific qualities. For example, an inflatable raft company promotes its raft as being absolutely puncture-proof. While white water rafting, the raft catches on a rock and is torn, causing injury to the rafters. The rafters could sue for express breach of warranty because the raft was not puncture-proof as promised.
Implied Warranty
An implied warranty exists when the products are assumed to be of good quality simply because they are being offered for sale. Two important implied warranties under the UCC are the warranty of merchantability and fitness for a particular purpose warranty.
A warranty of merchantability is breached where:
- The product is not merchantable – meaning that the product cannot withstand the use for which it is intended. For example, roller skates with mismanufactured wheels that fall off during use are not merchantable because they cannot withstand the normal use of roller skates.
- The seller is a merchant – meaning that the seller of the product must be in the business of selling that product. For example, a person who sells their used roller skates at a garage sale does not provide any warranty of merchantability because she is not deemed to be in the business of selling roller skates.
A warranty of fitness for a particular purpose is breached where the seller is aware that a customer is interested in a product for a particular, but not customary, purpose and the buyer relies, to his detriment, on the seller’s recommendation.
For example, assume a person wants to buy a pair of roller skates to roller skate across the United States. The customary use of roller skates is for recreation, not for such long-range travel. Upon learning of the buyer’s intended use for the roller skates, the seller recommends a certain brand of skates. If the skates give out halfway across the United States and the person is injured, she may be able to sue the seller for breach of warranty for fitness of a particular purpose.